Das, J.:— On the 7th May 1900. Kumar Kamalanand and Kumar Kalikanand, proprietors of the Srinagar Raj, executed a mortgage bond in favour of the Maharaja of Darbhanga to secure an advance of a large sum of money, partly paid and partly agreed to be paid by the Maharaja to them. Kumar Kamalanand died in 1910, leaving three sons: Ambikanand, since deceased, Ganganand and Achhutyanand and a widow Rani Satyarama. Ganganand and Achhutyanand are Plaintiffs 1 and 2 in this action.
2. On the 28th April 1916, the Maharaja instituted a suit to enforce the mortgage security. The defendants in that suit were (1) Kumar Kalikanand, (2-4) Abhyanand, Bijayanand, and Ghananand, sons of Kumar Kalikanand, (5) Ganganand, and (6) Achhutyanand. Abhyanand, Bijayanand and Ghananand are three remaining plaintiffs in the present suit. All the defendants other than Kumar Kalikanand were minors at the date of the institution of the suit, and they were sued as minors and guardians ad-litem were assigned to each of them. Rani Satyarama was appointed the guardian ad-litem of Ganganand and Achhutyanand, the minor sons of Kumar Kamalanand, and Babu Amrita Lal Mazumdar, a pleader of the Darbhanga Court, was appointed the guardian ad-litem of Abhayanand, Bijayanand and Ghananand, the minor sons of Kumar Kalikanand. On the 11th December 1916, Rani Satyarama presented a petition to the Court in seisin of the mortgage suit stating therein that Ganganand had attained majority and that she should be discharged from further acting as the guardian of Ganganand and Achhutyanand and that Ganganand should be appointed the guardian ad-litem of Achhutyanand. The following order was recorded by the learned Sub-ordinate Judge in the order-sheet in regard to the petition of Rani Satyarama:
Rani Satyarama guardian ad litem of minor Defendants Nos. 5 and 6, files a petition stating that Defendant No. 5 has attained majority and that Dafendant No. 5 should be appointed guardian of his brother the other minor Defendant No. 6. The former fact is supported by an affidavit.
The Defendant No. 5 be allowed to defend his case as major and to file written statement, that the prayer for appointing Defendant No. 5 as guardian of his brother Defendant No. 6 be disallowed and if Rani Satyarama declines to act as the guardian of Defendant No. 6 steps be taken for appointment of another guardian on 8th December 1916.
3. It is alleged by the Maharaja, but which allegation is denied by Ganganand, that Ganganand entered appearance on the 11th July 1917, and actually filed, his written statement on the 24th July 1917.
4. On the 17th December 1918, the Maharaja obtained a mortgage decree by the consent of the parties. He gave up a lac of rupees and the costs of the suit sand gave the defendants in that suit a year to pay the decretal amount which by consent of parties was fixed at Rs. 7,42,131-2-3.
5. On the 15th December 1921, the suit, out of which this appeal arises, was instituted by the plaintiffs-appellants for a declaration that the consent decree of the 17th December 1918, was fraudulent void and in operative and for an injunction restraining the Maharaja from executing his decree against the plaintiffs. The two important defendants in this suit are the Maharaja and Kumar Kalikanand, the Maharaja being Defendant No. 1 and Kumar Kalikanand being Defendant No. 2. The learned Sub-ordinate Judge has dismissed the suit; hence this appeal to this Court.
6. Shortly stated, the allegations made in the plaint as grounds for the reliefs claimed are as follows:
7. Ganganand, Plaintiff No. 1, it is alleged, was born on the 24th September 1898; and, on the death of his father, his uncle Kumar Kalikanand applied for and obtained an order from the District Judge of Purnea appointing him the guardian of the person of Ganganand. According to him, therefore, he attained his majority under the Indian Majority Act on the 24th September 1919. His case accordingly is that, althouth he had attained his majority under his personal law at the date of the consent decree, he was still a minor at that date under the Indian Majority Act by which he was governed; and he contends that the consent decree must accordingly be regarded as a void decree so far as he is concerned, since there was no guardian ad litem in the record of the suit at that date to represent his interest. This is the most serious part of the case as set forth in the plaint.
8. The other grounds, which are common to all the plaintiffs, are that both Kamalanand and Kalikanand were men of reckless dispositions and dissolute habits, and that the Maharaja, being well aware of these facts, agreed to lend money to them “knowing that he would thereby enable the said Kumar Kamalanand and defendant second party fro run in their career of immorality and extravagance.” The plaintiffs go on to assert that even if there was any consideration for the mortgage bond, the same was not executed for any valid necessity or for the benefit of the family and, there were other good and valid defences to the mortgage suit but that the Maharaja in collusion with Kumar Kalikanand caused various steps to be taken in the suit in the name of Rani Satyarama without any knowledge on her part and ultimately caused a compromise petition to be put in fraudulently without any reference either to Plaintiff No. 1 or to the guardians ad litem to sign the petition of compromise without allowing them opportunity to consider whether the settlement was for the benefit of the minors. So far as this part of the case is concerned, the plaintiffs seek to avoid the consent decree on two grounds, first, on the ground that the Maharaja and Kalikanand entered into a fraudulent conspiracy to defeat the interest of the minors; and, secondly, on the ground that in entering into the compromise the guardians ad litem were guilty of gross negligence sufficient in itself to avoid the consent decree.
9. The learned Sub-ordinate Judge, while holding that Ganganand was a minor at the date of the consent decree, has dismissed the suit principally on the ground that Ganganand represented to the Court that he had attained majority and that such a misrepresentation was a fraudulent one disentitling him to the reliefs claimed by him in suit. He has rejected the case of fraud and conspiracy as an idle one and has given effect to some of the contentions raised before him on behalf of the defendant namely, (1) that a fresh suit does not lie to get rid of the consent decree; (2) that Ganganand is estopped from disputing the validity of the consent decree; and (3) that the suit is not maintainable since the preliminary mortgage decree which alone is attacked in the suit has merged in the final decree which is not attacked in this suit. The plaintiffs contest the findings of the learned Sub-ordinate Judge on each and every point decided by him against them; and the defendant while supporting the decree passed by the learned Sub-ordinate Judge attacks the finding as to the age of Ganganand. He also supports the decree on certain grounds which were not put forward by him in the Court below. They are:
(1) That the order of the Court declaring Ganganand as an adult was an order passed by a Court which had jurisdiction to pass that order and cannot be challenged in this suit:
(2) That the position of Ganganand cannot be higher or better than that of a minor in a joint family who has not been made a party to the suit;and that assuming that Ganganand was a minor at the date of the consent decree he is nevertheless bound by it as it was obtained in the presence and with the consent of the Karta of the family who sufficiently represented the interests of every individual member of the joint family including those of Ganganand.
10. Before coming to the only serious question in this appeal, I will deal with some of the short points raised in the judgment of the Court below and in the arguments advanced on behalf of the respondent.
11. I will first deal with the question whether the order of the Court declaring; Ganganand an adult operates as res judicata between the parties so as to bar the right of Ganganand in this suit to raise an issue as to whether he was a minor at the date of the consent decree. The learned Sub-ordinate Judge has found that Ganganand was born on the 24th September 1898. Although his finding, is challenged before us on behalf of the respondent, and I shall have to deal with the arguments in the proper place, I may say at once that there is overwhelming evidence in support of the finding of the learned Sub-ordinate Judge on this point. If the personal law by which Ganganand was governed, had any operation in his case, he was undoubtedly an adult on the 24th. September 1916; but on the 9th July 1910 Kumar Kalikanand had obtained an order from the District Judge of Purnea appointing him the guardian of the person of Ganganand. The appointment so made had the effect of prolonging the minority of Ganganand under the Indian. Majority Act and it is not open to doubt that he attained his majority only when he completed the age of twenty-one years, that is to say on the 24th September 1919. On the 11th December 1916, Bani Satyarama, who had been appointed the guardian ad litem of Ganganand in the mortgage suit presented the following petition to the Court:
In the aforesaid suit the petitioner was appointed guardian of Kumar Ganganand Singh and Achutanand Singh. But Kumar Ganganand Singh has attained majority. Hence it is not necessary for the petitioner to continue to work as his guardian. It is prayed that. Kumar Ganganand Singh be declared major and steps may be taken in the suit accordingly. He may be appointed-guardian of Kumar Achutanand Singh'as well, and the petitioner may be discharged from the guardianship of her both, sons.
12. The petition was supported by the affidavit of Gokhala Prosad in which he stated that he knew “that the said Kumar Ganganand Singh attained majority in the month of September 1916.” The Court thereupon passed the order which I have already set out in full.
13. Now it is dear to my mind that in presenting the petition to the Court Rani Satyarama obviously overlooked the fact either that Kumar Kalikanand had been appointed the guardian of the person of Ganganand or that the appointment of Kumar Kalikanand as the guardian of the person of Ganganand had the effect of prolonging the minority of Ganganand. A mistake was undoubtedly made; and the question is whether the defendant is right in saying that the order passed by the learned Sub-ordinate Judge on the 11th December 1916 on the petition of Rani Satyarama to the effect “that Defendant No. 5,” namely Ganganand “be allowed to defend his case himself as major” is final between the parties disentitling Ganganand to ask the Court to hold that he was in fact a miust at the date of the consent decree. Mr. Sultan Ahmed on behalf of the defendant contends that the learned Sub-ordinate Judge had jurisdiction to pass that order and that the order cannot be regarded as a nullity. The question, however, is not whether the order is a nullity, but whether Ganganand is bound by it. Now it seems to me that, in order to bind Ganganand by the order of the 11th December 1916, it must be shown that Ganganand was a party to the order or that the order was passed with notice to him. In presenting the petition to the Court on the 11th December 1916, Rani Satyarama was in no sense acting as the guardian ad litem of Ganganand. Her position was that the order appointing her the guardian ad litem of Ganganand was no longer in force having regard to the fact that Ganganand had already attained his majority and she asked for a formal order striking out her name from the record of the suit as the guardian ad litem of Ganganand. The Court acceded to the application without serving any notice upon Ganganand; and seven days later, that is to say on the 18th December 1916, directed that “a summons with a copy of plaint be served on Defendant No. 5,” that is Ganganand, “who is no longer a minor.” Now in so far as the Court acted on the hypothesis that Ganganand had attained his majority, the order of the 11th December 1916 was passed not only ex parte but without any notice to Ganganand, since Ganganand did not become a party to the suit until summons was actually served on him. The learned Sub-ordinate Judge himself took the view that Ganganand was not a party to the suit at the date of the order of the 11th December 1916, since a week later he himself directed that summons should be served on Ganganand. In my opinion Ganganand was not a party to the order of the 11th December and is not bound by that order. Since on the hypothesis on which the learned Sub-ordinate Judge acted Ganganand was not a party to the suit on the 11th December 1916, the latter is, in my opinion, entitled to show in this suit that he was in fact a minor at the date of that order. On the hypothesis that Ganganand was a minor at the date of the order of the 11th December 1916, and was, therefore, properly represented by Rani Satyarama, I am of opinion that Ganganand is still entitled to ask to be relieved from the effect of that order since the guardian ad litem presented the application on the footing that she no longer represented the interest of Ganganand. Any other view would involve grave risks to minors in suits either by them or against them, and. I am not prepared to accede to the arguments advanced to us on behalf of the-respondent on this point.
14. I now come to the question whether the plaintiffs, or any of them, are entitled to avoid the consent decree, having regard to the fact that it was fairly and properly obtained against Kumar Kalikanand who was the karta of the joint family, and who represented the interests of the entire joint family. The answer to the argument seems to be that Kumar Kalikanand was not sued as the karta, and as representing the joint family. No doubt it was open to the Maharaja to sue Kumar Kalikanand alone in his capacity as karta of the joint family but the decree in such a suit would always be open to attacks on grounds ordinarily available to the junior members of a Mitakshara family. In order to obviate the risk of further litigation the Maharaja preferred to sue every member of the joint family. It is now too late to say:
“Put me in the position which I would have occupied had I brought a suit and obtained a decree against Kumar Kalikanand in his capacity as the karta of the joint family and dismiss the plaintiffs suit on the ground that they were not necessary parties to the mortgage suit and were effectively represented by Kumar Kalikanand.”
15. I must overrule the argument of the respondent on this point.
16. I will now deal with the question whether it is competent to the plaintiff to institute a suit to set aside a consent decree on the ground that it was obtained by fraud. In the Court below the argument was put in a somewhat different form. It was contended, to quote the actual words of the learned Sub-ordinate Judge, that a separate suit would lie only where the Court had no jurisdiction to decide the case and not where the Court had jurisdiction, but had acted illegally or with material irregularity.
17. The Vakil appearing on behalf of the plaintiffs had no difficulty in showing that a separate suit lies where the previous decree is attacked on ground of fraud or collusion.
18. As I read the judgment of the learned Sub-ordinate Judge, he did dot accede to the argument put forward on behalf of the defendant; but he thought that the suit was not maintainable because, on an examination of the evidence, he found that the allegations as to fraud and collusion were unfounded, and that, in regard to the question of minority, Ganganand was guilty of fraudulent misrepresentation, disentitling him to the reliefs claimed by him. His decision on this issue is, therefore, on merits. In this Court the argument has taken a different form. For the purpose of his argument Mr. Sultan Ahmad has assumed, as he must, the truth of the allegations in the plaint; but he contends that on those allegations, although an application would lie in the mortgage suit itself to set aside the compromise decree, a suit does not lie to set it aside.
19. Now, on an examination of the allegations made in the plaint, it will appear that the plaintiffs are claiming reliefs substantially on two grounds: first, so far as all the plaintiffs are concerned, on the ground that the consent decree was obtained by fraud and was the result of collusion between the Maharaja and Kumar Kalikanand and of gross negligence on the part of the guardians ad-litem; and, secondly, so far as Plaintiff No. 1 is concerned, on the ground that the decree is a nullity so far as he is concerned, and that, in the circumstances, lie is entitled to an injunction restraining the defendant from executing the decree.
20. It is difficult to understand why a suit on these allegations is not maintainable. It has been held in cases far too numerous to mention that, although a Court has inherent power to correct its own proceedings, when it is satisfied that, in passing a particular order it was misled by one of the parties, a suit is the proper remedy where the case is one of fraud on the party. Now, so far as the ground, common to all the plaintiffs is concerned it is difficult to understand how that ground can be investigated except in a properly constituted suit. There is no suggestion in the plaint that, in passing the consent decree the Court was in any way misled by any of the parties. The suggestion is that a fraud was practised, not on the Court, but on the minor defendants to that suit, in so far as the karta of the family colluded with the Maharaja and the guardians ad litem were prevented from considering whether the settlement was for the benefit of the minors. It is this aspect of the case which distinguishes it from Sadho Saran Rai v. Anant Rai*(1) which was a case of fraud practised on the Court.
21. It was then contended that, if the plaintiffs other than Ganganand were represented in the record of the suit by guardians not disqualified from so acting, they cannot impeach the decree ever on the ground that there was gross negligence on the part of the guardian; and reliance was placed on Pande Satdeo Narain v. Ramayan Tewari(2). In my opinion the case cited has nothing to do with the present case. In that case it was contended that a decree obtained against a minor must be considered a nullity if it appeared that the notice of the appointment of the guardian for the suit was not served on the minor and upon the guardian of the minor in terms of O. 32, R. 3(4) of the Code, and if it also appeared that there was a distinct violation of the statutory provision contained in O. 32, R. 4(3) of the Code in so far as a guardian was assigned be a minor without the consent of the guardian. It was held by this Court that:
where, on the face of the record, a person qualified to act as the guardian appears as a guardian of the minor for the suit the Court has no power in another suit brought for the purpose of impeaching the validity of the decree to examine the evidence in order to see whether notices under O. 32, R. 3(4), were in fact served, or whether the person nominated as guardian did consent to act as guardian or whether the Court did expressly appoint such person as the guardian for the suit, unless it is shown that the defect in following the rules has affected the merits of the case.
22. This Court proceeded to say:
But where the record, on the face of it, shows that the minor was not represented by a guardian for the suit, or was represented by a guardian disqualified, under the express provision of the statute, from acting as guardian, the position is the same as if the minor were not a party to the suit, and the judgment rendered by the Court is without jurisdiction and null and void.
23. Now in this case so far as the plaintiffs other than Ganganand are concerned they do not ask the Court to hold that the consent decree is a nullity and therefore void against them. They contend, on the other hand, that it is voidable and that this Court should avoid it on the ground that there was a fraudulent conspiracy between the Maharaja and Kumar Kalikanand and that there was gross negligence on the part of their guardians ad litem. So far as Ganganand is concerned, the case cited completely supports his case, his case being that the record of the mortgage suit on the face of it shows that he was not represented by a guardian for the suit. I must overrule the argument advanced on behalf of the respondent on this point.
24. I now come to the question whether the plaintiffs are entitled to maintain the suit in so far as they seek to set aside the consent decree since they do not attack the final decree passed under O. 34, R. 5 of the Code. The point was not taken in the written statement; but was allowed to be argued before him by the learned Sub-ordinate Judge. A serious question of fact at once arises, namely whether Ganganand was a party to the proceedings under O. 34, R. 5 of the Code; and I have very grave doubt whether the learned Sub-ordinate Judge should have permitted any argument on a point which involved an examination of facts. It is contended before me on behalf of Ganganand that he was not a party to the proceedings under O. 34, R. 5 of the Code, that is to say proceeding initiated by the Maharaja for obtaining the final mortgage decree. (The judgment then examined the evidence and proceeded.) There is certainly nothing in the record to show that Ganganand was a party to those proceedings. It is difficult to understand why it should be necessary for Ganganand to ask the Court to set aside a decree which was not passed against him either in his presence or ex parte. Had the question been raised in the written statement, it would have been open to the plaintiffs to ask the Court to amend the plaint by adding a prayer specifically directed against the final decree. The question is one of form rather than of substance; for it is not open to doubt that if the preliminary decree fails the final decree must of necessity fail; and for my own part, I would unhesitatingly have passed an order for the amendment of the plaint if I thought that there was anything in the point.
25. There is a more serious answer to the argument. It is well established that a final decree under O. 34, R. 5 is only necessary where there is a preliminary decree in existence under O. 34, R. 4 of the Code. Now in my opinion the consent decree in this case is neither in form nor in substance a decree under O. 34, R. 4 of the Code. The consent decree of the 17th December 1918 recites the following facts: (1) Rs. 6,94,044-1-6 was due to the Maharaja at the date of the institution of the suit (2) adding interest at the bond rate on Rs. 6,94,044-1-6 the sum due to the Maharaja on the 17th December 1918, that is to say, the date of the consent decree, came to Rs. 8,42,131-2-3. The Maharaja gave up a lac of rupees and obtained a decree for Rs. 7,42,131-2-3 with interest thereon at 6 per cent per annum. The Maharaja gave a year to the defendants to pay up the amount and it was agreed that in default of such payment the mortgaged property should be sold. Now it will be noticed that there is neither a direction as to accounts being taken between the-parties nor a declaration as to what sum would be due to the Maharaja at the date fixed for payment. Now, in my opinion an order as to an account between the parties as to what would be due to the mortgagee for principal and interest on the mortgage, and for his costs of the suit (if any) on the date fixed for payment or a declaration as to the amount so due constitutes the essence of a preliminary decree under O. 34, R. 4 of the Code. In this case the Court declared the amount due to the Maharaja at the date of the consent decree. It did not take the accounts itself or direct an account to be taken to ascertain what would be the sum due to the Maharaja on the date fixed for payment. The decree in this case is a consent decree and it was the obvious intention of the parties that it should be put into execution on the failure of the mortgagors to satisfy the claim of the mortgagee within the time allowed without having to go through the formality of obtaining a final decree under O. 34, R. 5 of the Code. In my opinion the plaintiff was entitled to ignore the final decree even if he was aware of it, and to ask the Court to relieve him from the effect of the consent decree of the 17th December 1918. The question is one of utter technicality without any merit to support it and I must overrule the argument on this point.
26. I now come to the merits of the case between the parties; and I will first consider the case common to all the plaintiffs, namely the case of fraud and conspiracy between, the Maharaja and Kumar Kalikanand. The learned Sub-ordinate Judge has considered the evidence bearing on this point with very great care and I entirely agree with his conclusion upon it. It is in my opinion idle to suggest that Kalikanand entered into a conspiracy with the Maharaja to defeat the interests of the minors. The interests of Kalikanand are identical with those of the plaintiffs and it is difficult to understand why he should have entered into a fraudulent conspiracy with the Maharaja to defeat his own interest. A suggestion has been put forward in this Court that there was a secret bargain between the Maharaja and Kalikanand and that Kalikanand was out to make a profit for himself at the cost of the minors. There is some amount of evidence that there were negotiations between the Maharaja and Kalikanand for the purchase of some of the properties belonging to the joint family so that the entire debt due by the family to various creditors could be wiped off. I am satisfied on the evidence that there was no concluded agreement between the Maharaja and Kalikanand on this point and that, if the negotiations ripened into a contract, it would have benefited the minors as much as it would Kumar Kalikanand. It is unnecessary to pursue the point, for I am satisfied that the decision of the learned Sub-ordinate Judge on this point is right.
27. It was, however, contended that there was gross negligence on the part of the guardians ad litem and that the plaintiffs other than Ganganand are entitled to have the consent decree set aside on this ground. The argument is founded upon the alleged admissions of the guardians ad litem that they never applied their minds to the terms of settlement, but that they left the whole matter to Kalikanand. (The judgment then examined the evidence on the point of guardian's negligence and proceeded.) Now these are the facts established by the evidence of these two vakils practising in the Darbhanga Court. That they acted with entire lack of responsibility is not open to doubt, but Mr. C.C Das goes further and contends that, on the facts established by him, he is entitled to have the entire proceedings reopened with a view to show that the Maharaja is not entitled to a mortgage decree against his clients. Mr. Das contends that there is a fixed and unyielding rule of law to the effect that a minor is entitled to obtain the avoidance of proceedings undertaken on his behalf if he satisfies the Court that his guardian consented to a decree against him without applying his mind to the question whether the terms of settlement were for his benefit or not or myself, I have a strong objection to anything being put as high as an inflexible rule of law which has not the sanction of the legislature behind it. I strongly disapprove of the conduct of the guardians ad litem in this case-and I hope that there are not many cases where the guardians act with such lack of responsibility. But the rule for which Mr. Das'contends is a rule of prudence, not a rule of law. It is the duty of a guardian for the suit to be at least as vigilant in guarding the interest of the minor as he would be expected to be if his own interests were involved; and the Court will ordinarily relieve the minor from the effect of a consent decree and give him an opportunity to defend the suit if it is established that the guardian did no more than put his signature to a petition of compromise without considering for himself the question of benefit to the minor. But as I have said, the rule is one of prudence, not one of law. In this case it has been established that the whole matter was left to Kalikanand, the karta of the family, that Kalikanand had no interest adverse to those of the minors, and that Kalikanand considered that the settlement was for the benefit of the joint family. It is idle to suggest a case of conspiracy between the Maharaja and Kalikanand and it is ridiculous to suppose that Kalikanand was out to make a secret profit himself at the cost of the minors. The Court considered that the settlement was for the benefit of the minors and Kalikanand, whose interests were identical with those of the minors, put his signature on the petition of compromise. In my opinion the plaintiffs other than Ganganand are not entitled to avoid the consent decree on any of the grounds argued on their behalf by Mr. C.C Das.
28. I now come to the case of Ganganand which stands on a footing of its own. The learned Sub-ordinate Judge has found that he was a minor at the date of the consent decree, but that he is not entitled to any relief as there was a fraudulent misrepresentation on his part as to his age to the Maharaja which induced the Maharaja to enter into the settlement with him. The respondent does not accept the finding of the learned Sub-ordinate Judge on the question as to the age of Ganganand; and the first question which I have to determine is was Ganganand a minor at the date of the consent decree? Now, in coming to the conclusion that Ganganand was a minor at the date of the consent decree, the learned Sub-ordinate Judge has certainly relied on some evidence which was inadmissible as against the Maharaja. For instance, the learned Sub-ordinate Judge has relied on various letters withen by Kalikanand to Mr. Weatherall, who was the manager of the Srinagar Raj at one time containing statements as to the date of birth to Ganganand. But the statements of Kalikanand are inadmissible in evidence as he is alive and did not choose to come to the witness box. The petition of Kalikanand, dated the 1st of May 1910, applying to be appointed the guardian of the person of Ganganand, must also be rejected on the same ground. The order passed by the learned District Judge, on the 9th July 1910, appointing Kalikanand to be the guardian of the person of Ganganand, and stating therein that Ganganand was born on the 24th September 1898, must also be rejected as furnishing any proof of the age of Ganganand; but it is certainly evidence of the fact that an assertion was made so far back as the 9th July 1910 that Ganganand was born on the 24th September 1898.
29. But even rejecting these inadmissible documents, there is still overwhelming evidence in support of the learned Sub-ordinate Judge's finding that Ganganand was born on the 24th September 1898. In the first place, the horoscope of Ganganand is very strong evidence in his favour. It was contended that the horoscope is not admissible in evidence. Now the evidence is that it was prepared by Parmeshwari Dutt Misser, who was the astrologer in the service of the Srinagar Raj for nearly 40 years. Parmeshwari Dutt Misser is now dead, but his son Kantir Misser was called on behalf of the plaintiffs. He proved the handwriting of his father, and actually produced the horoscopes as, according to his evidence, these horoscopes are kept with the astrologer. The statement in the horoscope is the statement of Parmeshwari Dutt Misser, who is now dead and who had special means of knowledge as to the date of the birth of Ganganand. In my opinion these horoscopes are admissible and are valuable evidence in support of the case of the plaintiffs. I may say that there are two horoscopes, a janam kundali prepared as soon as Ganganand was born and a janam patrika prepared afterwards. (The judgment further discussed the evidence; and, finding that Ganganand was born in September 1898, proceeded.) Now the important question arises whether Ganganand is entitled to any relief in this case. It is not open to doubt that a consent decree does not stand on a higher footing than a contract between the parties, and that the Court has jurisdiction to set aside a consent decree upon any ground which would invalidate an agreement between the parties. The Indian Contract Act makes it essential that all contracting parties should be competent to contract and expressly provides that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of this Act. It follows, therefore, that the contract between Ganganand and the Maharaja, as contained in the petition of compromise, is entirely void and cannot be given effect to in a Court of law.
30. This is not disputed by Mr. Sultan Ahmad; but he contends that in this matter Ganganand was guilty of a fraudulent misrepresentation to the Court as a result of which the Maharaja entered into the compromise decree with him and he contends that the principle invariably acted upon by the Courts of equity is that an infant shall not take advantage of his own wrong. But what is Ganganand taking advantage of Ganganand is merely asking to be put in the position which he occupied before the consent decree was passed, so that he may be in a position to contend that the Maharaja is not entitled to a mortgage decree against him. It is not a case where Ganganand obtained property by means of fraudulent misrepresentation as to his age compelling a Court of equity to interfere to prevent the fraud of the infant from working injustice. As I understand the position, no injustice has been done to the Maharaja. He instituted a suit to enforce his mortgage. It is true he has obtained a consent decree by which he has given up a lac of rupees and the costs of his suit; but if Ganganand succeeds in this suit, the Maharaja's suit will be restored, and if his claim be well founded, he will be entitled to a full decree against all the defendants. The legal doctrine that an infant cannot make a contract was carried to the extent that he was not bound at law even if he induced the other party to enter into the contract by a fraudulent representation that he was of age. In equity, however, the view has always been taken that if an infant be old enough to commit a fraud by inducing others to think that he is of age, he cannot take advantage of it, and, if the Court cannot restore the parties to their original footing, the infant will be bound as if he were an adult. But in this case the lac of rupees, which the Maharaja has given up, has not gone into the pocket of any of the defendants to the mortgage suit, and the Court is in a position to restore the parties to their original footing in all respects.
31. In my opinion this is not a case like those upon which Mr. Sultan Ahmad relied, where an infant obtained an advantage by fanty stating himself to be of full age and equity required him to restore his illgotten gains or to release the party deceived from obligations or acts in law induced by the fraud. Whether the cases upon which Mr. Sultan Ahmad relied have any application since the decision of the Court of appeal in R. Leslie, Limited v. Sheill(3), approved as it was by the Privy Council in Mahomed Syedol Ariffin v. Yeon Ooi Gark(4), it is not necessary for me to discuss; for I am satisfied that this is not a case which would attract the operation of the equitable principles upon which Mr. Sultan Ahmad relied.
32. For, in my opinion, there is no evidence of any fraudulent misrepresentation in this case. Now, in the first place, there is no plea of fraudulent misrepresentation in the written statement filed on behalf of the Maharaja. In the second place, the representation must, in order to create the liability, be an express representation, and will not be constituted by mere inferences suggested by, or drawn from, the infant's conduct. It is a question of some difficulty to determine what constitutes a fraudulent misrepresentation by an infant; but it is well established that, allowing another person to deal with him as if he were an adult or doing acts which only an adult can properly do is not sufficient: Stikeman v. Dawson(5), Exparte Jones(6). It is not pretended that in this case there was any declaration by Ganganand that he was of age; but it is said that there were various acts by Ganganand which lead to the inference that he held himself out to the Maharaja as an adult and thereby induced him to enter into the compromise with Ganganand; and it is contended that those acts by themselves bring Ganganand within the ambit of the rule of equity upon which Mr. Sultan Ahmad relied.
33. Now, what are these acts? It will be remembered that the learned Sub-ordinate Judge in session of the mortgage suit passed an order on the 11th December 1916, directing that Ganganand should defend the suit as an adult. A week later he directed that Ganganand should be served with summons. It is alleged that Ganganand was served with summons on the 4th July 1917. The first act relied upon is that, notwithstanding the fact that he was served with summons he not only did not at once indicate to the Court that he was a minor, but actually gave a vakalatnama, on the 7th July 1917, authorizing Harnandan Das and Kaliprasad Jha to appear in the suit on his behalf. The other acts relied upon are as follows: On the 24th July 1917 Ganganand is alleged to have filed a written statement in the mortgage suit on the footing that he was an adult; and, on the 14th December 1918, he is alleged to have executed a special vakalatnama in favour of Bamanandan Misser and, Kaliprasad Jha, authorizing them to sign the petition of compromise on his behalf. The defendant Maharaja contends that each and every one of these acts constituted a representation on the part of Ganganand that he was of age and that, as he must have known that he had not attained his majority, such representations must be considered to be fraudulent misrepresentations within the meaning of the cases upon which Mr. Sultan Ahmed relied. Ganganand disputes the fact that he was ever served with summons and denies that he executed either of the vakalatnamas or signed the written statement alleged to have been filed on his behalf. The learned Sub-ordinate Judge considered the matter and found in favour of the Maharaja. On the question whether Ganganand was served with summons, I have no doubt that the conclusions at which the learned Sub-ordinate Judge arrived is right. On the question whether he executed the vakalatnamas and signed the written statement, I have some doubt whether the finding of the learned Sub-ordinate Judge is correct; but on a prolonged consideration of the matter I have come to the conclusion that I ought not to differ from the learned Sub-ordinate Judge on a question of this nature. But all these acts, taken individually and collectively, did not amount to a representation that he was of age. There was certainly no express representation in any of them. But it was argued that if a person, who is a minor, simply executes a vakalatnama and files a written statement, without making any express representation that he is of age, that of itself amounts to a fraudulent representation that he is of age. The answer is in the words of Jesse, M.R “You must not invent fraud in that way”: Ex-parte Jones. In that case, the infant had himself filed a liquidation petition which he could only do if he was of age. The liquidation proceedings had dropped, and a bankruptcy petition was afterwards presented by a creditor founded on the act of bankruptcy committed by the filing of the liquidation petition. Now the filing of the written statement stands exactly on the same footing as the filing of the liquidation petition. With reference to the argument then advanced, Lush, L.J, said as follows:
How the filing of the liquidation petition could in any way alter the infant's status of infancy I am utterly unable to conceive, and, in my opinion, he might have raised the objection of infancy at any stage of the proceedings. The filing of the petition had no effect on his status. An infant cannot by any false pleading, or by any mistake in pleading, alter his status; his immunity remains notwithstanding.
34. If his immunity remains, notwithstanding he has filed a pleading in the case which he could only do if he was of age, is that immunity at an end because, apart from filing the written statement, he executed two vakalatnamas by which he authorized certain pleaders to appear for him and represent his interest? I think not, and I must respectfully adopt the view of Lush, L.J, that, according to the decisions the representation must, in order to create the liability, be an express representation: Ex-parte Jones, In re Jones.
35. But, in truth, the difficulty of the Maharaja does not end here. Assuming that there was a misrepresentation by Ganganand as to his age, the question still remains: Was there a fraudulent misrepresentation by him? Now it is not open to doubt that there may be a false representation which is not fraudulent; for untruth does not of itself import a dishonest mind. In Derry v. Peek(7) Lord Herschell, after reviewing the authorities on the question, deduced the following results:
Fraud is proved when it is shown that a false representation has been made: (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.
36. Lord Hersehell proceeded to say as follows:
Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent there must, I think, always be an honest belief in its truth and this probably covers the whole ground; for one who knowingly alleges that which is false, has obviously no such honest belief.
37. It will appear then that proof of this absence of the actual and honest belief is necessary, but on the other hand, is sufficient, to satisfy the requirements of the law.
38. The question then is: Has the Maharaja established that there was an absence of honest belief in the truth of the representation which I am assuming Ganganand made, that he was of age when he executed the vakalatnamas in question and signed the written statement in the mortgage suit? (Then, after discussing the evidence, the judgment proceeded). I am of opinion that fraud has not been established and the plaintiff Ganganand is entitled to a declaration that the consent decree obtained against him is a nullity and that the defendant should be restrained by an injunction of the Court from executing the consent decree against him.
39. It only remains to consider the plea of estoppel. I have very grave doubt whether Section 115 of the Evidence Act applies to infants. In Dhurmo Das Ghose v. Brdhmo Dutt(8). Mr. Justice Jenkins (as be then was) examined all the cases bearing on the point and came to the conclusion that, in order to support the plea of estoppel in the case of infants, fraud, operating to deceive must be found as a fact. The case went up to the Privy Council, and although the Privy Council decided the case on the ground that the section did not apply in the particular cease before them, as the statement relied upon was made to a person who knew the real facts and was not misled by the untrue statements, there is nothing in the judgment of their Lordships to indicate that they did not agree with the view expressed by Mr. Justice Jenkins. The rule of estoppel is a rule of evidence and it must be taken subject to the Indian Contract Act. Even if I am wrong in this view there is in my opinion no case of estoppel to be tried. I can find no evidence of the fact that Ganganand intentionally caused or permitted the Maharaja to believe a thing to be true which was in fact untrue. There is no declaration that he was an adult when in fact he was a minor, and there was no unequivocal act on his part to that effect. I must overrule the plea of the defendant on this point.
40. The result is that I must allow the appeal of Ganganand, set aside the decree passed by the Court below and give Ganganand a decree declaring that the compromise decree passed by the learned Sub-ordinate Judge in Suit No. 172 of 1916 is void as against him. I must also issue a permanent injunction restraining Defendant No. 1 from executing the decree against the interest of Ganganand in any of the properties. It is obvious that the entire consent decree must go, as Ganganand has no interest in it capable of being separated from the interest of the other members of the family. The learned Sub-ordinate Judge will now restore the suit and proceed with it in accordance with law. As the mortgage suit was instituted so far back as the 28th April 1916 it is obvious that there must be no further delay in trying the suit. We think that the learned Sub-ordinate Judge should not give the parties more than two months time to be ready with their evidence, and he should then proceed with the hearing of the suit. In the circumstances I make no order for costs either in this Court or in the Court below.
Adami, J.:— I agree.
41. Decree set aside.