Posted On by &filed under High Court, Madras High Court.

Madras High Court
Sri Maruthi Swamiar vs A. Subramania Iyer on 28 October, 1927
Equivalent citations: 118 Ind Cas 831
Bench: K Sastriar, Wallace


1. This is an appeal against the dismissal of an application by the appellant to set aside an ex parte final decree passed in a mortgage suit. The present appellant was a minor at the date of the institution of the mortgage suit. His father was appointed his guardian ad litem, the father being the executant of the mortgage-bond. Some defences were raised by the father and a preliminary decree was passed. After the passing of the preliminary decree, the present appellant became a major, but it does not appear that any notice went to him before the final decree was passed. The petitioner-appellant applied to the Subordinate Judge to set aside the ex parte final decree on the ground that he was not served with notice, and that his father whose interests were adverse to him ought not to have been appointed his guardian and did not properly represent him when the preliminary decree was passed, that certain defences which were set out in his petition aid, which ought to have been raised by the father were not raised. The Subordinate Judge dismissed the application on the ground that no notice was necessary before the final decree was passed that as the notice went to his father he was sufficiently represented when the final decree was passed, that the fact that he became a major would make no difference and that it was his duty, if he thought fit to bring himself on the record as a major and vacate the order appointing his father as guardian. He dismissed the application on these grounds without allowing the petitioner to adduce evidence to show that he was not properly represented by his father being appointed guardian owing to the father’s adverse interests. It is argued by Mr. Muthukrishna Iyer for the appellant relying on the authority of Sellappa Goundan v. Masa Naiken 76 Ind. Cas. 1018 : 47 M. 79 : (1923) M.W.N. 775 : 45 M.L.J. 675 : 18 L.W. 838 : 33 M.L.T. 126 : A.I.R. 1924 Mad. 297 that the appointment of the father whose interests as executant must presumably be adverse to the interests of the minor son was absolutely void and consequently that he was not represented throughout these proceedings. Reference was also made to Kanakasundaram Pillai v. Somasundaram Pillai 48 Ind. Cas. 71 : 35 M.L.J. 375 and Bibi Tasliman v. Harihar Mahto 32 C. 253 : 9 C.W.N. 81 (F.B.) to show that notice was necessary to him before decree absolute could be passed on the application of the plaintiff who obtained decree nisi. It is argued by Mr. T. M. Krishnaswami Aiyar for the respondent who relies on the decision in Kuppusawmi Iyenger v. Kamalammall 59 Ind. Cas. 662 : 43 M. 842 : 12 L.W. 243 : 39 M.L.J. 375 that the appointment of a person whose interests are adverse to that of the minor is only on irregularity which renders the proceedings subsequently passed by the Court voidable and not void, that it was the duty of the appellant the moment he attained majority to have come to Court and got the order appointing his father vacated and got permission to conduct further proceedings. We think that if a plaintiff having obtained a preliminary decree wants a final decree to be passed he should give notice to all the parties. It is open to him at any time after the preliminary decree within the period of Limitation to ask for a final decree but as no date is fixed when the preliminary decree is passed for passing the final decree, there is no opportunity for the parties to know when the plaintiff would apply for a final decree. Following the decisions in Kanakasundaram Pillai v. Somasundaram Pillai 48 Ind. Cas. 71 : 35 M.L.J. 375 and Bibi Tasliman v. Harihar Mahto 32 C. 253 : 9 C.W.N. 81 (F.B.) we think that notice has to be given.

2. The next question is whether the notice given to the father is sufficient notice. This again depends on whether the appointment of the father as guardian ad litem is absolutely void or is only voidable. We think that in cases where a person contests the validity of the appointment of a guardian ad litem on the ground that his interests are adverse and where there is no express prohibition in law as to the appointment of a person except on the ground that his interests are adverse, the party must prove that the facts do show that the interests of the guardian ad litem are adverse, and that owing to that fact the guardian did not act in the interests of the minor and did not conduct the defence with proper diligence or raise proper defences to the suit and that the minor has been prejudiced. It is not in many cases possible, in our opinion, to state beforehand whether a man’s interests are adverse or not. That has to be proved. We are not prepared to hold that the appointment of the executant of a document is void without proof of any further facts, nor do we think it is a mere irregularity. It has to be proved that the interests were adverse and that the guardian has not properly defended the suit with the result that the minor is prejudiced. Order XXXII, Rule 9 expressly states that the Court ought not to appoint a person whose interests are adverse. If the facts set out in petitioner’s affidavit are proved, there can be no doubt that the minor has not been properly represented in the suit and all the proceedings would have to be set aside, at his instance. In the present case it is open to the appellant to show facts which would prove that the interests were adverse and that he was not properly represented. If he proves that, we think that the notice of the final decree served on the father would not be a proper notice so as to bind the minor. The preliminary decree and the final decree would be both really decrees in which the minor was not properly represented and the Court would have the power to set aside them. on proof of facts above set out. The present application is to set aside the final decree and. we think that the Subordinate Judge should; have allowed the appellant to adduce evidence on the points we have indicated. The grounds on which he dismissed the application not being tenable, we set aside his order and remand the case for disposal according to law in the light of our observations. The costs of the appeal will abide and follow the result of the petition.

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