Mohammad Noor, J.This is an appeal against a decision of a Subordinate Judge of Shahabad giving the plaintiff respondents a decree for joint possession of one-third share in 142.03 acres of land situated in village Dharupur in the district of Shahabad and for mesne profits. The plaintiffs, who are wards of the Court, are proprietors of one-third share of village Dharupur. The defendants are the landlords of the remaining two-thirds being proprietors of one-third and mukarraridars of another one-third. The plaintiffs share was in the zarpeshgi lease of the defendants family for a period of 25 years which expired in 1306 fasli, but as the zarpeshgi money was not paid up the defendants continued in possession of the share. Thereafter under a deed, dated 6th June 1906, the plaintiffs share was given in usufructuary mortgage to the defendants for a period of 10 years from 1313 to 1322. The plaintiffs redeemed the mortgage by depositing the money in Court on 17th July 1926, and got possession of the village. Now the plaintiffs case is that in spite of the mortgage having been redeemed the defendants did not give the plaintiffs possession of their one-third share of the bakasht lands of the village described in Schedule A (164.79 acres or 254 bighas 18 dhurs) and Schedule A(1) (65.56 acres) of the plaint. They therefore sought recovery of joint possession of these lands and also a declaration that an ex parte decree obtained by the defendants against them in respect of Schedule A lands be declared collusive, fraudulent, illegal, null and void and not binding upon them. They further asked for a decree for Rs. 2,441-10-8 for damages alleged to have been caused by the defendants to the mortgaged property during the term of the usufructuary mortgage and also for a decree for Rs. 5,618-0-1 as mesne profits in respect of the lands in suit.

2. During the course of the settlement operations the defendants were found indirect possession of 164.79 acres of land) (mentioned in Schedule A of the plaint) which they claimed to be their raiyati lands with occupancy rights therein. The Settlement Officers however recorded these lands as "bakasht landlord mukarraridar and zarpeshgidar." It may be noted that the word "bakasht" malik or thicadar was used by the Settlement Officers to indicate lands in direct possession of the malik or tenure-holder which are not their zirait lands as defined in Section 120, Bengal Tenancy Act, (vide-Guide and Glossary to the Survey and Settlement Operations in the Patna and Bhagalpur Divisions, p. 14). The defendants thereupon instituted a title suit (No. 242 of 1912) against the plaintiffs for declaration of their occupancy rights in these lands. The suit was defended by the manager of the Court of Wards who was managing the plaintiffs estate, the plaintiffs being then the wards of the Court as they are even now. After the suit had remained pending for some time it was decreed ex parte on 3rd November 1913. There was an attempt by the plaintiffs through the same manager to have the ex parte decree set aside and a petition to that effect, was filed on 11th December 1913, which was dismissed for default on 17th January 1914. The plaintiffs have challenged this decree in their plaint alleging that it was obtained by fraud and collusion between the defendants (who were plaintiffs in that suit) and the then Manager of the Court of Wards, or that at any rate the suit was decreed ex parte on account of gross neglect of the manager. They have asked that this decree be declared null, void and inoperative.

3. The lands covered by Schedule A(1) of the plaint were during the settlement operations in possession of certain raiyats. The defendants claimed them also to be their raiyati lands with occupancy rights therein and alleged that the raiyats found in possession thereof were their temporary under-raiyats. The settlement officers disallowed the defendants claim and recorded the persons found in possession of these lands as raiyats. Later on the defendants obtained from these persons surrender of their rights in their favour and have been in direct possession of these lands since then. The plaintiffs case is that these were the lands of the raiyats which on account of their surrender or abandonment came in direct possession of the landlords and on the redemption of the mortgage of their one-third share of the village they are entitled to have their share in them. The defence was that the lands in suit were the raiyati lands of the defendants, and not the bakasht lands of the landlord and therefore the plaintiffs were not entitled to get any share in them. There was also a plea that the plaintiffs suit in respect of Schedule A lands was barred by res judicata in consequence of the ex-parte decree stated above. Limitation was also pleaded in defence of the suit.

4. The learned Subordinate Judge overruled the pleas of res judicata and limitation. He has found that there was no fraud or collusion between the defendants, who were plaintiffs in the former suit, and the manager but that there was a gross negligence on the part of the manager and therefore the decree was not res judicata. He gave the plaintiffs a modified decree for joint possession in respect of 103.01 acres out of the lands mentioned in Schedule A and 39.02 acres out of the lands mentioned in Schedule A(1) of the plaint. He has held that the defendants were not able to prove their raiyati rights in respect of these lands. He dismissed the suit in respect of the remaining lands of Schedules A and A (1), having found that the defendants were raiyats in respect of these lands from before they became landlords of the village. He also dismissed the suit in respect of compensation and damages but gave a decree for mesne profits, and ordered the parties to bear their own costs. The defendants have preferred this appeal, while the plaintiffs have preferred cross-objections in respect of the area for which their suit was dismissed and also against the dismissal of their claim for damages and compensation. The plaintiff-respondents have not pressed before us their case of fraud and collusion between the defendants and the then manager of their estate in connexion with the ex parte decree.

5. Before I come to deal with the points taken in appeal I would like to state some facts which are not disputed. The defendants are not the old landlords of the village. Their first connexion with the village as such commenced in the year 1287 (1880) when their family along with one Nakchhedi Pathak took a zarpeshgi lease of the village. Thereafter they became proprietors of one-third of the village under two deeds of sale, dated 17th September 1892, and 1st December 1892, and later on, they acquired mukarrari of the other one-third of the village under a deed, dated 27th February 1894. They however continued in possession of the entire village partly as proprietors (one-third), partly as mukarraidars (one-third), and partly as mortgagees (one-third), up to the year 1926, when as stated above the one-third share of the plaintiffs was redeemed from their usufructuary mortgage. On behalf of the appellants the following points were urged before us:

(1) That the learned Subordinate Judge ought to have held on the evidence on record that the defendants were able to establish their raiyati rights in respect of not only the lands for which the plaintiffs suit was dismissed but also in respect of the remaining lands for which the suit was decreed.

(2) That the plaintiffs were not entitled to a decree for joint possession. The defendants being cosharer landlords, their interest in the village being two-thirds, they are entitled to remain in possession of the lands till the village is partitioned. The only decree which could be passed was a declaration of the plaintiffs title to the extent of one-third share in respect of such lands which were not found to be the raiyati lands of the defendants.

(3) That the learned Subordinate Judge has erred in passing a decree for mesne profits. The plaintiffs were only entitled for compensation for use and occupation by the defendants of the one-third share in the land.

(4) That so far as the lands covered by Schedule A are concerned, the plaintiffs suit was barred by res judicata. There was no negligence on the part of the manager and even if there was any, the plaintiffs were not entitled to get rid of the decree on that ground. It was also urged in the alternative that assuming that there was gross negligence on the part of the manager of the plaintiffs estate which resulted in the ex-parte decree, the decree was not void but voidable and the plaintiffs could not succeed unless they got the decree set aside and their prayer for declaration that the decree was null and void was barred by limitation.

6. The respondents supported the decree of the learned Subordinate Judge so far as it is in their favour, and further contended that on the evidence on record he ought to have decreed the plaintiffs suit in its entirety, holding that the defendants failed to establish their raiyati rights in respect of any portion of the land in suit. They have also asked for a decree for damages and compensation. (1) I first take up the question of fact, namely, whether the defendants were able to establish their raiyati rights in respect of the lands covered, by Schedules A and A (1) of the plaint, and if so, to what extent. (His Lordship after discussing the evidence came to the conclusion that the defendants were raiyats, and held that the decree of the Subordinate Judge so far as it dismissed the plaintiffs suit in respect of those lands of Schedules A and A (1), which were identified with the lands found in possession of the defendants family in the year 1871, was perfectly correct. His Lordship after further discussing the evidence, continued the judgment.) About the remaining lands, the defendants case has been that they got them by purchase. This they have not been able to prove, and in respect of them the plaintiffs are entitled to a decree on facts, subject to the question of res judicata in respect of the lands of Schedule A which I shall take later on.

7. (2) and (3). The next two points urged are that the defendants, being co sharer landlords of the village, were entitled to cultivate the joint lands subject to payment of compensation to the plaintiffs. Therefore for the lands of Schedule A or A(1), in which the plaintiffs may be held to have a share and in which the defendants failed to establish their occupancy rights, the plaintiffs were not entitled to a decree for joint possession or for mesne profits. The plaintiffs were only entitled to a declaration of their share in those lands and for compensation from the defendants on account of the lands being in their exclusive use.

8. Mr. Sushil Madhab Mullick relied upon two decisions of the Judicial Committee, i.e., Watson & Co. v. Ramchund Dutt (1891) 18 Cal 10 and The Midnapur Zamindari Co. v. Naresh Narayan Roy 1924 PC 144. In the former case the land was held by two persons in common, one of whom was in actual occupation of a part, cultivating it as if it had been his separate property. The other attempted to enter upon the same land in order to carry on operations thereon inconsistent with the work already being carried on by the former, who resisted and prevented this attempted entry. Their Lordships held that:

The resistance being made by the cosharer in occupation simply with the object of protecting himself in the profitable use of the land, in good husbandry, and not in denial of the others title, such resistance was no ground for proceedings on the part of the other to obtain a decree for joint possession, or for damages; nor would granting an injunction be the proper remedy.

9. In the latter case, it was held that:

Where lands in India were held in common, each co-sharer was entitled subject to paying compensation to the other co-sharers to cultivate any part of them not being cultivated by the other co-sharers. The other co-sharers are not thereby ousted so as to be entitled to mesne profits; their remedy if they object is to obtain a partition with compensation.

10. In my opinion, the facts of these cases were quite different. The right of the co-sharers was not denied nor was the fact that one co-sharer was cultivating the land a denial of the others right. In the present case the possession by the defendants of those lands, which have not been proved to be their raiyati lands, was in the assertion of a right as a raiyat and was consequently adverse to the plaintiffs. The plaintiffs were therefore bound to sue for joint possession; otherwise, if such a suit was not brought within time, their right would have become barred by limitation. In the circumstances of the case, the decree of the learned Subordinate Judge is correct, and the plaintiffs are entitled, on the establishment of their title to a one-third share of the lands, to a decree for joint possession with the defendants; and for the same reason I hold that the decree for mesne profits has also been rightly passed. (4) The most important point raised is whether the suit in respect of lands of Schedule A is barred by res judicata in consequence of the ex parte decree passed on 3rd November 1913. This decree was challenged by the plaintiffs on the ground that it was obtained by fraud and collusion between the defendants and the officers of the Court of Wards or at any rate, was inoperative as it was passed on account of the gross negligence of the manager of the Court of Wards. The learned Subordinate Judge has found that there was no fraud or collusion, and that finding has not been assailed before us. As a matter of fact, there is no evidence to show that the defendants were guilty of any fraudulent act in obtaining that decree, or that there was any collusion between them and any officer of the Court of Wards. In the plaint itself, except a vague allegation of fraud no details were given. Whether gross neglect of a guardian amounts to fraud is a different question, and I shall consider it later.

11. The learned Subordinate Judge has, however, found that there was gross negligence on the part of the officers of the Court of Wards and that therefore the decree was not res judicata. This finding has been challenged before us by the appellants. First of all, it is urged that there was no gross negligence. Secondly, that a ward of the Court is not on the same footing as a minor and cannot get rid of a decree on the ground of the negligence of the officers of the Court in conducting or defending a suit. Thirdly, that the decree is at any rate not a nullity and is effective unless set aside by review or by suit, and that the prayer for setting it aside is barred by limitation. The considerations which arise are these: was there any gross negligence on the part of the officers of the Court of Wards which led to the passing of the ex parte decree What is the effect of the gross negligence if there was any Can the decree be challenged collaterally, or has it to be set aside before the plaintiffs can get any relief, and whether the prayer for setting it aside is barred by limitation I take these points in the order in which I stated them. It appears from the order-sheet of the suit (Ex.10) that it was instituted on 13th August 1912. The written statement on behalf of the defendants was filed on 14th December 1912. The steps taken on their behalf were all dilatory. On 15th September 1913 the defendants applied for warrants of arrest against their witnesses which were ordered to be issued on payment of process fee and filing of forms, and 3rd November 1913 was fixed for hearing. Warrants were not issued on account of the defendants failure to file forms.

12. The application praying for an adjournment of the case filed on 3rd November 1913 was disallowed. Later on, the pleader, who was appearing on behalf of the defendants, informed the Court that he had no further instructions beyond applying for time. The Court then proceeded to hear the case ex parte and decreed it on the same day. On 11th December 1913 an application to set aside the ex parte decree under Order 9, Rule 13, Civil P.C. was filed. Notices were issued, fixing 3rd January, 1914 for the hearing of the application. On that day the defendants applied for time and the case was adjourned to 17th January 1914, when the application was dismissed for non-appearance of the defendants. The facts above stated clearly show that there were great laches in looking after the case of the defendants and, in my opinion, the learned Subordinate Judge is right in holding that the suit was decided ex-parte on account of the gross negligence of the Officers of the Court of Wards.

13. Mr. Mullick on behalf of the appellants contended that the mere fact that the manager of the Court of Wards who was acting as a guardian ad litem of the defendants, allowed the suit to be decreed ex parte and then allowed the application for setting aside that decree to be dismissed for default did not amount to gross negligence. He relied upon the decision of Parmeshwari Pershad Narayan Singh v. Sheo Dutt Rai (1907) 6 Cri LJ 448 where it was held that it was not every kind of negligence nor any amount of negligence which would render proceedings, otherwise regular and proper, liable to be opened up; it must be such negligence as leads to the loss of a right, which, if the suit had been conducted or resisted with due care, must have been successfully asserted. He also relied upon the cases of Chunduru Punnayyah v. Rajam Viranna 1922 Mad 273 and Brij Raj v. Ram Sarup 1926 All 36, which lay down that simply an omission by the guardian to appear at the trial would not amount to gross negligence if there was no ground of defence to pat forward on behalf of the minors and further that the facts of each case have to be considered and the omission in one case may amount to gross negligence, while it will not in the other.

14. I shall have to refer to the Madras case later as it has also laid down that a suit lies to set aside a decree on the ground of gross negligence of the guardian of a minor. The learned Advocate further relied upon the case of Bepin Chandra Das v. Menajaddi 1927 Cal 865 where it was held that before a decree obtained against a minor can be set aside the fraud of the guardian must be proved. In my opinion, however, in the case before us the omission of the guardian to defend the suit amounted to gross negligence. Mr. Mullick contended that the plaintiffs of that suit, who are defendants in the present one, had filed the irrigation khesra and map and as the manager saw that there was no defence to make he allowed an ex-parte decree to be passed. I am unable to accept this contention. First of all, as I have shown above, the irrigation khesra and map do not show all the lands covered by Schedule A to be the raiyati holdings of the defendants. If there was no good defence to make in respect of the entire Schedule A, there was certainly good defence in respect of some lands covered by that schedule. The record of rights was in favour of the defendants of that suit. The lands were recorded as bakasht of the landlords and it was for the plaintiffs of that suit to establish their occupancy right in them. The only evidence apart from oral evidence available to them was the map and the khesra of the irrigation department and they, as I have shown, do not cover the entire schedule. Then again, if the manager thought that the suit was undefendable, there was no use of making a show of defence asking for warrants against the witnesses and then abandoning the suit to be decreed ex-parte, and thereafter to apply for setting aside the decree and allowing the application to be dismissed for default.

15. The next question for consideration is the effect of the ex parte decree in consequence of the gross negligence of the guardian of the ward. There is no doubt that a decree passed against minor can be avoided on the ground of gross negligence of the next friend or guardian ad litem. In Lalla Sheo Churn Lal v. Ramnandan Dobey (1895) 22 Cal 8 it was held that gross negligence on the part of the 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 Section 103, Civil P.C. (O. 9, Rule 9 of the present Code) to the institution of a fresh suit by such person when the disability has ceased. A Full Bench of the Allahabad High Court in Siraj Fatma v. Mahmud Ali 1932 All 293, held that the right of a minor to avoid a decree passed against him on the ground of negligence of his guardian ad litem is a substantive right, well recognized in the English law, and equally applicable in India as it is not founded upon any peculiarities of the English law but upon the broad principles of justice, equity and good conscience.

16. A suit for the enforcement of such a right of the minor either to ignore or to challenge the propriety of the order passed against him is undoubtedly one of a civil nature. The cases relied upon by Mr. Mulliek also hold that a minor can avoid a decree passed against him on account of the gross negligence of his guardian. The ex parte decree in the present case however is not against a minor but against a man who was of age but a disqualified proprietor whose estate was under the Court of Wards. The decree is against Ram Bibhuti, the father of the present plaintiff, and his three minor sons through the manager of the estate. The minor sons as named in the decree are (1) Kedar Nath, (2) Kamla Prasad. The name of the third was not given. The names of the two sons given do not correspond to the name of any one of the plaintiffs who are the sons of Ram Bhabhuti Prasad. No explanation of the discrepancy is available on the record. No objection seems to have been taken in the previous suit that Ram Bhabhuti Prasad had no sons named Kedar Nath and Kamla Prasad. The appellants explanation given to us is that the two names were pet names of the plaintiffs, Ram Rudra Prasad and Ram Ganeshadhis Prasad and defendant 3 of whom no name was given was the plaintiff Ram Akhandleshwar Prasad. The respondents do not accept this. I shall proceed on the assumption that the decree was against the plaintiffs father only, his sons being then minors. The decree if otherwise good is no doubt binding upon the plaintiffs. It was enough if Ram Bibhnti Prasad who alone was recorded in the Record of Rights was sued. He fully represented the estate: Lingangowda Dod Basangowda Patil v. Basangowda Bistangowda Patil 1927 PC 56 .

17. The question therefore arises whether the principle of the English law, which has been applied in India on the ground of justice, equity and good conscience to afford protection to infants can be extended to disqualified proprietors whose estates are managed by the Court of Wards. I see no reason to differentiate between the two cases. A ward of the Court is as much helpless as a minor; rather the former is in a worse position. In the case of a minor if one guardian is neglecting his duty, any other person interested in the minor can come forward and have the guardian removed. But in the case of a disqualified proprietor under the Court of Wards nobody else except the manager appointed by the Court can institute a suit on his behalf or defend one against him. Mr. Mullick has however contended that there is a difference between a minor and a ward of the Court. He relied upon the case of Mani Singh Mandhata v. Nawab Bahadur of Murshidabad 1918 PC 180, for the proposition that limitation begins to run against a man not with standing the fact that his estate was under the Court of Wards and he is not entitled to a fresh period of limitation after the estate has been released. He also relied upon Umakanta Sen v. Hira Lal 1917 Cal 745 where it was held that the release of an estate from the Court of Wards did not give a fresh start to limitation if the man was not a minor, and Section 7, Lim. Act, did not apply to him.

18. Another case relied upon by him is a decision of the Privy Council in Nakimo Dewani v. Pemba Diehen 1921 PC 22, where it was held that the manager of the Court of Wards as a guardian of the ward can compromise a suit without the permission of the Court. No doubt, it is true that privileges of a minor cannot be extended to a ward of the Court when they are based upon statutory provisions which limit them to the minors. The law of limitation is statute law, and its provisions cannot by analogy be extended to those to whom it has not been extended by the statute itself. But here we are not applying the statute law but the principle of justice, equity and good conscience; and the equitable considerations which enable the Courts to give relief to a minor, who had suffered loss on account of the neglect of his guardian, should in my opinion be also extended to a ward of the Court who for all practical purposes is in the same position as a minor. I am therefore of opinion that the gross neglect by the manager, which resulted in the ex parte decree, entitles the plaintiffs of the suit to get the same relief against that decree as they would have got if the defendant in the previous suit had been a minor. The next consideration is whether the decree can be collaterally challenged, or it has to be formally set aside before the plaintiff can get a relief in this case. Section 44, Evidence Act, provides that:

Any party to a suit or other proceeding may show that any judgment, order, or decree, which is relevant u/s 40, Section 41 or Section 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

19. The ex parte decree in this case is relevant u/s 40 of the Act which enacts that:

The existence of any judgment, order, or decree, which by law, prevents any Court from taking cognizance of a suit, or holding a trial, is a relevant fact, when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.

20. It is clear therefore that if a decree is obtained by fraud or passed without jurisdiction, the party against whom the decree is sought to be used can in the suit itself show that the decree cannot operate as res judicata as it was obtained by fraud. The question is whether the decree passed on account of the gross negligence of the guardian can be so challenged. Gross negligence amounts to fraud and affects the proper representation of the minor and thus takes away the jurisdiction of the Court to pass a decree, as a Court cannot pass a decree against a minor unless he is represented by a guardian. In Lalla Sheo Churn Lal v. Ramnandan Dobey (1895) 22 Cal 8, already referred to, their Lordships observed:

The statutory bar in Section 103 cannot have a greater effect than that provided by Section 13, or, in other words, an infant cannot be in a worse case where his next friend or guardian fraudulently or negligently omits to appear than where he appears, and fraudulently or negligently submits to a decree or otherwise prejudices the interest of the infants. The question therefore reduces itself to the question whether negligence of a next friend prevents the operation of the law of res judicata. According to the law, as administered in England, gross negligence as well as fraud prevents the operation of the bar.

21. They then quoted from Macpherson on Infants as follows:

An infant plaintiff, though thus favoured in the course of the suit, is as much bound by a decree and by all the proceedings in a cause as a person of full age, and cannot, nor can his representatives open the proceedings, unless upon new matter, or on the ground of gross ladies, or of fraud and collusion, which will annul the proceedings of the Courts of justice as much as any other transactions.

22. Then they quoted from Simpson on the Law of Infants:

A decree may also be impeached where there has been gross negligence by the next friend in the conduct of the infants case, or new matter discovered since the date of the decree.

23. They further quoted the observation of Sir R. Malins, V.C. in In re Hoghton (1884) 18 Eq 573, which ran thus:

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

24. They then proceeded:

From this it is clear 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. We can see no reason why in this country an infant should be in a worse position. In cases outside Calcutta we are bound, in the absence of statutory provision, to apply rules of equity and good conscience. These rules cannot be more restricted than the rules of equity administered in England.

25. As their Lordships have pointed out, Section 103 (now Order 9, Rule 9) is analogous to Section 11 of the present Code (res judicata). In one case if the plaintiff is absent and the defendant appears and the suit is dismissed for default of the plaintiffs, no fresh suit can be instituted. u/s 11 if an issue has been tried in the presence of the parties by a Court of competent jurisdiction, it cannot be tried again. Both bar the trial of an issue again. Their Lordships held that the plaintiff could ignore the bar and proceed with a fresh suit. On the same principle, in my opinion, the plaintiffs in this case can ignore the former ex parte decree and seek relief which they have sought. It is to be noticed that the principle underlying this decision and the authorities relied upon seems to be that gross negligence of the guardian or next friend stands on the same footing as fraud. In the case of Eshan Chundra Safooi v. Nundamoni Dassee (1884) 10 Cal 357 it was held that when the next friend of a minor fraudulently withdraws a suit without permission to bring a fresh suit, one of the modes of avoiding the bar was for the minor to bring a fresh suit and ignore the previous proceeding. This was a case of fraud, and referring to this case the learned Judges of the Calcutta High Court in Lalla Sheo Churn Lal v. Ramnandan Dobey (1895) 22 Cal 8 observed:

As fraud and negligence are, in our opinion, on the same footing, the plaintiff has the same relief in each case.

26. In Siraj Fatma v. Mahmud Ali 1932 All 293, already referred to, Sulaiman, J., when dealing with the decree passed against a minor on account of the gross neglect of his guardian observed (p. 664):

It seems to me that it is also possible to avoid the effect of the provisions of Section 11, Civil P.C, by holding that the minor ceased to be a party to the suit when his guardian ad litem was grossly negligent. Of course, there can be no bar of res judicata where a party in the subsequent suit was not, properly speaking, a party to the previous suit.

27. At p. 666 their Lordships referring to a decision of the Judicial Committee in Walian v. Banke Behari (1903) 30 Cal 1021 where it was held that the minor was bound by a decree obtained against him if his interests had been duly protected and he was effectively represented by his mother, even though there was an absence of an order appointing her as his guardian, said:

It therefore follows that the real basis of the binding character of a decree against a minor is the fact of his having been represented by a proper person, and not the mere existence of any formal order appointing a guardian for him. Even when there is such an order, if the guardian does not properly represent him, the decree would not be binding. On the other hand, even if there, be any defect in the formal appointment of a guardian, the decree would be binding upon him if he is sufficiently represented and his interests are well protected.

28. The learned Judge at p. 657 of the report seems to be in agreement with the view of the Calcutta High Court that fraud and gross negligence stand on the same footing. In Chunduru Punnayyah v. Rajam Viranna 1922 Mad 273 already referred to, the plaintiff instituted a suit to avoid a decree on the ground of gross negligence on the part of the guardian ad litem. The Madras High Court held that the decree was liable to be set aside on that ground. The learned Judges referred to the case of Subbanna v. Narasamma 1915 Mad 384 where Sankaran Nair and Spencer, JJ., had held that a minor was not bound by a decree passed against him where his guardian showed gross negligence as by not setting up a good defence of which he must have been aware, and observed as follows:

Neglect by a guardian to plead past payment or to object to a personal decree being passed against minors was held in Girish Chunder Mookerjee v. Miller (1879) 3 CriLR 17 to be gross misconduct amounting to fraud.

29. In the Madras case referred to above a decree against a minor was put forward as res judicata. The Court held that it was not, as the guardian of the minor was guilty of gross negligence and the minor was not bound by the decree. In the Calcutta case referred to there was gross misconduct of the guardian, but there was a finding of fraud as well and it was held that a suit to set aside the decree and the sale thereunder was maintainable. Mr. Mullick referred us to the case of Malkarjun v. Narhari (1901) 25 Bom 337 for the proposition that a judicial sale was not a nullity and could not be treated as invalid, not with standing even material irregularity, for the jurisdiction of the Court to execute had been complete throughout and was not lost on account of error. This case, in my opinion, has no application. Here the plaintiffs are urging that the ex parte decree relied upon by the defendants is not res judicata on the ground of gross negligence of the guardian which amounted to fraud. It is not a question of irregularity or irregular exercise of jurisdiction. He also relied upon the case of Hanmantapa v. Jivu Bai (1900) 24 Bom 547. There the plaintiff against whom a decree was obtained during his minority brought a fresh suit and when the previous decree was pleaded as res judicata he set up neglect of his guardian. The suit was dismissed not on the ground that it was not maintainable but on the ground that the plaintiff failed to establish negligence. Their Lordships referring to the case of Lalla Sheo Churn Lal v. Ramnandan Dobey (1895) 22 Cal 8 and the case of Cursandas Natha v. Ladkavahu (1895) 19 Bom 571 said:

It is only where fraud and negligence is proved on the part of the guardian of the minor that the right to bring a suit to set aside the previous decision can be claimed by the minor or his administrator.

30 It is clear from this decision also that the principle was accepted, though it was not applied to that case as the plaintiff did not prove negligence. In the case of Cursandas Natha v. Ladkavahu (1895) 19 Bom 571, referred to above, the principle of the decision reported in Lalla Sheo Churn Lal v. Ramnandan Dobey (1895) 22 Cal 8 seems to have been accepted. Mr. Mullick has further relied upon some observations in Raghubir Dayal Sahu v. Bhikyalal Misser (1886) 12 Cal 69 for the proposition that a decree against a minor is as much binding upon him as if he was of full age and it seems to have been pointed out that if the minor sought to set aside the decree his remedy was by a separate suit and can only succeed upon proof of fraud or collusion. This case seems to have also laid down that if the minor wants to question the decree on the ground of negligence of his guardian, his remedy is by way of review. The case seems to me to stand by itself. The consensus of opinion seems to be that a suit lies to set aside a decree passed against a minor on account of the negligence of his guardian and that the decree is not binding upon the minor. My conclusions therefore are that the ex parte decree against the plaintiffs father was passed on account of the gross negligence of the manager and that the plaintiffs father at that time being a ward of the Court the decree stands on the same footing as a decree obtained against a minor passed on account of gross negligence of his guardian. Gross negligence of the guardian amounts to fraud, and furthermore when the guardian neglects to look after the interest of the minor, the minor is not properly represented in the suit and a decree thus passed is without the minor defendant being properly represented. The decree is not therefore a bar to the plaintiffs present suit and can be collaterally challenged.

31. In view of what I have said above, it is not necessary to consider the question of limitation. Assuming however that the plaintiffs are not entitled to challenge the decree collaterally, the question arises whether the plaintiffs prayer to declare the decree null and void is barred by limitation. The plea of limitation was not raised by the defendants in the written statement nor before the lower Court at the time of the hearing of the suit. It was for the first time raised in the grounds of appeal in this Court. Now having held that the suit to set aside a decree on the ground of gross negligence of the guardian is maintainable, the period of limitation applicable will be six years under Article 120, Limitation Act, from the date when the right to sue accrued. It is clear to me that Article 95, which refers to suit for setting aside a decree obtained by fraud, is not applicable.

32. The question therefore is, when did the cause of action accrue in the present case Was it on the date when the decree was passed, or on any subsequent date In Sadashivappa v. Sangappa 1931 Bom 500 where a decree was passed against a minor on the basis of an award when the suit was referred to arbitration without the sanction of the Court, it was held that under Article 120, Lim. Act, the period did not commence to run from the date of the decree. A minor was in possession of the land and there was nothing to show that he had any knowledge at all of the existence of the decree until a date when the notice was issued on him to show cause why the decree should not be enforced. The learned Judges relied upon the observations of their Lordships of the Privy Council on Article 120, Lim. Act, in Bolo v. Koklan 1930 PC 270, which was to the effect that there may be no right to sue unless there was an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit was instituted. In M. Basavayya v. Bapanna Rao 1930 Mad 173 it was held that in a suit falling under Article 120, Lim. Act, the cause of action was not merely the passing of an adverse decree against the plaintiff, but in addition to it the fact that such a decree was passed by reason of the gross misconduct or gross negligence of his guardian ad litem, and limitation did not begin to run the moment the decree was passed, but only when the gross negligence of the guardian which alone would entitle the plaintiff to have the decree set aside became known to him. Their Lordships held that when relief was sought on the ground of fraud, misconduct, mistake, etc., the limitation begins to commence from the time when fraud, misconduct or mistake became known to the plaintiff.

33. They referred to Arts. 90, 91, 92, 95, 96 and 114, Lim. Act, and said that Article 120 being an omnibus one, the general expression was necessitated by the variety of suits coming within its purview in some of which there would be fraud, misconduct or mistake as part of the cause of action. They held that it was in consonance with the scheme of the Act as indicated by such specific articles referred to above dealing with suits based on a cause of action constituting fraud, misconduct, etc., that the right to sue should be deemed to accrue under Article 120 from the time of the plaintiffs knowledge of the same in respect of suits based upon similar grounds coming under that article. There are two more Madras cases which also lay down that in a case where Article 120 applies the period begins to run from the date of knowledge of the cause of action: one is Mammali v. Acharatte Parakat Maligapurayil Cheria Kunhipakki Haji 1916 Mad 743. The other case which seems to be somewhat analogous to the present one, is Periya Aiya Ambalam v. Shunmugasundaram 1914 Mad 334, where it was held that whore a trespasser dispossessed a mortgagee in possession and continued in possession asserting a title adverse to the mortgagor also, such dispossession would be adverse to the mortgagor from the time the mortgagor had knowledge of the assertion (though he may not then have been entitled according to the terms of the mortgage to recover possession from the mortgagee). The onus was on the trespasser to prove not only that he asserted the right adverse to the mortgagor but also that the latter knew it. In the case before us unfortunately the plaint does not state when, the plaintiff came to know of this ex parte decree.

34. The plaintiffs are still under the Court of Wards and the knowledge necessary for the institution of the suit will be the knowledge of the Court of Wards. Having held that there was gross negligence on the part of the manager, there is nothing to show that the Court of Wards came to know of the decree and the gross negligence of the then manager before the mortgage was redeemed, and when the defendants refused to give possession of the land which is the subject matter of the suit. The decree was a purely declaratory one. Though it declared a title in the plaintiffs of that suit it was not executed against any property. The trend of the plaint seems to me to indicate that the plaintiffs came to know of if after the redemption of the mortgage in 1926 and as such the suit is not barred by limitation. The defendant did not raise the question of limitation. Had they done so, it would have been open to the plaintiffs to make a specific allegation about the date of their knowledge and prove it. No doubt the defendant appellants were entitled to raise the question of limitation even at the stage of the appeal, but the decision of this question depended upon the fact when the Court of Wards came to know of the decree, etc., which required evidence. Under the circumstances of this case I am of opinion that it must be held that the Court of Wards had no knowledge of it prior to the redemption of the mortgage in 1926.

35. Mr. Mullick appearing on behalf of the respondents has relied upon the cases of Prasanna Venkata Chella Reddiar v. Collector of Trichinopoly 1914 Mad 708 and Otiappurakkal Thazhate Soopi v. Cherichil Pallikkal Uppathumma (1910) 33 Mad 31. These two cases do not seem to have approached the question from the point of view which was taken by the Privy Council and the two cases already referred to--one from Bombay and another from Madras--and ignore the fact that in a case when relief is sought on the ground of misconduct, etc., the plaintiff without any fault of his own may be kept quite in the dark about the accrual of the cause of action. The case may not come u/s 18, Lim. Act, but nevertheless the plaintiff is entitled to urge that the cause of action did not accrue to him until he came to know of the cause of action. I am therefore of opinion that the prayer for a declaration that the ex parte decree is void is not barred by limitation.

36. The respondents have not pressed their cross-objection in respect of compensation and damages. The result is that the cross-objection of the respondents is dismissed with costs. The appeal is partly allowed. The decree of the Subordinate Judge so far as it dismisses the plaintiffs suit in respect of certain lands is confirmed. The decree in favour of the plaintiffs is modified. The plaintiffs suit in respect of

of Schedule A and 9.93 acres of land of Schedule A(1), the plot numbers of which have been given in the previous part of this judgment and in respect of which I have held that the defendants have established their occupancy right as they had got those lands on exchange from other raiyats, is also dismissed. The plaintiffs will get joint possession and mesne profits as ordered by the lower Court in respect of the lands which are finally decreed in their favour. The order of the lower Court in respect of the costs of that Court will stand. The lower Court had given the plaintiffs a decree in respect of 142.03 acres of land out of which the suit has been dismissed in respect of 57.34 acres. Each party will get from the other costs of the appeal proportionate to its success. The appellants will, however, get the full costs incurred by them in the preparation of the paper-book.

Dhavle, J.

37. I agree. The plaintiffs case that the defendants ancestors had no raiyati land in the village is definitely disproved by the jamabandi of 1273 Fasli put in for the plaintiffs themselves. The irrigation khasra of 1871 shows that the defendants ancestors were in possession of 185 acres, and the plaintiffs have not been able to offer any plausible suggestion how the defendants ancestors could have been found in possession of this area of land except as raiyats. The learned Subordinate Judge was plainly right in holding that the presumption of correctness attaching to the Record of Rights was rebutted and in dismissing the plaintiffs claim in respect of such plots as could be identified from the irrigation map read with the irrigation khasra to have been in the possession of the defendants ancestors long before they became mortgagees or proprietors (in part) of the mauza. That the lower Court has made an error of record in respect of the area of 7.14 acres lying in plots 408 to 410 is clear and has not been disputed before us. The learned Subordinate Judge in rejecting the defendants story of exchange of raiyati lands could not take into account the bearing on the oral evidence adduced for the defendants of the fact that the witnesses who support the defendants story are now in possession of lands identifiable in fact with lands shown by the irrigation papers to have been in possession of defendants ancestors in 1871. This was because in his view they were not identifiable in fact but defendants have established the contrary. Here also the plaintiffs have not been able to offer any plausible suggestion against the obvious inference in favour of the defendants story. In the circumstances the inference is irresistible and the defendants prepared a list of items so identifiable which was supplied to the plaintiffs. The accuracy of this list has not been challenged by the plaintiffs, and it follows that the defendants must succeed in respect of an additional area of 40.27 acres out of Schedule A and of 9.93 acres out of Schedule A (1).

38. The learned Subordinate Judge has found that the decree obtained by the defendants in the suit of 1912 was vitiated by the gross negligence of the then Manager of plaintiffs estate. This finding of fact is supported by ample evidence, and it is clear that it was such negligence as led to the loss of a right which, if the Manager had defended the suit with due care, must have been successfully asserted. It is well settled that a minor can avoid a decree obtained against him on the ground of the gross negligence of his guardian or next friend, and that such negligence prevents the operation of the bar of res judicata. The rule is based not on statute but on justice, equity and good conscience, and will apparently enable the minor even to ignore the decree on the ground that such negligence of the Manager or next friend implies that he was not properly represented in the suit and therefore ceased to be a party in fact. This is referred to in the exhaustive judgment of Sulaiman, J., in Siraj Fatma v. Mahmud Ali 1932 All 293, and is put by Sen, J., in the same case in the following words:

Where in a suit or proceeding the minor is represented by a guardian ad litem but the latter does not function as such, and through inexcusable negligence fails to carry out the duties which justice demands or necessity compels, the minor for all practical purposes is unrepresented in the suit. A decree or order obtained against a minor who is not properly represented in the action cannot be pleaded as a bar to a suit instituted by the minor relating to the same subject matter. (See pp. 688 and 689 of the report.)

39. A ward of Court is under a definite disability in the matter of litigation, and vis-a-vis the civil Court is even more helpless than a minor. u/s 51 of our Court of Wards Act, 1879 the Manager of a wards property, or if there is no Manager, the Collector of the district shall be named as next friend or guardian for the suit and shall in such suit represent such ward; and no other person shall be ordered to sue or be sued as next friend or be named as guardian for the suit by any civil Court in which such suit may be pending. Section 52 of the Act leaves it to the Court of Wards to nominate or substitute any other person to be next friend or guardian for any such suit, and requires the civil Court to give effect to such substitution. It is also settled [see Nakimo Dewani v. Pemba Diehen 1921 PC 22 that a guardian appointed under the Court of Wards of 1879, has power to compromise a suit on behalf of the ward and that the validity of a compromise entered into by such guardian does not depend on examination and approval by the trying Court. A ward may have his remedies against the Manager and has the advantage of the Manager being subject to the control of the Court of Wards; but when the Manager is grossly negligent, the ward is entirely helpless vis-a-vis third parties. It seems to me therefore that the grounds on which a minor is held entitled to avoid or ignore a decree by reason of the gross negligence of his guardian or next friend apply with even greater force to the case of a ward of Court.

40. There is an obvious difference between avoiding a decree and being entitled to ignore it, i.e. to treat it as a nullity. In the former case the question of limitation arises and as a matter of fact the plaintiffs have asked for a declaration that the old decree is not binding. No article of the Limitation Act specially deals with the negligence of a guardian or a Manager. We must, therefore, fall back upon the residuary article, Article 120, which prescribes a period of six years from the time "when the right to sue accrues." It cannot be said in the present case that the right to sue for a declaration that the decree in the suit of 1912 is not binding on the plaintiffs on account of the gross negligence of the then Manager of their estate under the Court of Wards accrued as soon as that decree was passed. There could, of course, be no right to sue for such a declaration before that decree was passed; but the right to sue is based at least as much on the plaintiffs coming to know of the Managers negligence in letting that decree be passed as on the passing of the decree itself. This involves a question of fact which was not raised below. The learned Subordinate Judge, in discussing issue 5, begins with the statement:

At the time of the argument, on defendants side, the question of limitation has been raised only in respect of plaintiffs claim for damages for the removal of trees.

41. If the plea of limitation had been raised with reference to the plaintiffs right to sue for a declaration that the decree of 1913 was not binding on them, evidence would have been available as to the date when they (or rather the Court of Wards which had taken their estate under its charge) came to know of the negligence of the then Manager. The decree of 1913 made no change in the actual possession as the defendants were entitled to and did remain in possession as before till the redemption of their mortgage in 1926. It may therefore be fairly assumed that the old Managers negligence came to light when after the redemption of the mortgage the defendants declined to let the plaintiffs come into possession of their share and thus infringed the plaintiffs right to the property. The present suit was filed in September 1929 well within the period of six years from the date of redemption.