MEREDITH, J.- The question which has been referred to this Full Bench is:

"Can a minor avoid a decree passed against him on the ground of gross negligence on the part of his guardian-ad-litem by bringing a subsequent suit even if he has not succeeded in proving fraud or collusion on the part of such guardian."

2. I understand that the case in which this reference has been made was one of alleged negligence on the part of the minor plaintiffs next friend, and I presume. therefore, that an answer is required both as regards a person who alleges gross negligence on the part of his next friend when he was a minor plaintiff and as regards a person who alleges gross negligence on the part of his guardian-ad-litem when he was a minor defendant.

3. In a recent case decided by Agarwala C. J. and myself (second Appeal No. 7 of 1946 decided on 4th January 1948) I said:

"It may be taken as well settled, so far as this Court is concerned, that the minor can avoid the decree if he was not effectively represented in the suit, and where there is gross negligence on the part of the guardian he cannot be said to have been effectively represented." Having regard to the fact that learned counsel have been arguing before us on this question for the best part of three days, this statement must be characterized as somewhat optimistic. Nevertheless I do not think it is incorrect to say that until recently the question was regarded as set. tied in this Court.

4. In Ganganand Singh v Rameshwar Singh, 6 Pat.388: (AIR (14) 1927 Pat. 271), decided in 1927, Das and Adami JJ, held that even where a minor is represented by a guardian-ad-litem not disqualified from so acting, he can in a subsequent suit impeach the decree passed in the previous suit on the ground that there was gross negligence on the part of the guardian.

5. In 1934 Fazl Ali and James J. in Kali Charan Singh v. Hirdai Narain, AIR (22) 1935 Pat. 24: (154 I.C. 948), observed: "It is now well settled that gross negligence, which- may be interpreted as culpable neglect of the interest. of a minor defendant on the part of his guardian-ad]item, will entitle the minor to the avoidance of proceedings undertaken against him."

6. In 1935, in Mathura Singh v. Rama. Rudra Prasad Sinha, 14 rat, 824: (AIR (23) 1936 rat.231), Khaja Mohamed Noor and Dhavle JJ. held that a minor can avoid a decree, passed against him on account of the gross- negligence of his guardian. Gross negligence, they held, amounts to fraud and affects the proper representation of the minor and thus takes, away the jurisdiction of the Court to pass a decree.

7. In 1944, in Madhusudan v. Jogindra, 23 Pat. 640: (AIR (32) 1945 Pat.133). Fazi Ali C.J., and Manohar Lall J. held that where a minor is properly a party to a suit, that is to say, is represented by a guardian not disqualified from acting, the jurisdiction of the Court to try and determine the cause as against the minor is complete and cannot be ousted on proof that the Court did not follow the proper procedure for the appointment of the guardian.. Where, however, the minor suffers, the matter is different, and at his instance a decree against, him in such action may be set aside.

8. Up to 1947 there was, so far as I am. aware, no reported case of this High Court in which a contrary view was taken. There was., however, in 1944 a case decided by Fazl Ali C.J.. and Reuben J. (unreported); First Appeal No.163 of 1941, in which Reuben J. in the course of the judgment referred to the remarks of Lord Thankerton in T. Venkata Seshayya v. T. Kotiswara Rao, 64 I.A. 17 : (AIR (24) 1937 P.C. 1), and then said:

"Here all that is alleged against the guardian-ad-litem is gross negligence. This is obviously insufficient to entitle the appellant to claim the protection of S.44, Evidence Act."

Gross negligence had been alleged, but it was held that the decision in the previous suit operated as res judicata nevertheless.

9. During the year 1947, the question came before Benches of this Court in two