JUDGMENT
Chapman, J.
1. This appeal arises out of a suit to set aside a decree on the ground of fraud. The decree had been obtained against the plaintiff during his minority. For the purposes of the suit which resulted in the decree the plaintiff’s mother had been appointed as guardian, his mother being at the time appointed as guardian of his person and property by the District Judge. The suit has been dismissed in both Courts.
2. It has been found that the bond was executed by the mother on behalf of the plaintiff for necessity, that the plaintiff has benefited by the money, and that his mother executed the bond with full knowledge of its contents. We are asked to interfere in second appeal upon the ground that before the order appointing the mother as guardian her consent was not obtained. What happened was that notice was served upon the mother in accordance with the Code of Civil Procedure and she raised no objection to appear for the minor as his guardian. Having regard to the fact that she had executed the bond with full knowledge and for legal necessity it is not surprising that she did not appear in the actual suit, but she did appear in the execution proceeding and she did appear on behalf of the minor in an application for revising the suit. I am of opinion that the mere omission to obtain the consent of the person whom it is proposed to appoint as the guardian is not a defect which is necessarily fatal to the proceeding. The Privy Council have more than once pointed out that a defect in complying with the rule laid down upon the subject of appointing guardians is not necessarily fatal to the proceeding. It must be shown that the minor was prejudiced by the defect. No doubt the Court will be jealous on behalf of the minor in such a case and the Court will be inclined to find that the minor is prejudiced. In the present case there appears to have been overwhelming evidence that there was no sort of prejudice whatever.
3. It is then contended that the mother had an adverse interest to the minor in the suit. The suggestion is that if some other unknown person had been appointed guardian, the minor might have instructed that unknown person that he should impugn the bona fides of his mother and suggest that his ‘ mother had entered into a fraudulent conspiracy against him. That does not appear to me to be a sound suggestion. No doubt when the minor comes of age he can attack the decree obtained against him upon the ground that the person who represented him in the litigation had an adverse interest, but he must show that in that particular case that particular person had in fact a particular adverse interest. He cannot be allowed to succeed upon mere surmise. In the present case the mother was the certificated guardian of the person and property of the minor, and there was in addition ample reason for holding that in fact she had no adverse interest. The result is that I would dismiss the appeal.
Jwala Prasad, J.
4. I agree.