The Judgment of the Court was as follows:—

Rankin, C.J:— The Appellant Shaik Abdul Karim was Defendant in a suit brought by the Plaintiff Thakurdas Thakur to set aside a sale of certain property held in execution of a decree, dated the 6th of June 1922, passed by the Small Cause Court. The Plaintiff in the Small Cause Court suit was the Respondent Haji Meah Mahomed and he brought his suit against Sudhamoyee Dasi—mother of Thakurdas Thakur who was at that time a minor and against the minor himself. The suit was brought for the recovery of the balance of some Rs. 2,000 which was the subject-matter of a document, dated the 23rd of January 1919.

It appears that the father of the minor was one Ram Lal who died in 1903. He left a son Kanai by a wife who had predeceased him, and Thakurdas Thakur was not at that time born, Sudhamoyee, however, after his death gave birth to a posthumous son and under the Will of Ram Lal his property went to his two sons. A partition suit was brought in 1910 and as a result of that certain premises now in question— No. 3/1, Marcus Square were allotted to the Plaintiff. This process was complete in the year 1911. In these circumstances, the mother Sudhamoyee being apparently in need of money obtained advances from Haji Meah Mahomed in 1918 and early in 1919. Apparently the first advance was of Rs. 300, the second was of Rs. 100 and at the time of the document of the 23rd of January 1919 a further sum of Rs. 1,600 was advanced.

Now, the document in question which was registered is in the form of a receipt and it is signed by Sudhamoyee without any further description than that she was the widow of Ram Lal. The receipt purports to be a receipt for Rs. 2,000 on the term that the sum would be paid by deduction of Rs. 20 each month out of the rent payable by Haji Meah Mahomed for No. 3, Marcus Square the rent of which would not be enhanced until re-payment of the full sum. It provided: “If before payment of the said amount received Government acquire the land Haji Meah Mahomed will be entitled to be paid his money in the first instance from the compensation to be paid”. These are two characters which Sudhamoyee might be thought to be exercising in granting this receipt. She was the executrix of her husband's Will and she was the natural guardian of Thakurdas. She did not at this time obtain any order from the District Court under the Guardians and Wards Act making her a certificated guardian. Sometime after this transactiori, namely, on the 14th of September 1919 Sudhamoyee applied in the Original Side of this Court and obtained an order appointing her guardian of the person and property of Thakurdas and by that order obtained authority to execute a new lease of the premises to certain other lessees. A lease was sanctioned and a certain amount of money was obtained thereby. At the time of obtaining the sanction of this lease no information was given to the Court about the transaction previously made with Haji Meah Mahomed. As a result of the second transaction it appears that the new lessee brought a suit against Haji Meah Mahomed for ejectment. The actual documents showing the result of that suit are not in evidence but there is certain evidence on the record from which it would appear that suit was compromised, Haji Mea Mahomed going out of possession of the premises on receipt of Rs. 800. I should rather gather that in consideration of his vacating the premises he got a promise of Rs. 800 which afterwards he brought a suit upon.

In this position Haji Meah Mahomed commenced the suit in the Small Cause Court with which we are now concerned. The plaint in that suit is before us and it appears that the cause title of that suit describes the Defendants thus: “Sudhamoyee Debi, widow of late Ram Lal Thakur and Thakurdas Thakur a minor by his mother and certificated guardian the said first Defendant.” I observe that this plaint is signed by a pleader. How any pleader should be so ignorant as to suppose that this is the proper way to bring a suit against a minor and how any Court can conduct its business if with a plain notice that no guardian at litem has been appointed it issues summonses upon people for no better reason than that their names are put in the cause title in this way I do not profess to know. I would rather suppose that it is advisable that the authorities should take some steps either to make sure that pleaders of a less degree of ignorance are entrusted with the necessary work or that at all events they have more difficulty in getting processes of the Court issued without any proper scrutiny. However incredible it may appear, the Plaintiff's pleader having put down the Defendants' names in-this way, the case seems to have gone on just as if it was a suit between persons who were sui juris. The Plaintiff's cause of action was thus described. He averred that on the 23rd of January 1919 he was a tenant of a piece of land, that land belonged to the minor and that he was a tenant under arrangement with the first Defendant as mother and natural and certificated guardian of the minor. Then he set out that the Defendants meaning the mother and the minor took from him a sum of Rs. 2,000 as an advance without interest towards the rent of the said piece of land agreeing to repay the same at Rs. 20 per month from the monthly rent on the understanding not to eject him so long as the entire amount was not liquidated. Then he said that the Defendants on the 1st of October leased out the land to a third party who had ejected him. Accordingly the Plaintiff claims that he has to receive from the Defendants a sum of Rs. 1,880 still due as balance of the said advance which the Defendants having broken the said arrangement are liable to refund. He claims a decree against the first Defendant, that is to say, the mother personally and against the estate of the minor.

Now, that plaint having been filed on the 31st of March 1922, the summonses were served. On the 20th of April a certain pleader, Mr. Ghose, entered appearance and asked for two weeks' time to file power and a detailed written statement. It seems that at the time he went before the Court the minor Thakurdas was with him: but there does not seem to be any reason to suppose that what he did then was in any way out of order. At all events, the Court gave him time. Thereafter nothing seems to have happened except that the pleader saw the minor from time to time more than once. He appears to have gone to the house when the Defendants were living but he did not succeed in having any conversation with the mother. The minor told on behalf of his mother that the claim was true, that they had had the money and that they really could not dispute the debt. In giving these instructions through her son to the pleader I do not suppose for one moment and there is no evidence to suggest it that the lady was actuated by anything worse than honesty and common sense. I do not think it is reasonable to impute to her that she was trying to get an improper decree which should have been passed against herself passed against the minor's estate in order that her own interest might be safe-guarded at the expense of the boy. As a matter of fact, any, careful computation of her own interest would probably have shown her that she as much as the boy was interested in resisting, if possible, a decree against the minor's property and relegating the Plaintiff, if possible, to a mere personal decree against herself. However, that being the view that was taken it appears that on the 9th of May another adjournment was given. On the 6th of June 1922 the Plaintiff with his pleader was present and there was no appearanee for the Defendants. Accordingly, after taking the evidence of the Plaintiff's gomostha the learned Chief Judge decreed the suit ex parte against both the Defendants. The amount of the decree was also to be levied out of the estate of the minor in the hands of the lady. Thereafter the decree was transferred to the Original Side and the property which appears to have been subject to more than one mortgage was sold subject to these mortgages and a sum of Rs. 500 was obtained towards satisfaction of Haji Meah Mahomed's decree. The purchaser at that sale was the present Appellant. Upon that the present suit was brought by Thakurdas Thakur who had attained majority on the 16th of May 1924. He brought this suit in March 1925 to set aside that sale altogether and for a declaration that the Small Cause Court's decree was null and void and inoperative against him.

The learned Judge has decreed his suit. He has treated the decree as a nullity and set aside the sale. He has proceeded mainly upon the ground that the mother's interest in the Small Cause Court suit was adverse to the minor. We have to decide whether the learned Judge was right.

With reference to the document of the 23rd of January 1919 the mother, as I have already mentioned, might be regarded as executrix of the father, or as natural guardian of her son. Mr. S.N Bannerjee for the Respondent has contended that as this transaction was some sixteen years after the testator's death and many years after the partition of 1911 it was entered into when the estate of the testator was really in the hands of the beneficiaries and the lady had not at that time the character of an executrix. He says further that if one looks at the document one finds nothing in that to constitute a claim on lever behalf to be the executor. He contends further that if she be regarded as an executor then the transaction is simply this that she has borrowed certain money for the benefit of her trust and that she alone is liable in law on any promise to repay that money. It may of course be the duty and the power of an executor to pledge or sell the assets in order to obtain the money, but it is not contended that there is in this document any security to Haji Meah Mahomed which in the present circumstances can be enforced. Therefore he says—and he quotes authority for the proposition—that the claim, if the lady be regarded as executrix, was a claim against herself and that there was no claim against the minor or against his estate. The line of cases upon which he relies contains such well-known cases as Farhall v. Farhall . The whole law on the subject may be found summarised in Leake on Contracts at page 1265. If, again, the lady be looked at as the natural guardian of the minor's property then it may be that being free from the restrictions imposed by the Guardians and Wards Act she would have power to mortgage the property in a proper course of administration or for necessity. But again it does not appear that there is any such mortgage or sale of the minor's property entered into by this document. He contends that if the Plaintiff has to recover cover on contract the only Defendant against whom he can shape a case of that sort would be the mother herself.

Sir Benode Mitter, on the contrary, has contended that, while he does not dispute the doctrine of Farhall v. Farhall that if you find that ah executor or a guardian is managing a property on behalf of a minor than those acts if properly done well bind his beneficial interest and he says that this instrument of the 23rd of January 1919 should be looked at really as a lease by the mother of the property belonging to the son. It is a lease on the term that certain rents should be paid in advance; and therefore when the lender sues to recover his advance he is entitled to have recourse not merely to the lady herself but also to the son's estate. For the present purpose it is not actually necessary that this Court should decide that question but I have no doubt that it is a serious question and that to this suit the minor had a defence of a very substantial character. I doubt exceedingly whether on that document or on any facts that have been brought out in this case there was any cause of action against the minor. However, for the present purpose, it is not necessary to do more than to say that it is not a case to which no reasonable defence applies. I entirely agree with Sir Benode Mitter when he says that in a case of this sort it is no use paying any attention to any purely imaginary defence. One has to find out as best as he can whether there was any really substantial defence with a real prospect of success. In my judgment, the present case is one in which there was such a defence. That being so, what has happened in this case? It is quite true that on the face of the plaint the Plaintiff was claiming that the mother should represent the infant. It is quite true that the vakeel who acted in the matter was acting on behalf of both. Whether he did or did not have a properly executed power has in the circumstances of this case no importance. What happened was that he got a fortnight's time to put in a defence. There was a further adjournment and no appearance and the Court decreed the suit in such a way as to show that it was present to the minor of the Court that it was dealing with the estate of an infant as well as with the liability of Sudhamoyee Dasi.

The first question, therefore, which arises is, putting aside for the moment the question of adverse interest, whether this case is within the doctrine of the well-known case of Walian v. Banke Behary decided by the Privy Council. In my opinion, this case is very far indeed from Walian's case apart altogether from any question of adverse interest. In that case there had been a suit. There had been various appearances by the mother as in the character of guardian of the infants. It is true that on the day of hearing no appearance was made and that actually at the trial no fight was put up on the infant's behalf. The Privy Council in dealing with the matter was of opinion that the infants were effectively represented in that suit by their mother and with the sanction of the Court. “There is nothing to suggest” say their Lordships “that their interests were not duly protected. The only defects which can be pointed out are that no formal order appointing the mother of the now Plaintiffs to be their guardian ad litem is shown to have been drawn up: and that it is not definitely shown that any attempt was made to serve the summons in the former suit upon the infants personally, or upon their mother, a purdanashin lady, before serving it upon Gajadhar, the any adult male member and the karta of the family. It has not been shown that the alleged irregularities caused any prejudice to the present Plaintiffs: nor indeed could there well be any, since it has been found that the original debt was one for which the present Plaintiffs were liable.” Now the present case is not a case in which I am prepared to say that there is nothing to suggest that the interest of Thakurdas was not duly protected. It is not a case in which I am now satisfied that the claim against Thakurdas was a claim, to which there was no answer. It is one thing, when all that is wrong with the proceeding is that a formal order which should have been recorded has not been recorded to give validity to the proceeding. It is another thing altogether when you have a case in which there appears to have been a substantial defence and that defence was never raised at all. In my judgment, were we to hold in this case that the rule in Walian v. Banke Behary covered a case of this sort we would be opening the door to fraud and malpractice and opening it very wide.

The next question which arises is the question whether or not the mother was a person disqualified from being a guardian by reason of adverse interest. The learned Judge on the Original Side has treated this matter as too obvious for argument and has said that the contrary was not really contended before him. He says: “It was to the mother's interest to saddle on to the son's estate what was prima facie upon the face of the document a personal liability of her own.” Sir Benode Mitter has very properly pointed out that while in a sense it is true that if no judgment went against the son's estate she would remain solely liable upon a decree against herself, nevertheless if you look at the realities of the position as disclosed at all events by the lady's petition to this Court for appointment as certificated guardian you will find that the son's property was the only source of maintenance and support belonging to either of them. Accordingly Sir Benode points out with great force that if this lady's interests are to determine the matter, a calculation of her interest would probably show that the best thing in the would for her would be to defeat the Small Cause Court suit as against Thakurdas and allow it to end merely in a personal judgment against herself which could not be executed against her personally and to pay which she had no assets. It would, he points out, have done her very little harm to have a judgment against herself. Had this case arisen for decision upon this question I would have had some difficulty in holding upon such grounds that there was not an adverse interest. Prima facie the interest was adverse and prima facie it is to the interest of a person even if he has no assets either to escape a personal judgment or to get some one also to share with him the burden of the money to be paid. It is in this case not necessary to proceed upon this ground and I would desire in particular to guard myself against holding that in any case where a guardian ad litem is appointed by a Court the person afterwards by showing adverse interest can get a right to treat the decree as a nullity. I doubt extremely whether the case of Rashid-un-nissa v. Ismail Khan (3) which is relied upon for that proposition really goes so far and I am not to be taken as subscribing to everything that is said in the case of Sellappa Goundan v. Masa Naiken (4). But it is clear enough that in a case like this where there was be appointment by the Court at all an adverse interest would introduce an element that would make it impossible to apply the doctrine in Walian's case . That proposition was not disputed and I believe that to be right.

On the whole it appears to me that the conclusion arrived at by the learned Judge is right and that this appeal should be dismissed with costs payable to the Plaintiff.

The cross-objections are dismissed without costs.

C.C Ghose, J.:— I agree.

Mr. C.C Ghose, Solicitor for the Appellants.

Babu Abhas Chandra Ghose, Solicitor for the Plaintiff-Appellant.

Mr. J.N Mitra, Solicitor for the Defendants-Respondents.

O.U.A