1. This appeal arises out of a suit for a declaration that arent decree passed in suit No. 7 of 1896 of the Court of the Subordinate Judgeof Hooghly, and the proceedings in execution thereof were fraudulent, collusiveand inoperative against him, and for recovery of Rs. 2,076-7-6 which thedefendant had realized from him, by arresting him in execution of the saiddecree.

2. The plaintiff alleged that the patni taluk, in respect ofwhich the rent decree was passed, belonged exclusively to one Lakshi Narain,and he, the plaintiff, had no interest therein, that he was a minor at the timethe said decree was passed, but was described in the suit as if he was of age,that no summons had been served upon him and an ex parte decree was passedagainst him, that the said Lakshi Narain put in vakalatnamahs and applicationsin the execution proceedings purporting to have been signed by him, that inexecution of the decree, after the patni taluk had been sold and some portionof the decretal amount had been realized, the plaintiff was arrested and Rs.2,076-7 was realized from him.

3. The Court of first instance held that the decree and theexecution proceedings were inoperative against the plaintiff and passed adecree for the amount claimed in his favour. On appeal, the District Judgereversed that decree and dismissed the suit. The plaintiff has appealed to thisCourt. As there was no definite finding by the lower Appellate Court upon thequestion of the minority of the plaintiff, the case was remanded for a findingwhether the plaintiff was a minor at the date of the institution of the saidsuit No. 7 of 1896 and at the date of the decree passed in that suit. TheDistrict Judge has returned his finding that the plaintiff was a minor.

4. The present suit was instituted on the 21st December1905, and the plaintiff attained his majority several years before the suit.If, however, the decree is a nullity as against him, no question of limitationwould arise. The question, therefore, is whether a decree passed against aperson, who is really a minor but who is described in a suit as if he was ofage, can be treated as a nullity as against such person, or is one which it isnecessary to set aside, in other words, whether it is merely voidable.

5. There can be no doubt that a decree against a person whois neither a party nor is properly represented on the record is a nullity andmight be disregarded without any proceeding to set it aside. If any authorityis needed for this proposition, we may refer to the case of Khairaj Mal v.Daim32 C. 296 :2 A.L.J. 71 :1 C.L.J. 584 :7 B.L.R. 1 :9 C.W.N. 201 :32 I.A. 23.In the present case, the plaintiff is found to have been a minor when the suitfor rent was brought and the decree was passed. Having been sued as if he wasof age, no guardian ad litem was appointed for him. His name appeared as adefendant on the record, but was he a party in the eye of law So long as aguardian ad litem is not appointed, a minor cannot take any steps in the suitand cannot be said to be a party to a suit in the proper sense of the term. Theruling of the Judicial Committee in the case of Rashid-un-Nisa v. MuhammadIsmail Khan: 13 C.W.N. 1182 :10 C.L.J. 318 :3 Ind. Cas. 864.: 6 A.L.J. 822 :6 M.L.T. 280 (P.C.) 11 :B.L.R. 1225 : 31 A. 572 :36 I.A. 168 isconclusive upon this point. There a decree had been obtained on an award madeby arbitrators, and in the award the elder sister of the minor appellant inthat case was described as acting for herself and as guardian of the minor. Asa matter of fact, an application by the elder sister was pending at the date ofthe award before the District Judge for a certificate of guardianship of theminor, which was ultimately rejected. The Privy Council held that the appellantwas entitled to a declaration that the award was a nullity so far as she wasconcerned. There were several other decrees against the minor in which she wasdescribed as under the guardianship of her elder sister and at least in one ofthe suits the sister was appointed guardian ad litem of the minor by theCourts. But the sister being a married woman could not be appointed guardian adlitem and the Court of first instance held that the minor not having beenproperly represented, the decrees and sales were not binding on the minor. Thedecision of the Subordinate Judge was reversed by the High Court, on the groundthat the decrees upon which the execution proceedings were founded were not andcould not be in any way impeached, and that the transactions impeached beingproceedings in execution could only have been objected to under the provisionsof Section 244 of the Civil Procedure Code. The Privy Council pointed out thatSection 244 applied to questions arising between the parties to the suit inwhich the decree is passed, that is to say, between parties who have beenproperly made parties in accordance with the provisions of the Code, and theirLordships held that the minor was never a party to any of the suits in theproper sense of the term and restored the decree of the Subordinate Judge.

6. In the case of Narsingh Narain v. Shaikh Jahi Mistry15C.L.J. 3 :13 Ind. Cas. 414 [LQ/CalHC/1911/228] where the mother of an infant defendant, a marriedwoman, was appointed guardian ad litem without her consent, it was heldfollowing the above case that the infant must be taken not to have beenrepresented for the purpose of the suit and that in such a case, he is in thesame position as if he was not made a party to the suit at all, and referringto the case of Khairaj Mal v. Daim 32 C. 296 :2 A.L.J. 71 :1 C.L.J. 584 :7B.L.R. 1 : 9 C.W.N. 201 : 32 I.A. 23 the learned Judges said that it was clearfrom the decision of the Judicial Committee in that case that the contraventionof the statute is not merely an irregularity but renders the proceedings anullity so far as the infant is concerned

7. These decisions are binding upon us, and we mustaccordingly hold that the plaintiff was no party to the rent suit in the propersense of the term and is entitled to treat the decree as a nullity so far as heis concerned.

8. It may be said that in the cases cited above, theminority of the defendant was known to the plaintiff and to the Court, but sofar as the questions whether a minor without a proper guardian ad litem beingappointed for him is a party to the suit, and whether a decree in such a suitis a nullity are concerned, there is no difference in principle between a casewhere the minority is known and a case where the plaintiff and the Court arenot aware of the minority of the defendant. Besides, the knowledge or ignoranceof the plaintiff cannot affect the rights of an infant.

9. The case of Musammat Bibi Walian v. Banke Behari PershadSingh30 C. 1021 (P.C.) :30 I.A. 182 : 7 C.W.N. 774 :5 B.L.R. 882 isdistinguishable. There the suit was instituted against the minors asrepresented by their mother as their guardian with the sanction of the Court.The mother appeared throughout the proceedings as guardian of the minors. The PrivyCouncil held that the minors were effectively represented in the suit by theirmother and with the sanction of the Court, that the only defect was that noformal order appointing her as guardian was drawn up, but that it was not shownthat the alleged defect caused any prejudice to the minors and their Lordshipsaccordingly were of opinion that the defect of procedure was cured by theprovisions of Section 578, Civil Procedure Code.

10. The decree being a nullity so far as the plaintiff isconcerned, the suit cannot be held to be barred by limitation. But if he wasliable with the other defendants for the rent of the patni for which the decreewas obtained, we do not think he should be allowed to recover the amountrealized from him under the decree. The Court of first instance found upon theevidence that plaintiff had no interest in the patni. The learned DistrictJudge, while holding that on the evidence "it would be exceedinglydoubtful that the plaintiff had supported any part of the burden which is onhim to show that the taluk was Lakhis private property", does not come toa definite finding on the point. The case should, therefore, go back to thelower Appellate Court, in order that that Court may decide whether theplaintiff had any interest in the patni during the period for which the rentdecree was obtained so that he was liable for the patni rent along with theother defendants in the rent suit. The decree of the lower Appellate Court isaccordingly set aside, and the case is remanded to that Court for disposalaccording to law after coming to a finding upon the point stated above. Coststo abide the result.

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Purna Chandra Kumarvs. Bejoy Chand Mahatap Bahadur and Ors.(26.02.1913 - CALHC)