Report No. 54
Order 32, rule 3A (New) (Effect of adverse interest)
32.5. Where a guardian or next friend has conducted the suit with care and honesty, can the decree be set aside on the ground that he had an adverse interest? Of course, the objections which the minor (or other persons looking after his welfare) may like to urge as to the partiality of any person, can always be taken when notice is issued under Order 32, rule 4. But, if the notice does not reach the minor or the person looking after his welfare, then difficulty may arise. On the one hand, it is desirable that a decree of a court should not be liable to be set aside except for strong reasons. On the other hand, justice requires that a minor should not be bound by the acts of a guardian adverse to the minor's interests.
32.6. Discussion of the case-law on the subject must start with a Privy Council decision.1 In that case, the suit was filed on behalf of the minor for a declaration that certain decrees and sales were invalid because the minor had not been properly represented in the proceedings from which they resulted. It was held that the decrees and proceedings were invalid, because the sister of the minor, being a married woman, was not the proper person to be appointed as guardian ad litem, and, as regards the other guardian, who was the minor's uncle, his interest was obviously adverse, as he had purchased in the name of his sons the decree passed against the minor's father, and was thus personally interested in the minor's estate adversely to her. All this was proved in the suit to set aside the decrees and sales, and it was therefore held that the minor was never a party to any of the suits in the proper sense of the term.
1. Rashid-un-Nissa v. Muhammad Ismail, 1999 ILR 31 All 572 (PC).
32.7. The learned Subordinate Judge had found that1 the proceedings impeached in the plaint failed as against the plaintiff (appellant), because she was not properly represented in them. He held that Ulfat-un-nisa, as a married woman, could not have been appointed guardian ad litem, and that Mauladad, whose sons were merely benami purchasers on his behalf, and had an interest adverse to that of the minor, and was therefore disqualified. The High Court on appeal set aside his decree, and dismissed the suit upon the ground that-
"the decrees upon which the execution proceedings were founded are not in any way impeached in the suit, nor could they be. The impeached transactions were proceedings on those decrees in execution, and, this being so, it was the proper course for the plaintiff, if she had any objection to make: to the execution of the decrees, to raise these objections under the provisions of section 244 of the Code of Civil Procedure, and not by a separate suit."
1. Ibid. 582.
32.8. The Privy Council observed-
"With all respect to the learned Judges of the High Court, their Lordships are unable to agree with this conclusion. Section 244 of the Civil Procedure Code applies to questions arising between parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with the provisions of the Code. Their Lordships agree with the Subordinate Judge that the appellant was never a party to any of these suits in the proper sense of the term. "Her sister, Ulfat-un-nisa, was a married woman, and therefore was disqualified under section 457 of the Code from being appointed guardian for the suit, and Mauladad's interest was obviously adverse to that of the minor."
32.9. This decision was followed by the High Court of Madras, and it was held that where the interest of a guardian ad litem is obviously adverse, the decree is anullity1 The High Court of Travancore-Cochin also seems2 to have held that the decree is a nullity.
1. Saddappa Goundan v. Masa Naiken, 1924 ILR 47 Mad 79: AIR 1924 Mad 297.
2. Ismail Ibrahim v. Mathaicheriatt, AIR 196Trav-Co 701.
32.10. In an Allahabad case,1 it was observed-
"It is now settled law that where a guardian ad litem has an interest adverse to the minors, they are to be considered as not having been properly represented in the suit, and the decree is not binding on them."
1. Chiranjilnl v. Syed flyers Ali, AIR 1924 All 751 (Doirnio and Dalai B.).
32.11. In a later Madras case,1 the question whether the notice given to the father was sufficient notice, was considered in the context of a suit on a mortgage where the executant of the mortgage was appointed guardian ad litem of his minor son. The court, referring to the above question, observed-
"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 interest 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."
1. Maruti Swainuar v. Subraniania, AIR 1928 Mad 393 (394).
32.12. In a Calcutta cases Rankin, C.J. doubted whether the Privy Council case1 went so far as to hold that the appointment of a guardian ad litem whose interest was adverse rendered the decree a nullity in every case.
1. Sheikh Abdul Karim v. Thakurdns, (1928) 55 Cal 12 (1): AIR 1928 Cal 844.
32.13. The Bombay High Court has observed1 that where a minor plaintiff is not properly represented in a suit, he is not entitled to ignore the decree passed therein and to file a fresh suit to have the issues tried on the merits. He should sue to set aside the decree in the prior suit, and to revive that suit.
1. Laxman v. Saraswati, AIR 1959 Born 125.
32.14. In a Patna case,1 the suit was filed to set aside the mortgage decree on the ground that the minors were not properly represented by their father, as his interest was adverse. It was held on the evidence that as the defences open to the minors were not put forward by the guardian, the decree was not binding on them but that it cannot be said without going into the merits that the decree was bad simply because the father's interest conflicted with that of the sons.
1. Chitradhar Narain Das v. Khidur Thakur, AIR 1938 Pat 437.
32.15. In a Bombay case1, the position in the case of members of a Hindu joint family was thus summarised-
"In the case of a Hindu joint family where the manager has the power to bind the minor members of the coparcenary by an alienation for legal necessity, it is open to the son to challenge it in a suit brought to enforce the alienation on the ground that although it may be binding on the manager, it is not binding on the minor. His interest may, therefore, conflict with that of the manager, as the defences of both may be separate debt on the family. In such a case it would not be desirable to appoint the manager as the guardian ad litem for the minor in the suit, but if he is so appointed and a decree is passed against the minor's interest in the property, it cannot be said, in absence of fraud or collusion on the party of the manager, that the decree is a nullity merely because the manager ought not to have been appointed as his guardian.
If the minor subsequently sues to set aside the decree, he must show that the alienation was not in fact, binding on him. This would be especially so where the manager is the father who is the natural guardian of the minor and whose personal debts also are binding on the son if they are antecedent to the alienation and are not illegal or immoral. In the present case, there is no proof of fraud or collusion on the part of the father, and the debts for which the mortgage and the sale were made are not shown as not binding on the son. The interests of the father and the son are not thus conflicting. We are of opinion, therefore, that the mortgage decree is not proved to be not binding on the son on this ground."
1. Mahadev v. Shankar, AIR 1943 Bom 387 (390) (Davatia & Lokur JJ.).
32.16. We are of the view that the position should be settled in this respect. Mere adverse interest is not, according to the view of most High Courts, a ground for setting aside the decree. But, where the minor is prejudiced by reason of such adverse interest, the decree can be set aside. These propositions should be enacted into law. At the same time, the ordinary rule that the decree can be set aside on the ground of gross negligence or misconduct on the part of the guardian leading to prejudice, should remain unaffected, since it is independent of any question of adverse interest.
32.17. It was suggested to us that it would be better to consider this point under the Evidence Act, but since it also concerns the Code, we are dealing with it here.
32.18. No doubt, theoretically, an adverse interest should be sufficient for setting aside the decree, because the minor is not represented. But, such a provision would create practical complications, and effect the finality of decrees in numerous suits to which minors are parties. The question is of choice between the abstract pristine view of mere adverse interest (on the one hand), and adverse interest leading to prejudice to the minor (on the other hand). The latter seems to be the present position, and is the only practical view.
32.19. We, therefore, recommend that the following rule should be added in Order 32:
"3A. (1) We decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor; but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under law by reason of the, misconduct or gross negligence on the part of the next friend or guardian for the suit, resulting in prejudice to the interests of the minor."