Coutts, J.The facts of the case are shortly as follows: Defendants Nos. 1 and 2 are maliks of the patti in which the land in suit lies. Defendant No. 1 and the mother of defendant No. 2 brought a suit for arrears of rent of this land against defendant No. 5, plaintiff No. 4, and his brother Gajadhar Rai, raiyats of the holding. They obtained a decree and in execution of the decree they purchased the holding, subsequently parting with some of their interest to the other defendants. The plaintiffs Nos. 1 to 3 were not parties to the rent-suit and their case is that they were necessary parties as they were co-sharers in the holding. The case of the plaintiff No. 4 is that, although the decree was against him, he was a minor at the time of the suit and was not properly represented. The plaintiffs accordingly brought this suit for a. declaration that they were entitled to the land in suit. The defendants contended that the plaintiffs Nos. 1 to 3 had no interest in the holding and that the plaintiff No. 4 was properly represented by his mother who had been appointed his guardian ad litem by the Court.

2. The Court of first instance found that the plaintiffs Nos. 1 to 3 had no interest in the holding and that the plaintiff No. 4 was properly represented. The suit was accordingly dismissed. The plaintiffs appealed and on appeal the decision of the Court of first instance has been upheld in so far as the plaintiffs Nos. 1 to 3 are concerned but so far as the plaintiff No. 4 is concerned it has been held that he was not properly represented and that the suit, in so far as his half share in the holding is concerned, must succeed. The defendants have appealed to this Court.

3. The only question in appeal is, whether in fact the plaintiff No. 4 was properly represented by his mother in the rent-suit. It appears that the Court appointed plaintiff No. 4s mother as his guardian; notices were issued on her, but her consent was not taken and she did not appear in the suit which was decreed ex parte as against the plaintiff No. 4. The learned Subordinate Judge has held, on the authority of Krishna Chandra Mandal v. Jogendra Narain Roy 27 Ind. Cas. 139 : 19 C.W.N. 537 : Cri.L.J. 469, that it was not competent to the Court to appoint the mother of plaintiff No. 4 as his guardian without her express consent, that the appointment was without jurisdiction and that the minor was not represented. I am in agreement with this view. It is the view which has been expressed in this Court in the case of Mohan Krishna Dar v. Har Prasad 40 Ind. Cas. 2, it is the view which has been uniformly adopted in Calcutta, vide Annada Prasad v. Upendra Nath Dey 65 Ind. Cas. 13 : Cri.L.J. 293 : 26 C.W.N. 781 and it is undoubtedly, in my opinion, the correct view of the law. We have been-referred by the learned Vakil for the appellants to certain decisions of the Privy Council and of this and other High Courts in India in which it has been held that, although no appointment of a guardian has actually been made by the Court, yet if the mother appears and effectively represents her minor son a formal order for her appointment is not necessary. These, however, are entirely different cases. In the present case the minor was not only not effectively represented but was not represented at all. We have also been referred to certain decisions of the Allahabad High Court in which it has been held that, where an appointment has been made without consent and where a decree has been passed ex parte, unless it has been shown that the minors interests have been prejudiced by the irregularity the minor has no right to set aside the proceedings: Chhatter Singh v. Tej Singh 59 Ind. Cas. 671 : 18 A.L.J. 956 : 2 U.P.L.R. (A) 384 : 43 A. 104. With all respect to the learned Judges of the Allahabad High Court who decided this case and other cases relied on in this decision, I am unable to accept the view. The provision of Order XXXII, Rule 4(3) in respect of consent is mandatory and I can find nothing in the law to suggest that, unless it is established that the minor is prejudiced, he cannot get relief.

4. This case has, in my opinion, been rightly decided and I would dismiss the appeal with costs.

Das, J.

5. I agree.