Broomfield, J.:—

In this case a decree was obtained against the appellants when they were minors and represented by the Deputy Nazir as guardian ad litem. Before the decree in the suit was passed one of them attained majority and he filed an appeal against the decree which was unsuccessful. Thereafter the appellants brought a suit to set aside the decree on the ground of the gross negligence of their guardian. Nothing in the nature of fraud has been alleged.

The lower Courts have dismissed the suit on a preliminary ground. They held that the suit is rendered incompetent by the fact that an appeal was filed by one of the present plaintiffs. It seems that the preliminary issue was framed at a late stage in the proceedings. It was in this form “Are plaintiffs precluded from resorting to the alternative remedy by way of a separate suit?” The Subordinate Judge who tried the suit merely held that they are precluded without giving reasons. He says, “It is noticeable that they filed an appeal against that decree which was however dismissed. They are thus precluded from resorting to the alternative remedy by way of a separate suit.” The greater part of the judgment of the learned District Judge is taken up with a discussion of the question whether this preliminary issue was really argued as distinct from the question of res judicata. He held that it was and his finding on the issue is expressed in this way. “As out of the two remedies open to him (i.e the plaintiff who had attained majority), he had chosen one and got a decision in it, the present suit was obviously barred. It is not maintainable.”

We are informed by the learned advocates appearing before us that the decision of the lower Courts was really based on a dictum of Mr. Justice Jackson, in the Madras High Court in an unreported case, S.A No. 1155 of 1928. The facts there were that a decree was obtained against a minor represented by her guardian and the minor on attaining majority filed an appeal against that decree which was dismissed and subsequently sought to set aside the decree in a separate suit on the ground of the guardian's negligence. Jackson J. held that the suit was not maintainable. The judgment is not fully reported, but the learned Judge appears to have said “If a minor having become an adult brings an appeal and gets judgment, from the appellate Court, he cannot then sue to have the decree set aside on the ground of the guardian's negligence.” It may be mentioned that in the present case one of the plaintiffs concerned is still a minor and therefore the case cited may be distinguishable on the facts.

Apart from that, however, we are not prepared to accept the proposition that the present suit is barred by what has been described by learned advocates as the doctrine of election. In the first place, as the learned advocate for the appellants has pointed out, no question of election can properly be said to arise without any evidence to show that the first appellant was aware that there were two courses open to him. Then again there is no question of approbate and reprobate. It is not as if the appellants had gained any advantage by their appeal. Nor is it a case of ratification. It cannot be said that the filing of an appeal by the first appellant after he became a major in which he sought to get the decree set aside amounts to a ratification of that decree.

The learned advocate for the respondents sought to support the judgment of the lower Courts on a different ground. His case is that the lower Court's decree in the original suit having been confirmed by the appellate Court, it becomes merged in the appellate Court's decree. The only subsisting decree is that of the appellate Court and that is the only decree which can be set aside. But the appeal was filed by the first appellant when he was a major and therefore it is contended it is not open to him, being a major, to bring a suit to set aside a decree which was obtained when he was a minor on the ground that it was obtained during his minority owing to the negligence of his guardian. The answer to this argument seems to me to be that assuming the facts alleged to be true—and that assumption we must make for the purpose of dealing with this preliminary point—the decrees were both obtained as the result of the gross negligence of the guardian during the minority of the appellants, one of whom in fact is still a minor. The judgment of the appellate Court would naturally be based on the evidence in the trial Court. It should be noted that we are not at this stage concerned with any question of res judicata. In the grounds of appeal in the former case it was not alleged that the guardian had been negligent and the appellants' case is that at that time the first appellant was not aware of the facts. Assuming that a suit lies by or on behalf of a minor to set aside a decree obtained against him on the ground of the gross negligence of his guardian ad litem, we do not consider that the right of suit would be lost merely by reason of the fact that an appeal was brought by one of the minors after attaining majority apart from any question of res judicata. We hold, therefore, that the finding of the lower Courts on this preliminary point is wrong. In the ordinary way we should send the case back to the trial Court for disposal of the other issues including the issue of res judicata.

It has been suggested, however, that the plaintiffs have no cause of action in any case or rather that the suit which they have brought to set aside the decree is incompetent. This contention is based on a judgment of the learned Chief Justice in Auraj Joharmal v. Dalpat Supadu, where it was held that in the absence of fraud or collusion, a minor cannot challenge in an independent suit the validity of a decree duly passed against him on the mere ground of negligence of his guardian ad litem, however gross that negligence may be. The learned Chief Justice relied upon Raghubar Dyal Sahu v. Bhikya Lal Misser, Beni Prasad v. Lajja Ram and Imam Din v. Puran Chand and expressed dissent from the contrary view taken in Lalla Sheo Churn Lal v. Ramnandan Dobey and Siraj Fatma v. Mahmud Ali.(6) He pointed out that in the latter case the Court went largely on the ground that in England there is in a minor a substantive right to set aside a decree against him on the ground of negligence by the guardian, and he said that he was not satisfied that such a right in fact exists. Apparently no Bombay cases were cited before the learned Chief Justice, and he says in the judgment “There appears to be no authority of this Court on the question.” We have however been referred to several cases of this Court which I may refer to in chronological order.

In Mirali Rahimbhoy v. Rehmoobhoy Habibbhoy(7) the facts were these. An administration suit had been filed against executors on behalf of three infant plaintiffs and it was referred, to the Commissioner to take accounts of the administration. The plaintiffs' guardian withdrew his objections to the defendant's accounts and compromised the suit. The Commissioner reported and a decree was made by consent. Subsequently one of the plaintiffs attained majority and he obtained a rule calling on the defendants to show cause why the proceedings in the Commissioner's office should not be set aside. The Court held that the rule must be discharged, and that the decree being regular in itself and on the face of it correct, could only be set aside either by review or by a suit. It was held therefore that a suit was competent in that case to set aside the decree. But it is to be noted that it does not appear to have been a case of mere negligence. Farran J. in his judgment says (p. 598): “The allegations made by the plaintiff, upon which he bases this application, are, in effect, that his guardian, … was coerced by the defendants to withdraw the surcharges and objections which otherwise she might and could have substantiated.” Further on he says “He (i.e the plaintiff) contents himself with simply alleging that the decree complained of has been obtained by fraud.” This case, therefore, does not really cover the point with which we are concerned. It has never been disputed that a suit lies to set aside a decree on the ground of fraud.

The next case is Cursandas Natha v. Ladkavahu, which was decided by Mr. Justice Farran sitting alone. The facts need not be referred to. In the course of the judgment at p. 576 the learned Judge said: “In truth, a decree passed against an infant properly represented is binding upon him like a decree passed against an adult, but it is open to the infant to impeach such decree by a separate suit in cases where his guardian has been guilty of fraud or negligence in allowing the decree to be passed, against him.” For the latter part of this proposition reliance was placed on two cases, one being Mirali Rahimbhoy v. Rehmoobhoy Habibbhoy, which, as I have said, does not deal with negligence, and the other Lalla Sheo Churn Lal v. Ramanandan Dobey. This is a decision of Trevelyan and Ameer Ali JJ. They lay down the proposition that gross negligence on the part of a next friend in the conduct of a suit brought on behalf of a person under a disability prevents the effect of the bar contained in s. 103 of the Civil Procedure Code, 1882, to the institution of a fresh suit by such person when the disability has ceased. The Court applied what it held to be the English rule of law on this point as being the law of equity and good conscience.

In Hanmantapa v. Jivubai, Ranade J. who gave the judgment said (p. 550): “It is only where fraud or negligence is proved on the part of the guardian of a minor that the right to bring a suit to set aside a previous decision can be claimed by a minor or his administrator. In the Calcutta case (the reference is to Lalla Sheo Churn Lal v. Ramnandan Dobey) gross negligence was held proved, and that has always been held to be a good ground, like fraud or collusion, to extend the protection of the Court in the interest of the minor.” Cursandas Natha v. Ladkavahu was also referred to as assimilating negligence of this sort with fraud. This decision was in 1900 and the point does not appear to have arisen again in this Court until quite recently when in Sureschandra v. Bai Iswari it was held by Barlee and Macklin JJ. that a minor has a right to avoid a decree which is obtained against him owing to gross negligence of his guardian, whether such guardian is a guardian ad litem appointed by the Court, or other guardian. There was no discussion of or reference to authorities. Barlee J. referred to the point as being “clear law”.

Both the Madras and Allahabad High Courts have taken the view that a person who has been impleaded as a minor defendant represented by a guardian ad litem in a suit in which a decree was passed against him can institute a suit to set aside the decree on the ground of gross negligence apart from fraud or collusion: Punnayyah v. Viranna and Siraj Fatma v. Mahmud Ali. The latter case is referred to by the learned Chief Justice in Auraj v. Dalpat.

In Venkata Seshayya v. Kotiswara Rao their Lordships of the Privy Council have pointed out that the provisions of s. 11 of the Civil Procedure Code are mandatory, and the ordinary litigant, who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of s. 44 of the Indian Evidence Act, which, defines with precision the grounds of such avoidance as fraud or collusion. Their Lordships said that it is not for the Court to treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. Lalla Sheo Churn Lal v. Ramnandan Dobey and Punnayyah v. Viranna and two other Madras cases were cited and their Lordships said (p. 272): “Their Lordships are not concerned to discuss the validity of these decisions, or the elusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one.” It cannot be said therefore that the cases referred to or the Bombay cases in which a similar view has been taken have been overruled. What has been decided in the Privy Council case applies to the ordinary litigant, and not necessarily to minors. It may be said, however, that the way in which the point is treated by their Lordships suggests some doubt in their minds as to the validity of the decisions even in the case of minors.

We are impressed, if we may say so with respect, with the reasoning of the learned Chief Justice in Auraj v. Dalpat, and we note that in none of the Bombay cases has there been a full discussion and consideration of the question. As I have pointed out, the first Bombay case was not a case of negligence at all, and the rule which has come to be adopted in this High Court seems really to be based on the supposed rule of English law for which the authority is Raghubar Dyal Sahu v. Bhikya Lal Misser. Under the circumstances we think it desirable that the matter should be determined by a full bench of this Court, and we accordingly refer the following question:—Whether gross negligence apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant can be made the basis of a suit to set aside a decree obtained against him. The decision of this appeal must await the answer of the full bench to this question.

The reference was heard on August 5 and 10, 1938, by a full bench consisting of Beaumont C.J, Broomfield J. and Norman J.

G.P Murdeshwar, for the appellants. The immediate occasion of making the present reference is the decision in Auraj Joharmal v. Dalpat Supadu, which runs counter to decisions of our Court as well as to those of the other High Courts.

In England, the law seems to have been well-settled. In a very early case, Gregory v. Molesworth, which laid down (p. 627): “An infant is as much bound by a judgment in his own action, as if of full age; and this is general, unless gross laches, or fraud and collusion appear in the prochein amy, then the infant might open it by a new bill.” The question was considered in In re Hoghton: Hoghton v. Fiddey where it was held that an infant seeking to set aside a decree passed through negligence or want of knowledge of her guardian was entitled to file a bill of review. In Daniell's Chancery Practice (Vol. 1, p. 116, eighth edition) it is stated: “Where an infant seeks to controvert a judgment on the ground of fraud, collusion or error, he may impeach the judgment by an original action, in which it will be enough for him to say that the judgment was obtained by fraud, or collusion or error.”

The earliest case in Calcutta is that of Raghubar Dyal Sahu v. Bhikya Lal Misser which is against me. It is laid down there that a decree obtained against an infant can be set aside by a separate suit only if it is obtained by fraud or collusion of his guardian. If there is any other ground, the infant should apply for a review. In Calcutta this case stands alone. It was not referred to in the subsequent case of Lalla Sheo Churn Lal v. Ramnandan Dobey, where it was held that “gross negligence on the part of a next friend in the conduct of a suit brought on behalf of a person under a disability prevents the effect of the bar contained in s. 103 (=Order IX, r. 9) of the Civil Procedure Code to the institution of a fresh suit by such person when the disability has ceased.” It was a suit to set aside a judgment in a previous suit, under O. IX, r. 9, of the Civil Procedure Code, 1908. In a still later case, Ram Sarup Lal v. Shah Latafat Hossein, the Calcutta High Court took the same view. The judgment adopts the reasoning in Gregory v. Molesworth

The case of Lalla Sheo Churn Lal v. Ramnandan Dobey was followed the very next year by the Bombay High Court in Cursandas Natha v. Ladkavahu Farran, J. said (p. 576): “In truth, a decree passed against an infant properly represented is binding upon him like a decree passed against an adult, but it is open to the infant to impeach such decree by a separate suit in cases where his guardian has been guilty of fraud or negligence.” The earlier Bombay case of Mirali Rahimbhoy v. Rehmocbhoy Habibbhoy was referred to, but I do not rely on it.

[Broomfield J. Neither of the two Bombay cases was a case of negligence. Both the cases stand on the same footing.]

In Cursandas Natha's case the application did allege negligence. See para 8, cl. (c), p. 573, but even assuming that was not a case of gross negligence, the remarks of Farran J. are pertinent and have always been followed.

The next Bombay case is Hanmantapa v. Jivubai, where it is laid down that: “It is only where fraud or negligence is proved on the part of the guardian of a minor that the right to bring a suit to set aside the previous decision can be claimed by a minor or his administrator.”

The next case in Bombay is Vishnu Narayan v. Dattu Vasudeo, where there is a dictum at p. 1101: “The mere fact that the decree was obtained ex parte does not make it illegal or invalid. It would of course be otherwise if fraud or collusion or gross negligence on the part of the Nazir were proved.” Similarly in the case of Sonubai v. Shivajirao, there are to be found dicta to the same effect. Shah, J. said (p. 654): “It is also clear that a minor on attaining majority can sue to have any decree against him set aside on the ground of fraud or negligence on the part of his next friend or guardian” and cited Cursondas Natha v. Ladkavahu and Lalla Sheo Churn Lal v. Ramnandan Dobey.

In the latest case of Sureshehandra v. Bai Ishwari it is expressly decided that a minor has a right to avoid a decree which is obtained against him owing to gross negligence of his guardian.

Thus, in Bombay there is a long line of cases in support of the view I am contending for.

The case of Lalla Sheo Churn Lal v. Ramnandan Dobey has been followed in other High Courts also. It was so followed by the Chief Court of the Punjab in Ahmad Ali Shah v. Amir Shah, where it was said (p. 126): “… if the guardian of the plaintiff was guilty of gross negligence in conducting proceedings on his behalf in the previous litigation the decree would not be binding on him.” In the later case of Imam, Din v. Puran Chand the Lahore High Court took a contrary view. The judgment contains no reference to the earlier decision of the Punjab Chief Court nor to the later decisions of the Calcutta High Court. The same Judge, however, in the later case of Nawab Singh v. Gurbaksh Singh did not rely on his own decision in Imam Din v. Puran Chand but distinguished the case of Ahmad Ali Shah v. Amir Shah. Later Jafer Ali J. in Fazal Din v. Md. Shafi followed the earlier division bench case. Thus, in Lahore all cases except Imam Din's case show that a minor can bring a separate suit to avoid a decree passed against him through gross negligence of his guardian.

In Allahabad in the early days of Beni Prasad v. Lajja Ram the case of Raghubar Dyal Sahu v. Bhikya Lal Misser was followed and it was held that a decree obtained against an infant properly made a party and properly represented in the case cannot be set aside by means of a separate suit except upon proof of fraud or collusion on the part of the guardian. This view was not adhered to in the later case of Brij Raj v. Ram Sarup, in which the earlier Allahabad case was not referred to nor was there any reference to Raghubar Dyal Sahu v. Bhikya Lal Misser. The case of Lalla Sheo Churn Lal v. Ramnandan Dobey(8) was relied on and it was held that gross negligence on the part of the guardian entitled the minor to the avoidance of proceedings undertaken against him. The same view prevailed in a still recent full bench case of Siraj Fatma v. Mahmud Ali,(9) where, after pointing out the conflicting views between the two earlier Allahabad cases, it was held that the right of a minor to avoid a decree passed against him on the ground of negligence of his guardian ad litem was a substantive right well recognised in English law and equally applicable in India. Although the incidents of fraud or collusion are in many respects different from those of negligence, yet notwithstanding this difference it is clear that their effect in prejudicing the interests of the minor is much the same. There is nothing in s. 2 or s. 44 of the Indian Evidence Act which precludes the plaintiff in such a suit from proving that the judgment previously obtained had been obtained on account of the negligence of the guardian ad litem.

In Madras the course of decisions has been uniform. In Punnayah v. Viranna it was held that a person who had been impleaded as a minor defendant represented by a guardian ad litem in a suit in which a decree was passed ex parte against him, could institute a suit to set aside the decree on the ground of gross negligence, apart from fraud or collusion, of the guardian ad litem in not defending the suit properly on his behalf. The cases of Beni Prasad v. Lajja Ram and Raghubar Dyal Sahu v. Bhikya Lal Misser were dissented from. The decree in that case was avoided. The same view was taken in Moolaswami v. Tatayya, and it was pointed out that the appropriate remedy was a separate suit and not review. This was also the view taken in Gangaraju v. Satyanarayana.

The Patna High Court has consistently adopted the view I am contending for. See Kumar Ganganand Singh v. Maharaja Sir Rameshwar Singh Bahadur and Mathura Singh v. Ram Rudra Pratap Sinha.

The Privy Council case of Venkata Seshayya v. Kotiswara Rao was not a case of a minor at all. It bears on s. 44 of the Indian Evidence Act, 1872. No opinion is expressed about the soundness or otherwise of the decisions in India which laid down that a minor had a substantive right of suit but their Lordships observe that the case of a minor is a special one. Their Lordships dissent from Karri Bapanna v. Yerramma which was rested on s. 44 of the Indian Evidence Act. The effect of the Privy Council ruling is that the decisions relating to the right of a minor did not apply to a suit regarding public religious or charitable property where the first suit is brought by any two persons to represent the charity and the second suit is brought by altogether two different persons to represent the same charity. In the case of a minor, the same person brings the two suits. Section 44 obviously applied to the case of trustees. In the case of minors, s. 44 does not apply. As in England, so in India, a substantive right is given to a minor to avoid a suit in which a decree is passed owing to the negligence of minors.

In the case of Auraj Joharmal v. Dalpat Supadu, all the cases on the point at issue were not cited to the Court. The view of the High Courts of Patna, Madras and Lahore was not mentioned. At the date of the decision there was unanimity in all the High Courts that a separate suit would lie. In Bombay, though there the observations of Farran J. in Cursondas Natha v. Ladkavahu are only dicta yet they were acted upon in later cases. The review application was rejected on the ground that the proper remedy was a suit. Since 1895 the Bombay High Court has favoured the view taken in Lalla Sheo Churn Lal v. Ramnandan Dobey. That view has prevailed for the last forty-seven years, though in the guise of dicta. The judgment in Auraj Joharmal v. Dalpat Supadu has not considered the difficulties that lie in the procedure for review which were emphasized in the Madras cases. In some of those cases the minor would have no remedy, if his remedy was not by way of suit. The case of Punnayyah v. Viranna says review application is not a proper remedy. This view is shared by the High Courts of Allahabad and Patna. Further, the application for review has to be made within the period of ninety days, 1938 and this would entail hardship on the minor.

In Bombay excepting the solitary case of Auraj Joharmal v. Dalpat Supadu, there has been no dissent from the view taken in Lalla Sheo Churn Lal v. Ramnandan Dobey during a period extending from 1895 to 1937. It has also been followed in Sureshchandra v. Bai Ishwari In Calcutta though a contrary view was taken in Raghubar Dyal Sahu v. Bhikya Lal Misser it was given up in Lalla Sheo Churn Lal v. Ramnandan Dobey; and the latter view has been consistently followed since.

The rule of stare decisis should prevail especially where there is a question of right. In some cases the view has been expressed that it is only a question of procedure and there is no substantive right of suit. Even so, it has been laid down that a practice which has been established for some time should not be departed from. In Mandal & Co. v. Fazul Ellahie Jenkins C.J gave effect to the rule to secure “uniformity on questions of procedure under the Code” of Civil Procedure (p. 835). Our High Court has resorted to it in a case where the interpretation of an Act of the legislature was concerned: Commissioner of Income-tax, Bombay v. Jesingbhai Ugarchand. Further many titles are bound to be affected if the view which prevailed so long a time is changed now.

D.R Manerikar, for the respondents. I submit that the view taken in Auraj Joharmal v. Dalpat Supadu is correct on general principles. In a case where the minor is not represented at all, the decree is a nullity, and a suit can lie to set it aside. Secondly, where there is a guardian appointed for the minor and he without leave of the Court compromises the suit, the decree is a nullity. Thirdly, where a proper guardian is appointed by the Court and he appears in the case and there is fraud or collusion in the conduct of the case, the minor has the remedy by way of a suit. In such a case fraud or collusion gives rise to an independent cause of action. A suit is maintainable on the ground of fraud. Fraud includes misrepresentation and coercion. Negligence, however, does not give rise to an independent cause of action. It may give rise to an action for damages against the guardian; but it does not render the decree already passed a nullity or liable to be challenged by a separate suit. It is established that you cannot bring a suit to set aside a decree obtained against you on the ground of even gross and culpable negligence of your pleader or advocate. Your remedy in such a case would be a suit for damages against your pleader or advocate.

I do not say that the minor should not have a remedy. The real question is what is the proper procedure for getting rid of a decree where there is negligence on the part of guardian.

In Raghubar Dyal Sahu v. Bhikya Lal Misser, Field J. has held after a review of the English cases that where a decree is passed against a minor through the negligence of his guardian, the proper remedy is an application for review. The period of ninety days for making such an application (art. 173 of the Indian Limitation Act, 1908) should not deter us, for a minor can apply for review after he attains majority. When review is applied for, on the ground of discovery of a new matter he can get the delay excused under s. 5 of the Indian Limitation Act. In the case of Ram Sarup Lal v. Shah Latafat Hossein the procedure that was followed was by way of review. In Siraj Fatma v. Mahmud Ali the view taken was that both remedies, viz. a suit or a review application, were open to the aggrieved minor.

In England it has been held that where there is negligence of the guardian the proper remedy is by way of review. The question has not been discussed in any case here.

Section 44 of the Indian Evidence Act, 1872, gives relief only in cases where a decree is passed through “fraud or collusion”. It applies to adults as well as to minors.

The effect of the ruling of the Privy Council in Venkata Seshayya v. Kotiswara Rao is that a separate suit by a minor does not lie to get rid of a decree passed against him through the negligence of his guardian. It disapproves of the ruling of the Madras High Court in Kari Bapanna v. Yerramma which was the case of a minor.

If the minor has a right to bring a separate suit to set aside a decree obtained against him on the ground of negligence of his guardian it must be equally competent to him to challenge such a decree by way of defence. In that event he is not hampered by any period of limitation, for the provisions of the Indian Limitation Act apply to suits and not to defences. See Rangnath Sakharam v. Govind Narasinv.

Further whatever is a good ground of action is also an equally good ground of defence. If a decree can be set aside on the ground of negligence of the guardian it can also be resisted by the defence of the negligence of the guardian.

It is not contended that a decree obtained through negligence of a guardian is void: it is only voidable. Just as a decree is voidable on the ground of fraud or collusion, so also it is void on the ground of gross negligence. There is a period of limitation provided to set aside a decree obtained by fraud: art. 95 of the Indian Limitation Act. But there is no similar period of limitation provided for by any article of the Indian Limitation Act for setting aside a decree on the ground of negligence. The absence of any such period in the Indian Limitation Act leads to an inference that no suit can lie on the ground of gross negligence of the guardian; under the Indian Contract Act, 1872, coercion, undue influence, fraud and misrepresentation are mentioned as grounds on which a contract can be avoided; but no mention is made there of the gross negligence of the guardian (see ss. 14 to 19). Even fraud does not make a transaction void; it only makes the transaction voidable at the instance of the party defrauded: Rangnath Sakhamm v. Govind Narasinv. In that case Jenkins C.J said (p. 642): “A defendant is entitled to resist a claim made against him by pleading fraud, and he is entitled to urge that plea though he may not have himself brought a suit to set aside the transaction.” Thus, though a suit to set aside a decree on the ground of fraud may be barred, yet there is no bar of limitation to plead fraud by way of defence. This is the principle underlying s. 44 of the Indian Evidence Act.

The case of Raghubar Dyal Sahu v. Bhikya Lal Misser has not been overruled by the Calcutta High Court in any of the subsequent cases. The case of Lalla Sheo Churn Lal v. Ramnandan Dobey makes no reference to Raghubar Dyal's case. The case of Beni Prasad v. Lajja Ram has not been overruled by the Allahabad High Court. The case of Mathura Singh v. Ram Rudra Prasad Sinha merely follows Siraj Fatma v. Mahmud Ali. In an earlier case in Patna, Raj Gopal Acharjya v. Upendra Acharjya Goswami, the decision in Raghubar Dyal's case was followed. In the Lahore High Court also Raghubar Dyal's case was followed in Imam Din v. Puran Chand. The view of the Calcutta High Court in Raghubar Dyal's case is also the view of the Chancery Courts in England. See also Bachan Singh v. Bhika Singh.

In the case of Cursandas Natha v. Ladkavahu(10) review was sought on the ground that error was apparent on the face of the decree. It was not sought on the ground of gross negligence of the guardian. In that case Farran J. said (p. 575): “The main ground upon which the petition of review is based is that the decree does not provide that the defendant Karamsi Madhowji should have an opportunity of showing cause against it, in so far as it affects his interest, after his attaining majority. This, it is contended, is a mistake or error apparent on the face of the decree.” The Court was not called upon to consider whether an application for review lay on the ground of negligence of guardian. The case of Hanmantapa v. Jivubai simply follows Cursandas Natha's case. In that case, negligence was held not to have been established. In Lalla Sheo Churn Lal v. Ramnandan Dobey negligence was assumed to be on the same footing as fraud and there was a misconception of the law in England on the point.

In Karmali Rahimbhoy v. Rahimbhoy Habibbhoy a rule was taken out by a minor to set aside a consent decree passed against him with the assent of his guardian who had not obtained sanction of the Court. The rule was discharged on the ground that the procedure adopted was irregular.

Having regard to the observations of the Privy Council in Venkata Seshayya v. Kotiswara Rao, it follows as a necessary corrollary that a suit by a minor to set aside a decree on the ground of gross negligence of his guardian does not lie. Their Lordships have expressly dissented from Kari Bapanna v. Yerramma. It is clear from the tenor of their Lordships' judgment that their Lordships entertain doubt as to the correctness of the decisions in Lalla Sheo Churn Lal v. Ramnandan Dobey and Beni Prasad v. Lajja Ram.

Murdeshwar, in reply.

Beaumont, C.J:—The question submitted to this full bench is whether gross negligence apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant can be made the basis of a suit to set aside a decree obtained against him.

Looking at the matter apart from authority, and as one of principle and expediency, it seems to me that it is difficult to justify the suggested cause of action on any recognised principle. A plaintiff who brings a suit against a minor is bound to see that a guardian ad litem is appointed, and it is for the Court to satisfy itself that the person appointed is a proper person. But the plaintiff is not bound, and is not in a position, to see that the guardian ad litem carries out his duties properly, and if the guardian ad litem fails in his duty, it is difficult to see why the plaintiff who has proceeded in good faith in accordance with the rules of the Court should be deprived of the fruits of his judgment. If the cause of action exists, it must rest upon the peculiar anxiety of Courts to protect an infant who cannot protect himself. But it must be recognised that such regard, for infants can only be exercised at the expense of finality in suits against infants, and at the cost of some injustice to an innocent plaintiff or persons claiming through him. To say, as some Judges have done, that it is just and equitable that a minor should not suffer by the negligence of his guardian is to regard only one side of the picture.

The question has led to a good deal of difference of opinion in the High Courts in India, and I will notice the authorities shortly.

The first case is that of Raghubar Dyal Sahu v. Bhikya Lal Misser in which two Judges of the Calcutta High Court held that a minor could not set aside a decree in a substantive suit for that purpose on the ground merely of gross negligence on the part of his guardian ad litem.

In Lalla Sheo Churn Lal v. Ramnandan Dobey in which Raghubar Dyal Sahu v. Bhikya Lal Misser was not referred to, two other Judges of the Calcutta High Court took a contrary view, basing their opinion largely on the English case of In re Hoghton: Hoghton v. Fiddey. The actual decision in Lalla Sheo Churn Lal v. Ramnandan Dobey was that a judgment obtained against a minor owing to the gross negligence of his next friend could not be relied on as res judicata, a decision which seems inconsistent with the decision of the Privy Council to be referred to hereafter. There does not appear to be any authoritative ruling of the Calcutta High Court reconciling these two conflicting views.

In the Madras High Court it was held by a division bench in Punnayyah v. Viranna that a minor could file a suit to set aside an ex parte decree against him on the ground of gross negligence on the part of his guardian ad litem. The Court disagreed with the views expressed in Raghubar Dyal Sahu v. Bhikya Lal Misser, and relied on the English case of In re Hoghton (supra).

In the Lahore High Court there has been a conflict of opinion. In Imam Din v. Puran Chand it was held that negligence on the part of the guardian ad litem was not enough to entitle a minor to challenge the validity of a decree, and in Fazal Din v. Md. Shafi the contrary view was taken.

In Patna also there have been conflicting decisions.

In the Allahabad High Court there was also a conflict of authority, but in a recent full bench case—Siraj Fatma v. Mahmud Ali,—the Court decided that gross negligence on the part of the guardian ad litem was sufficient to enable a minor to challenge a decree. The leading judgment in that case was given by Mr. Justice Sulaiman, as he then was, who entered upon an exhaustive review of all the cases. I think that his judgment was based mainly on the view that this form of action is allowed under English law. He says (p. 659): “That in England gross negligence [on the part] of the guardian is a good ground for the avoidance of a decree against a minor cannot be doubted,” and he took the view that there was no reason why the English law should not be applied, to India. Mr. Justice Sen agreed with Mr. Justice Sulaiman, but Mr. Justice Boys, in a dissenting judgment, considered that such an action would not lie by virtue of s. 2 and s. 44 of the Indian Evidence Act. That view cannot, I think, be supported. Section 44 of the Indian Evidence Act deals with defences open against a judgment in a prior suit relied on as res judicata; but if it be part of the substantive law that a minor can challenge a decree on the ground of negligence by his guardian, it must necessarily be open to him to attack the judgment on that ground without reference to s. 44 of the Indian Evidence Act. The Indian Evidence Act does not destroy substantive rights.

I now come to the Bombay cases. In Cursandas Natha v. Ladkavahu a minor alleged that there was error on the face of the decree because liberty was not reserved to him to challenge the decree after attaining his majority. Mr. Justice Farran rejected that claim. There is a dictum in the judgment based on Lalla Sheo Churn Lal v. Ramnandan Dobey to the effect that it is open to a minor to impeach a decree by a separate suit in cases where his guardian has been guilty of fraud or negligence, but that is no more than a dictum.

In Hanmantapa v. Jivubai a division bench referred to the case of Lalla, Sheo Churn Lal v. Ramanandan Dobey with approval, but as no negligence by the guardian was proved, it was not necessary to decide what would have been the effect of any such negligence.

Similar observations apply to the decision in Vishnu Narayan v. Dattu Vasudeo.

In Sonubai v. Shivajirao it was held by a division bench that the Court under its inherent jurisdiction could set aside an order dismissing an appeal by a minor for default. The 1938 judgment appealed from was challenged on the ground that the guardian ad litem had become insane, but the Court held that it was not necessary to consider the conduct of the guardian since a proper case of setting aside the order in default had been made out. The case, therefore, is not a decision upon the present question, though it is to be noted that both the Judges referred with approval to the case of Lalla Sheo Churn Lal v. Ramnandan Dobey.

In Sureshchandra v. Bai Iswari, which came before a division bench consisting of Mr. Justice Barlee and Mr. Justice Macklin, the plaintiffs sued to set aside a decree passed against their father as manager of the joint family of which they were members on the ground of his negligence. The trial Court held that the plaintiffs were sufficiently represented in the former suit by the father as manager of the joint family and that the matter was res judicata. In appeal the High Court sent the matter back to the lower Court for disposal on merits, and expressed the following opinion (p. 130):—

“It is clear law that a minor has a right to sue to void a decree which is obtained against him owing to gross negligence of his guardian, and the rule would apply whether the guardian be a guardian ad litem appointed by the Court, friend, or even the Hindu law guardian, i.e his father.”

I am unable to agree with this decision. It was not a case of a guardian ad litem, and is therefore not strictly in point on this reference, but I can see no reason why a minor member of a Hindu joint family, who is not a party to a suit because he is sufficiently represented by the manager, should have any better right to set aside the decree than an adult member of the family, who is also represented by the manager. On any view of the matter, the case seems to me to be an unwarranted extension of the principle that a minor can set aside a decree against him on the ground of misconduct of his guardian ad litem.

In Auraj Joharmal v. Dalpat Supadu the matter came before me in second appeal. In the suit the plaintiff challenged a decree on the ground that it had been passed against him when a minor and that his guardian ad litem had been guilty of gross negligence. The suit had been decreed in the lower Courts, but in second appeal I held that the suit did not lie. I thought that the cases in which it had been held that such a suit lay were based on a misconception of English law. This appears to be the only actual decision of the Bombay High Court upon the question at issue, but it is to be noticed that the earlier Bombay cases were not referred to. Had they been cited, I should probably have referred the case to a full bench.

The only case in which this question has been referred to in the Privy Council is that of Venkata Seshayya v. Kotiswara Rao. In that case the Privy Council held that the principle of s. 44 of the Indian Evidence Act could not be extended to cases of gross negligence and that if a judgment were relied on as res judicata, it could not be challenged on the ground that it had been obtained by negligence, which is not a matter referred to in s. 44. Their Lordships cited some of the cases on the present question to which I have referred and made these observations (p. 272):—

“Their Lordships are not concerned to discuss the validity of these decisions, or the elusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian.”

The question at issue, therefore, has not been determined by the Privy Council.

The result of the Indian authorities appears to me to be that—although there is a considerable difference of opinion amongst High Court Judges in India—there is a preponderance of authority in favour of the view that a minor can challenge a decree in a separate suit on the ground that such decree was passed against him owing to the gross negligence of his guardian ad litem. The learned Judges, however, who take this view appear to me to base their judgments on the consideration that such an action lies under English law and that there is no reason why the principles of English law should not be incorporated into India. I therefore propose to consider the question whether the suggested action does lie under English law.

I may say at once that I have succeeded in finding no reported case in the English Courts in which such an action has ever been brought, but there are references to the question in certain text books.

In Simpson on The Law of Infants (4th edn., p. 324) it is stated that “Subject to what has been said above, an infant defendant is as much bound by a judgment or order of the Court as an adult; but he may set it aside for fraud, negligence, error, or new matter.” The learned author then discusses cases of fraud, error, and new matter, but says nothing further about negligence.

In Seton's “Judgments and Orders” (7th edn., p. 939) it is stated:—

“But under extraordinary circumstances (as of fraud, gross negligence, error, or new matter), an infant plaintiff has been allowed to show cause against a decree dismissing his bill; and this applies to infant defendants also.”

The cases referred to in support of this proposition are Napier v. Lady Effingham and Carew v. Johnston, neither of which seems to me to have any real bearing on the question at issue.

In the second edition of Halsbury's Laws of England, Vol. XVII, p. 708, it is stated in paragraph 1456, which deals with judgments obtained in a suit in which an infant is plaintiff represented by his next friend, that “An infant plaintiff is as much bound as an adult by a judgment or order in the cause, even though there may have been irregularities in the conduct of it unless there has been fraud or gross negligence on the part of his next friend.” and the authority cited for that proposition is In re Hoghton (supra). But in paragraph 1464, which deals with the effect of a judgment against an infant, it is stated that “an infant may bring another action to impeach the judgment on the ground of fraud or collusion”—no reference being made to gross negligence. It seems difficult to justify a distinction in this connection between a judgment obtained by or against an infant.

I now turn to the case of In re Hoghton (supra) which is relied on by the Courts in India as an authority for the view that the action in question lies under English law. In that case the infant petitioner was a daughter of Lady Hoghton who had died, having appointed a Colonel Blackburn and a solicitor named Fiddey as executors and trustees. After her death a bill was filed in the name of the infant children against Colonel Blackburn and Mr. Fiddey and an adult child, charging Fiddey with misapplication of the assets of the testatrix, and seeking an administration order. An administration suit was then started by summons on behalf of the infant children against Blackburn and Fiddey, and in December, 1867, an administration decree was made in this suit, but the order was never carried into Chambers. At the same time an order was made staying proceedings in the first suit. Fiddey died in the year 1872. The petitioner prayed that she might be at liberty to exhibit a bill or a supplemental bill in the nature of a bill of review with respect to the misapplication of the trust funds by Fiddey stated in the petition, with a view apparently to making Colonel Blackburn liable. It does not appear exactly what relief was sought by the supplemental bill, but presumably it was either to remove the stay order in the first administration suit, or for liberty to prosecute the decree made in the second suit and to introduce new matter. As far as I can see, there was no question of setting aside any decree made against an infant since no such decree had been passed. And even if leave had been given to bring an action to set aside a decree, it does not appear what was the result of the action. The learned Vice-Chancellor, Sir R. Malins, doubted if leave to file a supplemental bill was necessary, but gave leave in case it was necessary. He started his judgment by saying (p. 576):—

“The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience.”

It is of course deplorable that a minor should suffer for the negligence of his next friend; it is also deplorable that an adult litigant should suffer by the fraud or negligence of his legal adviser, but that does not entitle him to set aside a decree obtained against him in good faith.

If it be the law that it is open to an infant to challenge a decree passed against him on the ground of the negligence of his guardian ad litem, it seems extraordinary that no case on the subject is to be found in the books. The Courts in England no doubt exercise great care in the appointment of a guardian ad litem, but it is too much to suppose that no guardian has ever fallen short of his duty. I may add that in the course of more than twenty-five years practice at the Chancery bar, I never myself came across such an action.

The conclusion I come to is that under English law an infant cannot challenge a decree properly passed against him on the ground that his guardian ad litem was guilty of gross negligence in suffering the decree, and if that is so, I can see no reason why such a cause of action should lie in British India. All the Judges in India who take the view that such a cause of action does lie seem to me to base their opinions on a misconception of the English law on the subject. I think also that they underrate the danger and inexpediency of destroying the finality of decrees duly obtained in suits against minors.

I therefore answer the question propounded in the negative.

Broomfield, J.:—I have mentioned the more important Indian cases bearing on the question referred in my referring judgment. Mr. Murdeshwar for the appellant has cited two other Bombay cases, Vishnu Narayan v. Dattu Vasudeo and Sonubai v. Shivajirao, and has pointed out that the Patna High Court, which formerly took a different view, has now followed Lalla Sheo Churn Lal v. Ramnandan Dobey and Siraj Fatma v. Mahmud Ali.

In most if not all of the cases in which any reasons have been given the proposition that gross negligence on the part of the next friend or guardian ad litem of a minor entitles him to bring a suit to set aside a decree obtained against him is said to be based upon the English law. The first question that falls to be considered is therefore what is the English law. In Lalla Sheo Churn Lal v. Ramnandan Dobey, which appears to be the earliest authority in support of this proposition and is followed in practically all the cases which take that view, reliance was placed on certain passages in Macpherson on Infants and Simpson on the law of Infants, but the only judicial authority cited was In re Hoghton: Hoghton v. Fiddey. I think I am right in saying that this case and Gregory v. Molesworth are the only English cases which have been referred to in any of the cases cited in argument.

Gregory v. Molesworth, decided by Lord Hardwicke in 1747, is commonly cited in the text books as authority for the general rule that a minor is as much bound by a decree as an adult. Lord Hardwicke said, no doubt, “unless gross laches, or fraud and collusion, appear in the prochein ami, then the infant might open it by a new bill.” But it cannot be seriously suggested that this case is any authority for holding that according to English law an infant can or ever could bring a suit to set aside a decree on the ground of the negligence of his next friend or guardian ad litem.

It used to be the practice in England, in the days of the old procedure, when decrees were passed against infants, to give them six months after they came of age to show cause against the decree; and the infant might then put in new answer and examine witnesses to prove this defence, which might be different from what it was before; see the note at the end of the report of Napier v. Lady Effingham. Sometimes, as in the case just mentioned, a similar privilege was accorded to an infant plaintiff whose cause had been mismanaged. But obviously this is something very different from bringing a suit to set aside a decree. What the English Courts did was to reserve to an infant the right to a fair hearing before the decree became final. But this practice has never been transplanted to India. Farran, J. said in Cursandas Natha v. Ladkavahu that the right given to infants by Courts of Equity in England to show cause against a decree within six months of attaining majority has not been preserved to them by the Code of Civil Procedure; and even apart from authority it is evident that this is so.

In In re Hoghton the facts were, very briefly, these. Two suits were filed on behalf of infants against their trustees, one charging one of the trustees with misappropriation and seeking administration, the other an ordinary administration suit. In the first suit an order was obtained staying all further proceedings, ostensibly on the ground that it was not for the benefit of the infants. In the second suit the usual administration decree was made, but (owing to the “gross and inexcusable neglect of duty” on the part of the next friend) it was never “carried into chambers” which means that no further step was taken, although apparently it remained a good decree. The trustee against whom allegations had been made, and who had in fact misappropriated the greater part of the trust funds, died insolvent; and after his death, seven years after the date of the administration decree, one of the infants by a new next friend sought by “a bill or supplemental bill in the nature of a bill of review” to carry on the administration suits with a view to making the other trustee liable. The leave of the Court was sought for filing the bill. Malins V.C thought that it could probably have been filed without leave, but anyhow he granted leave, and in the course of his judgment he said (p. 576):—

“… the proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and will protect her interests.”

In this case then there was no decree against the infants. There was in fact a decree in their favour for administration, and though nothing had been done to enforce it for seven years, there is no suggestion that it had become incapabale of execution. The infant by a new next friend was allowed to reopen the proceedings, not, evidently, in order to avoid the decree, but to make it effective. Here again there was obviously no recognition of any right to bring suit to set aside a decree. In Seton's Judgments and Orders (Chap. 38, Sec. 2, p. 939 of the 7th edn.) this case is cited as authority for the proposition that an infant “is not to suffer by negligence or want of knowledge on the part of his next friend and may impeach a judgment founded on error on the facts.” But this seems to be rather an inference from the Vice-Chancellor's general observations than from anything actually decided in the case.

The statement in Lalla Sheo Churn Lal v. Ramnandan Dobey that “according to the law as administered in England, the gross negligence of his next friend would entitle an infant to obtain the avoidance of proceedings undertaken on his behalf” appears therefore to be a rather misleading generalisation. At any rate there is no support either in English cases or in English practice for the proposition that the negligence of his next friend or guardian ad litem entitles a minor to bring a suit to avoid a decree against him. In fact I think one must go further. The infant's right in English law seems to be no more than the complement of the Court's duty to protect his interests. This duty no doubt had been recognised by the Courts, as for instance in Napier v. Lady Effingham, which was approved by the House of Lords, and the rules of Court were adapted as far as possible to fulfil that duty. But then, as Sulaiman J. pointed out in Siraj Fatma's case, there was no stereotyped and statutory rule of res judicata to be considered. One cannot deduce from the English law that a minor has or had any substantive right in this connection of so definite and far-reaching a nature that the Courts of this country were entitled to say: “this right is based on equity and good conscience: we will adopt it and apply it here; the remedies given by the English law are not available or not effective here, but that is only a matter of procedure; the right cannot be made effective in this country unless the minor is freed from the bar of res judicata and allowed to bring a suit to set aside the decree against him; we must assume therefore that he has a right to bring such a suit.” Whether such an assumption would have been justified if there had been in a minor a substantive right to avoid proceeding is another matter. It cannot be justified if there is no such substantive right.

As the learned Chief Justice pointed out in Auraj Joharmal v. Dalpat Supadu agreeing in that respect with Sulaiman, J. in Siraj Fatma's case, s. 11 of the Code would be no obstacle if there were a substantive right in a minor to avoid a decree. But if the right which has been borrowed from the English law is merely a right to reopen or review proceedings, and the supposed substantive right of suit is merely invented because the English remedy is not available, there is no means of getting rid of the bar of res judicata except by saying that gross negligence is the same as fraud, which it is not, or by arguing, as Sulaiman J. does in Siraj Fatma's case, that a minor represented by a negligent guardian is to be treated as though he was not represented at all. Although I was at first in some degree attracted by this ratio decidendi, I think it will not bear close examination. The question whether minors are properly represented and whether decrees obtained against them are legally valid or not cannot, without risk of hopeless confusion, be left to depend on “the illusory distinction between negligence and gross negligence,” and that is what it would really come to.

I was also inclined at first to doubt whether it is not too late in the day to question the existence of a right which has been assumed to exist in so many cases. But it is only quite recently that there has been anything like unanimity in the views of the High Courts on the point; in our own High Court Lalla Sheo Churn Lal v. Ramnandan Dobey has been approved without any serious examination of the basis, of the minor's supposed remedy by suit [which indeed has not been directly in issue in any of the Bombay cases before Auraj Joharmal v. Dalpat Supadu]; and the authority of that Calcutta case must certainly be said to be shaken to some extent by the Privy Council judgment in Venkata Seshayya v. Kotiswara Rao

I agree that the question should be answered in the negative.

Norman, J.:—I agree, although with some hesitation, that the question referred to us should be answered in the negative. My hesitation is due to the fact that, although the cases decided in India do not agree whether a minor has the right to set aside by a subsequent suit a decree obtained against him owing to the gross negligence of his guardian, all the cases hold that the minor has some remedy. In Raghubar Dyal Sahu v. Bhikya Lal Misser it was held, obiter, that the minor's proper remedy was by way of review of judgment, and all the cases which hold that the minor has no right to institute a fresh suit are founded on this decision. The other set of cases beginning with Lalla Sheo Churn Lal v. Ramnandan Dobey holds that a minor has a right to file a separate suit and some of them, but not all, hold that he may also proceed by way of review on judgment. But as pointed out by Sen J. in Siraj Fatma v. Mahmud Ali it is now doubtful, owing to the decision of the Privy Council in Chhajju Ram v. Neki, whether a remedy by way of review is open to a minor. Therefore, although the question whether a minor has a remedy by way of review is not strictly before us, I cannot but be conscious that a negative answer to the question now propounded will probably shut out a minor whose interests have been neglected by his guardian from any relief other than a suit for damages against the guardian.

Looking at the matter apart from authority, I respectfully agree with my Lord the Chief Justice that the disadvantages of allowing a minor, who has been properly represented, to re-open a decree obtained against him much outweigh the advantages. Apart from the consequences which an innocent plaintiff may suffer, the re-opening of a decree may also affect the rights of third parties who are entitled to the Court's protection as much as minors. If the decree is set aside, it follows that all dealings with the suit property after the decree, and all sales in execution under the decree, must also be set aside. This might result in a general diminution of the price bid for land sold by Court under a decree against a minor, and so the recognition of a minor's rights to reopen a decree, though working for the benefit of particular minors, would not be for the benefit of minors as a class. I have looked at all the cases in which a minor was successful in re-opening a decree obtained against him and I cannot find that in any of them was the right of third parties considered, since in each case the person to suffer by the re-opening of the decree was the decree-holder himself.

As pointed out by my Lord the Chief Justice, the English law on which all the cases in India are founded is by no means clear. Lord Hardwicke's dictum in Gregory v. Molesworth, referred to in Raghubar Dyal Sahu v. Bhikya Lal Misser is nearly obiter. Moreover, it may be doubtful whether a dictum in an English case decided in the year 1747 can have any application in India today where special and careful rules have been made for the protection of the rights of minors in civil actions. In re Hoghton is difficult to follow because the facts are not fully given. But it is clear, as pointed out by my Lord the Chief Justice, that the minor neither asked nor was allowed to re-open a decree passed against him. This case also is more than sixty years old. It is therefore by no means clear that the right allowed to a minor by the Indian decisions would be granted to him under the present day English law.

Order XXXII of the Civil Procedure Code prescribes elaborate rules to secure the proper representation, of minors in civil actions, and it is my experience that civil Courts are more prone to excuse negligence on the part of minor's next friend or guardian ad litem than on the part of an adult litigant.

I therefore think that in the absence of a binding decision of this Court we should, in the interest of finality in litigation and in the interest of third parties who may obtain rights as a result of decrees passed against minors, answer the question propounded to us in the negative.

Answer accordingly.

J.G.R