Manohar Lall, J.:— This is an appeal by the first defendant who is aggrieved by the decision of the learned Subordinate Judge by which he reversed the decision of the learned Munsif and decreed the suit of the plaintiff.

The facts are these Kapil Sahoo was a recorded tenant with respect to a holding of 1.68 acres carrying a rental of Rs. 5-5-0 per annum in mouza Dalang. On the 24th of September, 1928, he sold 17 acres out of this holding to the landlord, defendant no. 1, and parted with possession in favour of the landlord. On the 22nd February, 1937, after the death of Kapil his widow as mother and guardian of her son, the second defendant, sold the remaining 1.51 acres of land to the plaintiff for a sum of Rs. 200. In the sale deed the rental which was shown as payable for this land was not the rental of the whole of the holding but the proportionate rental which was payable for 1.51 acres. This holding which now consisted of 1.51 acres only fell into arrears. The landlord, defendant no. 1, instituted a suit for rent not against the plaintiff but against the original tenant or rather against the minor son of the original tenant through his natural guardian, the mother—the landlord refused to recognise the transfer for reasons which are wholly irrelevant. In that suit notices and summonses were issued both to the minor and to his guardian and were properly served. On the date fixed nobody appeared on behalf of the defendant and a decree was passed ex parte on the 3rd January, 1938. In execution of that decree the holding was sold on the 25th of February and the sale was confirmed on the 29th of March, 1938, the landlord himself becoming the auction purchaser. The plaintiff having been dispossessed instituted a suit giving rise to this appeal on the 10th June, 1938, for recovery of possession after a declaration that the decree of the 3rd January, 1938, was not a rent decree, and secondly that the decree was void and of no effect because the defendant no. 2, a minor, was not represented in the manner required by law—the defect pointed out being that there was no formal order appointing the mother of the minor as the guardian to act for the defendant and to represent him in that action.

The trial court held that the decree was a rent decree because by the arrangement between the recorded tenant and the 16 annas landlord, the original holding was split up into two, one having merged in the superior right of the landlord and the remaining 1.51 acres becoming the separate tenancy with a rental of Rs. 4-4-0. He also held that the suit was not fraudulent or collusive. The learned Munsif also came to the conclusion that although it was true that there was an absence of a formal order appointing the mother as the guardian, but this was a mere irregularity; on the other hand the minor was being described as being represented by his mother guardian and the court accepted that position and ordered the issue of summonses to her representing the minor defendant thereby, sanctioning her appointment as the guardian. He also held that the minor had no defence whatsoever because he had parted with the property in favour of the plaintiff, the mother had no adverse interest against the minor and no prejudice whatsoever was caused to the interest of the minor by the nonappearance of the guardian. Accordingly he dismissed the suit.

In appeal the learned Subordinate Judge has come to the conclusion that the decree was a rent decree and the claim was founded on just dues, but he disagreed with the learned Munsif and held that the decree was a nullity inasmuch as the proposed guardian never consented to act as the guardian of the minor. Accordingly he set aside the decision of the learned Munsif and decreed the plaintiff's suit. Hence the second appeal to this Court.

A large number of cases were cited before us by Mr. P.C Chatterji who appears on behalf of the appellant and by Mr. L.K Das Gupta who appears on behalf of the respondents. But I am satisfied that in this case we must follow the decision given by the Division Bench of this Court in Pande Satdeo Narain v. Ramayan Tewari where it has been held that when a minor is properly a party to a suit, that is to say, if he is represented on the record by a guardian not disqualified from acting, the jurisdiction of the court to try and determine the cause as against the minor is complete and cannot be ousted on proof that the court did not follow the appropriate procedure for the appointment of the guardian as laid down in Order XXXIT of the Code of Civil Procedure. In this case it is found that the minor was represented in the record by the mother who was not disqualified from acting. There is no regular order appointing the mother as the guardian but the very fact that the court issued notices to the mother and the guardian shows that the court did not see any objection to appoint the mother as guardian. If the minor had any defence to make or had suffered the slightest prejudice the matter would have been different and the decree could have been set aside at the instance of the minor. It is to be noticed that the minor in this case is not asking that the decree should be set aside. He is not the plaintiff in the action. Mr. Das Gupta on the other hand relied very strongly upon three or for cases which must be noticed.

Rashidunnisa v. Muhammad Ismail Khan. Their Lordships held that the minor was never a party to the suit because her sister Ulfaunnissa was a married woman and therefore was disqualified by the provisions of the Code from being appointed as guardian in the suit, and Maula Dad Khan's interest was adverse to that of the minor. It will be noticed that in that case also the suit was instituted on behalf of the minor to set aside the decree and the sale which had taken place in execution thereof. The appellant in the ex parte decree was described “under the guardianship of her sister” who by the order of the court was appointed guardian ad litem. This case would have been of help to Mr. Das Gupta if the mother was wholly disqualified to act as the guardian of the minor in this case and if his interest was neglected.

The next case relied on is the case of Rani Chhattra Kumari Debi v. Panda Radha Mohan Singari. In that case Jwala Prasad, J. after considering a large number of cases observed at page 454 that a mere irregularity in the appointment of a guardian ad litem will not render the decree obtained against the minor null and void, unless the interest of the minor has suffered by reason of such an irregularity. If I may say so, I respectfully agree with this observation. The learned Judge at page 455 pointed out that the case before him was of a different character. “The mother of the minor who is his guardian did not know of the suit. No notice or summons was served upon her. No order of the Court was passed appointing her as guardian, No consent, either express or implied, was given by her and at no stage of the case she entered appearance. Therefore, the suit was decreed against the minor without any guardian and the minor was not at all represented in the suit. He is, therefore, not at all bound by the decree or any proceeding in connection with that decree”. This is the passage relied on. The facts in the case before us are, however, entirely different. Here the mother of the minor knew of the suit, notices and summonses were served upon her and the interest of the minor has not at all been neglected, because he had no defence whatsoever, and it must be held impliedly that the court had given its consent to her representing the minor. It may also be noticed, that in the case before Jawala Prasad, J. the decree was sought to be set aside at the instance of the minor himself.

The next case to be noticed is the case of Baraik Ram Govind Singh v. Chowra Uraon. In that case there is an observation of Madan, J. who delivered the judgment of the Division Bench, Courtney Terrell, C.J agreeing, that “the defendants were minors, and notices were served on them through their mothers as guardians. No appearance was made on their behalf and there is no order of the Court appointing the mothers as their guardians, or showing that the guardians consented to act on their behalf. In the circumstances the decrees were rightly found to be a nullity”. He expressly relied on the case of Chhattra Kumari Debi v. Radha Mohan Singhari which I have noticed above. It is to be observed that in second appeal the High Court agreed with the decision of the court below that the decree must be treated as nullity against the minors. In the one case notice under section 190(1) of the Chota Nagupr Tenancy Act was not issued at all and in the other cases the interest of the minors had suffered because the landlords had seized the entire holding after long delays and for non-payment of ridiculously small amount. In other words a serious prejudice to the minors had been proved and the suits had been brought at their instance to recover possession of the holdings after declaring that the former decree did not bind them. In truth the words that the decrees are null and void against the minors are often loosely used. That a decree is void as being without jurisdiction is one thing and that a decree may be set aside as being voidable at the instance of a minor who is not properly represented and has been prejudiced is another. This distinction has been forcefully pointed out by Mr. Justice Das in Satdeo Narain's case already referred.

The next case referred to is the case of Annada Prosad Ghosh v. Upendra Nath Dey Sircar. Reliance was placed upon the observation at page 298 that “where the Court proceeds to make a decree against an infant who is not properly represented by a guardian as contemplated by the Code of Civil Procedure the Court acts without jurisdiction, inasmuch as a decree is made against a person who is in essence not before the Court”. In this case again it must be observed that the learned Judges relied on the important fact that the proposed guardian had never appeared during the trial of the suit and took no steps to protect the interest of the infant. In the present case I have already pointed out several times above that the minor had no interest whatsoever which required to be protected. The holding had been transferred in favour of the plaintiff. It is the plaintiff who seeks to have the decree set aside and not the minor. As was pointed out by my lord the Chief Justice in the course of the argument if the proposed guardian of the minor on receiving notices and summonses from a court thinks that there is no defence which can be made. On behalf of the minor he is not bound to appear and incur unnecessary expenses which would have to be debited to the account of the minor.

Mr. P.C Chatterji on the other hand draws attention to the case of Padarath Mahton v. Hitan Singh where Dawson Miller, C.J and Foster, J. took the same view as was taken in Satdeo Narain's case.

I am of opinion that the learned Subordinate Judge was in error in holding that the decree in this case was a nullity. It must be observed that the learned Subordinate Judge himself was in some difficulty because he had to choose between two apparently contradictory decisions of this Court.

I would allow the appeal, set aside the decision of the learned. Subordinate Judge and restore the decision of the learned Munsif. The appellant is entitled to his costs in all the Courts.

Fazl Ali, C.J:— I agree.

K.D

Appeal allowed.