Govinda Menon, J.
1. This appeal is filed by the plaintiffs and it arises out of a suit commenced by the plaintiffs through their next friend for a declaration that the compromise decree passed in O. S. 21/1124 of theAnjikaimal District Court is invalid and not binding on the plaintiffs and their Illom and for ancillaryreliefs.
2. Plaintiffs 1 to 6 and defendants 3 to 7 are the members of an undivided Namhoodiri illom known as Cheruvally Swaroopam of which 3rd defendant is the karnavan. The 3rd defendant is said to be illiterate, dull headed and incapable of management and the 4th defendant was therefore managing the illom affairs under an udampady Ext. PL The illom owned considerable properties in the Cochin area of the former TC. State. While the fourth defendant was in management the 1st defen-dant was appointed as the manager to look after the illom properties under an unregistered karar Ext P20 dated 4th Edavam 1123.
The 1st defendant took over the management on 8th Edavam 1123. The karar had provided that he should not incur any debts and that he should collect pattom, michavarom, Jenmikaram etc., and discharge the debts. Subsequently, a registered karar Ext. P15 to the same effect was also executed on 6th Mithunam 1123. Not long after the 1st defendant took over the MANAGEMENT it was found that he was not properly managing the illom affair and that he was mis-managing and mis-appropriating the income of the illom.
So defendants 3 and 4 issued a notice on 20-12-1123 terminating his managership and calling upon him to 'render accounts. No accounts were rendered; but the 1st defendant instituted the suit O. S. 21/1124 against the Swaroopam claiming a sum of Rs. 5,250 from the illom. Ext. P4 is the plaint in the suit. Rs. 140 was claimed as arrears of salary and another sum of Rs. 5217-3-0 was claimed as amounts which he had expended for the day to day expenses of the illom, for some medical treatment and for certain other ceremonies.
3. The case of the plaintiff in this suit is that the entire claim was false and that no amounts were due to the 1st defendant. The plaintiffs in this case were defendants 3 and 6 to 10 respectively in that suit. Defendants 3 and 4 in this suit were defendants 1 and 2 and defendants 5 and 6 were defendants 4 and 5. The 7th defendant in this suit was the 11th defendant, Defendants 3 and 4 in this suit in turn had filed a suit O. S. 120/1124 against the present 1st defendant for the rendition of accounts for the period the 1st defendant was in management and a sum of Rs. 4000/- was'claimed from him.
While these two suits were pending the 5thdefendant in this suit filed O. S. 91/1950 to remove the present defendants 3 and 4 from Karana-vasthanam. A receiver was appointed in the suit.That receiver was impleaded in O. S. 21 oE 1124also. Defendants 3 to 5 and the receiver the 13thdefendant had filed written statement contestingthe claim of the 1st defendant, Ext. P5 (b) is thewritten statement of defendants 1 and 2, Ext. P5is the written statement of 4th defendant andExt. P5 (a) is the written statement of the receiver.The 7th defendant the mother was the guardianof the minors.
4. The plaintiff in the case alleges that knowing that the 1st defendant's suit was beinghotly contested, he in collusion with the 4th defendant and one Krishnan Namboodiri the brother of the 7th defendant induced 7th defendant to sign certain blank papers without making her understand as to what they were intended for and that in those papers compromise petitions were prepared for the two suits O. S. 21/1124 and O. S. 120/1124 and they were filed in court. On the basis of the compromise petition Ext. D4, O. S. 120/1124 filed by defendants 3 and 4 was dismissed. Ext. P-12 is the compromise petition in O. S. 21 of 1124 and Ext. P-18 is the order of the court.
Ry Ext. P-12 it was agreed that a decree be passed against the plaintiffs and their illom for the plaint amount and costs with future interest to be realized from the assets of the Swaroopam excepting the properties allotted to the 4th defendant in the compromise Ext. P-11 in O. S. 90 of 1951. The plaintiff's case is that this compromise decree is not valid and binding on them, that the decree is highly detrimental to them and their illom, that there was no jurisdiction to withdraw the contentions and permit a decree to be passed and that no benefit had accrued to the minors Or the illom.
They allege that the decree was brought about by the collusion of defendants 1 and 4 and the brother of the 7th defendant. They say that the 7th defendant their guardian was guilty of gross and culpable negligence. They contend that it only the suit had been contested, the falsity of the plaint claim could have been demonstrated to the court and that no decree would have been passed in the suit.
5. The second defendant is one who had obtained a decree against the 1st defendant in O. S. 317/ 1951 of the Cranganore Munsiff Court and in execution of that decree he has attached the decree passed in O. S. 21/1124. The 2nd defendant has therefore been impleaded as an attaching decree-holder. Defendants 1 and 2 filed separate written statements and the other defendants remained ex parte.
6. The 1st defendant contends that the plaintiffs' Swaroopam were in debts, that the members were finding it difficult to manage, huge amounts had to be paid to the creditors and it was at such a juncture that he was appointed manager. His ease is that he had not received any money under the two mortgage documents referred to in the plaint and that for the purposes of management and for the day to day expenses of the illom he had to incur huge expenses and as no amount was available from the funds of the illom he bad to meet the expenses out of his pocket.
According to him borrowing for such purposes had not been prohibited. He denied mis-management and mis-appropriation and stated that the accounts and vouchers which he had produced in the court would prove the truth of his claim and that O. S. 120/1124 was filed only as a counter-blast to the suit filed by him and that the claim made therein was false. According to him O. S. 21/1124, O. S. 120/1124, O. S. 91/50 and some other suits were all compromised for the benefit of the minors and the illom and that the allegation of fraud and collusion are all false and that the compromise was made bona fide and it is beneficial to the plaintiff's illom.
Therefore he contended that the decree is perfectly valid and binding on the illom and that the plaintiffs are not entitled to the declaration prayed for by them. The second defendant also contended that to his knowledge the compromise in O. S. 21/1124 has been arrived at by the parties in settlement of conflicting and doubtful claims and (hat (he decree passed is not liable to be impeached.
7. The main question involved in the suit was whether the compromise decree in O. S. 21/1124 is invalid and not binding on the plaintiff's illom. The learned Subordinate Judge found that the decree was not vitiated by fraud, collusion or undue influence, that sanction had been obtained from the court, that the provisions contained in Order 32, Rule 7 had been substantially complied with and that the guardian has not been proved to be guilty of gross negligence. The learned Subordinate Judge therefore dismissed the suit.
8. The learned counsel for the appellants during the course of the arguments has almost conceded and rightly too that the plaintiffs cannot be said to have succeeded in satisfactorily proving the case of iraud and collusion set up in the plaint though ou the peculiar circumstances of this case it is stated such an inference is possible. The learned Subordinate Judge has dealt with all the aspects of this matter in para 10 of the judgment and has found that the plaintiffs have not succeeded in showing that there was collusion between defendants 1, 4 and the 7th defendant's brother or that blank papers were got signed from the 7th defendant.
The learned counsel however contends that even in the absence of proof of fraud or collusion, proof of gross negligence on the part of the guardian would be a sufficient ground upon which a decree obtained against the minors could be set aside in a subsequent suit and it is vehemently argued that on the facts and circumstances of this case it is clear that there was culpable and gross negligence on the part of 7th defendant, the guardian, in entering into the compromise, withdrawing the valid contentions which they had and allowing a decree to be passed.
9. The 1st question for consideration therefore is whether a minor can avoid a decree passed against him on the ground of gross negligence of the guardian ad litem even if the minor had not succeeded in proving fraud and collusion on the part of the guardian. Various decisions have been cited before us bearing on this question. We will briefly refer to some of the cases cited before us. In Madras the leading case is that of Chunduru Punnayyah v. Ra-jam Viranna, ILR 45 Mad 425: (AIR 1922 Mad 273). That decision has been followed in Mahomed Shadak Koyi v. Venkatta Komaraju, AIR 1940 Mad 810, and later in Egappa Chettiar v. Ramanathan Chettiar, AIR 1942 Mad 384, the view has been affirmed. It was held that :
'It is open to a minor to challenge a decree passed against him on the ground that his guardian had been grossly negligent in the conduct of the suit in which the decree was passed even in the absence fraud or collusion.'
10. The same view is shared by the High Courts ef Calcutta, Allahabad; Patna and Lahore. At firstthe Calcutta High Court in Raghubar Dyal v. Bhikya Lal, ILR 12 Cal 69, took, the view that a minor could not maintain such a suit without pleading fraud or collusion on the part of the guardian. It was held that while a minor had a remedy against gross negligence of his next friend it was by way of application for review and not by a subsequent suit. But a contrary opinion was expressed in Lalla Sheo-Churn Lal v. Ramanandan Dobey, ILR 22 Cal 8. That opinion was maintained in a later case in Mahesh Chandra v. Manindra Nath, AIR 1941 Cal 401, where it was held that :
'Gross and culpable negligence on the part of the guardian ad litem is a sufficient ground to enable the infant to set aside a decree obtained against him. The minor's right to bring such a suit is an exception to the ordinary rule according to which a decree can be set aside only on grounds of fraud and collusion and is based on the broad principle of justice, equity and good conscience. Neither Section 2 or Section 44 of the Evidence Act, nor Section 11 C. P. C., bar such a suit.'
11. The Full Bench of the Allahabad High Court in Mt. Siraj Fatma v. Mahmood Ali, AIR 1932 All 293, after dealing with the entire case law in the matter also held that gross negligence was a sufficient ground to avoid a decree but Their Lordships also stated that :
'The test of negligence should be the not doing of what a reasonable man, guided by prudent considerations which regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The negligence in order to be a good ground for the avoidance of a decree must be of such a nature as to justify the inference that the minor's interests were not at all protected and therefore he was not properly represented. The direct result of the negligence must be a serious prejudice to the minor and the negligence must not be merely such as might be innocently committed even by a reasonable person taking the ordinary pecautions which he would have taken in his own case. Where the negligence is so gross as to amount to a clear violation of the duty cast upon the guardian, although not brought to the notice of the court at the time, the decree can be avoided.'
12. The Lahore High Court in the Full Bench case in Iftkhar Hussain Khan v. Beant Singh, AIR 1946 Lah 233, also has elaborately considered the case law and held that :
'A minor can avoid a decree passed against him on the ground of gross negligence on the part of his guardian ad litem, even if he has not succeeded in proving fraud or collusion on the part of Such guardian.'
13. The Full Bench of the Patna High Court in Kamakshya Narain Singh v. Baldeo Sahai, AIR 1950 Pat 97, has also after an elaborate discussion-of the Indian and English case law held that a minor can avoid a decree on the ground of gross negligence of his guardian even if he has not succeeded in proving fraud or collusion. The same view has been taken by the Travancore-Cochin High Court in Sankaranarayanan Namboodiri v. Kali, 1955 Ker LT 660, and in the Full Bench case of the Cochin High Court in Saraswathi Amma v. Krishna Menon,86 Cochin 602. That the English law recognizes this principle is clear from the authorities pointed out by Trevlyan and Ameer Ali, JJ.f in ILR 22 Cal 8 and this has been accepted in a large number of cases.
14. Our attention was drawn to the Full Bench decision of the Bombay High Court in Krishnadas Padmanabbrao Chandavarkar v. Vithoba Annappa, AIR 1939 Bom 66, which takes a contrary view. There it was held that gross negligence apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant cannot be made the basis of a suit to set aside a decree obtained against him. This decision wherein the leading judgment is of Beamount, C. J., follows an earlier ruling of the learned Chief Justice sitting alone in Auraj Joharmal v. Dalpat Supadu, ILR (1937) Bom 839: (AIR 1937 Bom 464), and is followed in a subsequent decision of the same High Court in Nana Nam-deo Patil v. Dalpat Supadu, AIR 1940 Bom 33.
It must be noted that the earlier decisions of the Bombay High Court were to the effect that gross negligence gave a minor a cause of action. Sec Cursandos Natha v. Ladka Vahu, ILR 19 Bom 571, Hamnantapa v. Jiyu Bai, ILR 24 Bom 547, and Su-reshchandra Jimietram v. Bai Ishwari, AIR 1938 Bom 206. The Full Bench decision of the Bombay High Court has been discussed and considered in the decisions of the other High Courts referred to above and we are in respectful agreement with the views expressed therein, that it does not lay down the correct law.
15. The right of the minor to avoid a decree obtained against him on account of the gross negligence of his guardian ad litem is a substantive right. It is not a mere matter of procedure and does not depend on any rule of evidence. He cannot be prevented from enforcing his substantive right simply because this may cause loss or inconvenience to the plaintiff in the previous litigation. Section 44 of the Evidence Act also does not stand in the way. A substantive right cannot be defeated simply because gross negligence is not mentioned as one of the grounds of avoiding a judgment under Section 44, Evi-dence Act. The provisions of Section 44, Evidence Act is permissive and not prohibitive.
It allows a party to avoid a judgment by proving fraud or collusion, but it does not destroy bis substantive right which exists independently of the Evidence Act. It does not enumerate or exhaust the grounds upon which a decree or order may be attacked. Similarly, if a party has a right to get a decree set aside, Section 11 C. P. C., does not stand in the way. The section only says that the judgment so long as it stands is conclusive. If it is vacated on any ground upon which it can be vacated in law the bar created by Section 11 is automatically removed.
16. The next and the more important question is whether the circumstances of the present case would justify a finding that the guardian ad litem acted in a grossly negligent manner in the previous suit. The negligence of the guardian in order to be a good ground for the avoidance of a decree must as has been stated before be of such character as to justify the inference that the minor's interests were not at all protected and in substance though not in form the minor went unrepresented in the trial court.
Gross negligence on the part of the guardian can be inferred from his conduct in not setting up proper defence. It will be seen from Ext. P5 series I the written statements filed in this case that the minors had a perfectly good defence. The material contentions that were raised in the written statement were firstly that the 1st defendant was not authorised to borrow any money under the karar Ext. P15 and was incompetent to burden the Swaroopam with any debts and secondly that there was no necessity for contracting these debts. It was contended that no amounts were really due to the 1st defendant and that the account book Ext. D3 relied upon by the 1st defendant to sustain his claim is not genuine and had been got up for the occasion.
17. As far as the authority for borrowing is concerned the 1st defendant was appointed as manager under Ext. P15 the karar. Ext. P15 does not contain an express authorisation for borrowing amounts so as to bind the illom. Clause 7 of Ext. P-15 is particularly significant. First defendant had to meet the expense of the Swaroopam only with the collection of the income. Therefore it is stated that the so-called advance made by the 1st defendant is absolutely beyond his powers. In this connection we may refer to Sections 10 and 11 of the Cochin Namboodiri Act XVII of 1114. Section 10 says:
'No sale, mortgage, pledge or other alienation of illom property or debt shall bind the illorn unless it is executed or made or contracted for illom necessity or it is executed or made or contracted with the written consent of the majority of all the major members of the illom when there are only major members in the illom.' Section 11 says : 'The burden of proving illom necessity shall be on the purchaser, mortgagee, pledgee or other alienee, or creditor as the case may be. But the court may presume such necessity where the majority of all the major members of the illom are parties to or have given their written consent to the transaction.'
If therefore even the rights of members of the illom to contract debts are so circumscribed and restricted an agent of theirs could not have any higher rights. Under these statutory provisions a debt will be binding on the illom only if it is incurred for illom necessity. The burden of proving such a necessity is on the creditor. The members of the illom by simply denying their liability could have put the creditor to the necessity of proving the truth of the loan and also the necessity for incurring the debt. The 1st defendant relies on Ext. D3 the account book to show the income that he had got from the estate and the amounts that he had expended for the illom.
The learned counsel for the appellants represents that there are sufficient materials on record to show that there was absolutely no necessity for the 1st defendant to advance any amount to the Swaroopam. Dw. 1 in his evidence has admitted that the annual income from the Cochin properties alone was 6000 paras of paddy and Rs. 3,000 in cash. Of the paddy income, 3000 paras are from the Medom crop. The 1st defendant assumed management just on the eve of those collections. Besides this, the illom has to get income from wet lands in direct possession.
From, the Travancore State besides Jenmikaram there was annual income of 1000 paras of paddy.
It was also pointed out that the case set up by the 1st defendant in O. S. 21/1124 was that he bad to advance money for certain extraordinary items like 'Massa' ceremony of the mother of defendants 3 and 4 and the treatment of Savithiri Antherjanam. The. swaroopam had executed 2 mortgages, Ext. P3 dated 2-11-1123, and Ext. P2 dated 2-11-1123. From the recitals of these documents it can be seen that there was a cash receipt of Rs. 2,000. These documents were executed simultaneously with the assumption of management by the 1st defendant and it is the plaintiff's case that this amount has been received by the 1st defendant.
No doubt there is no direct evidence on this matter. In Ext. D3 account book produced by the 1st defendant, we find an entry dated 6-12-1123 showing that defendants 3 and 4 have borrowed from Govinda Menon Rs. 2,000 for the Swaroopam. There is also a collection of Rs. 2,700 and odd by the 1st defendant. Dw. 1 has admitted that when he took up management there was a stock of 1000 paras of paddy. So during his period of management, it is stated that there was this 1000 paras of paddy apart from the other collections the receipt of Rs. 2,000 under Exts. P2 and P3 and another amount of Rs. 2,000 borrowed on 6-12-1123.
The Massa ceremony even according to the 1st defendant costs only Rs. 2,000. It was therefore strenuously argued that with all this income there was no need for further borrowing within the short period of two months and the so called advance of Rs. 5,250 by the 1st defendant to the illom is false and at any rate the amounts were not spent for any genuine illom necessity.
18. It was contended by the learned counsel for the 1st defendant that O. S. 21/1124 was a suit on accounts, that there was nothing to suggest that the accounts are not correct or genuine and that all the adult members had accepted the correctness of the accounts which had been put in court and they had consented to a decree being passed. It was therefore contended that in sucli a case there was no duty cast on the guardian to put up a false de-fence. The question is whether anybody had gone though the accounts and satisfied himself about the correctness of the accounts or whether there was at least prima facie proof about the correctness of the accounts.
It would be pertinent in this connection to see as to who were all the major members who could have been satisfied that the claim was true and that the compromise was beneficial to the minors and the illom. On the date of the suit the major members of the Swaroopam were defendants 3, 4, 5, 7 and the 1st plaintiff. The 1st plaintiff was admittedly an insane person and was represented by guardian. The third defendant karnavan is not possessed of normal mental faculty and the 5th defendant was also insane perhaps with lucid intervals.
We have been taken through the evidence of Pw. 1, a senior advocate of the Parur District Court and Pw. 2, the receiver appointed by the court and from their evidence, it is clear that these 2 major members could not have properly safeguarded orwere competent to safeguard the interests of the Swaroopam. The 6th defendant had only attained majority just prior to the filing of the compromise petition. The only person who, according to both the plaintiffs and the defendant, was in the know of tilings was the 4th defendant.
He was not at all interested in the compromise since the properties set apart to his share were excluded from liability and probably that was what induced him to agree to the compromise and induce others to join in the compromise petition. Then there remained only the guardian. She is an illiterate Gosha lady. She was examined as Pw. 5. She swears that she was not even aware .of the suit O. S. 21/1124 and that the only compromise that she was told about is the compromise in O. S. 90/51, the suit to remove defendants 3 and 4 from Karnavas-thanam.
It is therefore idle to contend that the adult members were all satisfied with the truth and reasonableness of the claim and that there could he no negligence on the part of the guardian in having signed the compromise petition when all the adult members had joined in the Razi petition. It was stated that the advocates appearing for the parties have also signed the compromise petition and they would not have signed if it was not beneficial to the minors.
Nothing turns on this as they act only under instruction, and they cannot be expected to know the full facts or the defences that were open to the minors. So far as the receiver joining the compromise petition, we have the admission of the receiver Pw. 2 himself that he did not even read the compromise petition before he affixed the signature and that no sanction was obtained from the court.
19. When the 1st defendant was examined as Dw. 1 in the case the plaintiffs attempted to cross examine him with reference to some of the entries contained in Ext. D3 account book. On the objections raised by the defendants the learned Judge passed order that the merits of the claim made in O. S. 21/1124 cannot be gone into and the cross-examination with regard to the merits of the claim made in O. S. 21/1124 cannot be allowed. (Vide deposition of Dw. 1). One fails to see how else the plaintiffs could prove that there was a valid defence in the suit, that the claim made is unsustainable and that the giving up of such a good defence was injurious and detrimental to the interests of the minors and the illom.
Having passed such an order and shut out the defence, it was unfair for the learned Judge to have observed in para 10 of the judgment, '1st defendant had also produced Ext. D3 account to support his claim in the above suit. Plaintiffs' next friend who is examined in this case as Pw. 4 or plaintiffs' mother who is examined as P. W, 5 is not in a position to point out any false entry or incorrect item from Ext. D3. The learned counsel appearing for the plaintiffs was also not able to point out a single circumstance which could conclusively discredit Ext. D3.' So also in para 12 it is stated 'plaintiffs have not been able to show a single circumstance' to discredit or falsify any of the entries in Ext. D3.
We do not wish to enter into the full details of the defence that would have been open to the plaintiffs or the genuineness of the loan or the account hook or the ultimate result of such a defence. Suffice it to say that prima facie it appears that the minors had a valid and proper defence and the contention that if proper defence had been put forward the claim of the 1st defendant would have been negatived is not wholly unreasonable and without foundation.
20. It was argued by the learned counsel for the appellants that the application for sanctioning the compromise should precede the compromise and that the terms of Order 32 Rules 7 C. P. C., have not been complied with. There is no force in this contention. The Supreme Court in Bishundeo V. Seo-geni Rai, AIR 1951 SC 280, has held that it is not necessary that the guardian should obtain the sanction even before he begins negotiations with the other side. Such sanction is not necessary even to enable a guardian to conclude a provisional agreement with a view to compromise.
What the section says is only that a final compromise without leave of the court and a decree passed thereon is voidable at the option of the minor. Here Ext. P5 (c) is the petition for sanction under Order 32 Rule 7 C. P. C., Ext. P17 is the order giving sanction, Ext. P12 is the compromise and Ext. P18 is the order allowing the compromise. It was argued that the court had applied its mind and granted sanction and that it should not be lightly set aside. It is also submitted that the compromise was really beneficial to the illom, that the 1st defendant agreed to suffer his costs in O. S. 120/1124, that the expenditure and trouble of a prolonged litigation was ended and peace was secured to the illom.
A compromise will be deemed to be beneficial to the interest of the minor if it secures to the minor some demonstrable advantage or averts some obvious mischief. No doubt in the face of the certificate of the court that the compromise is beneficial to the interest of the minors the onus lies on the plaintiffs to prove either fraud or collusion or that the interest of the minors was not properly safeguarded or that! the court was not informed of all the circumstances when it accorded sanction for the compromise. The Razi petition does not give any details as to how the compromise is beneficial to the minors.
It is not stated therein that even though they contested the claim and denied the genuineness of the account they subsequently examined the accounts and satisfied themselves that the defence was unsustainable. There is also no indication in the compromise petition that any thought was bestowed on this matter. So all the facts and grounds on which the permission of the court was sought for entering into the compromise were not contained in the petition and hence it is not unreasonable to think that the court would not have bestowed as much attention or thought as was necessary before according sanction.
Even if sanction is accorded that does not stand in the way of the minor getting the compromise decree set aside if the compromise is against the interests of the minors and brought about by the gross negligence- of the guardian. Here even if the case was not contested and no compromise petition hadbeen put in the same decree would have been passed. In the absence of a compromise, probably the illom would have been in a better position because by the compromise the property set apart to the 4th defendant has been completely exonerated.
If there were no compromise the minors could have called upon the 4th defendant, who had appointed the 1st defendant, to bear the proportionate snare ol the debts. So the case of the. 1st defendant that real benefit had accrued to the illom can-not be easily accepted. So also the compromise cannot be justified on the ground that it is a bona fide settlement of doubtful claims. As a matter of fact there is no compromise at all in this case. It was all a one sided affair giving up the defences that were available and suffering a decree for the entire amount claimed in the plaint with costs.
So considering all these circumstances, it could be seen that the minors had a perfectly good defence, that a defence was put up but the guardian abstained later on from adducing any evidence at the trial and gave up contesting the suit and suffered a decree to be passed by entering into a compromise. The failure on the part of the guardian to defend the suit when there was a perfectly good defence available resulting in serious loss to the plaintiffs would therefore amount to gross and culpable negligence and we have no hesitation in finding in this case that the plaintiffs have made out a case to avoid the decree. The appeal must therefore succeed.
21. In the result, the appeal is allowed, the decree and judgment of the court below are set aside and the suit is decreed as prayed for in the plaint. The appellants will have their costs both here and in the lower court from the 1st defendant.