The appointment of a guardian ad litem with adverse interests is voidable, and notice should be given to all parties before a final decree. If the minor proves adverse interests, the proceedings can be set aside.

1. This is an appeal against the dismissal of an application by the appellant to set aside an ex-parte final decree passed in a mortgage suit. The present appellant was a minor at the date of the institution of the mortgage suit. His father was appointed his guardian ad litem, the father being the executant of the mortgage bond. Some defences were raised by the father and a preliminary decree was passed. After the passing of, the preliminary decree, the present appellant became a major, but it does not appear that any notice went to him before the final decree was passed. The petitioner appellant applied to the Subordinate Judge to set aside the ex-parte final decree on the ground that he was not served with notice, and that his father, whose interests were adverse to him and ought not to have been appointed his guardian, did not properly represent him when the preliminary decree was passed and that certain defences which were set out in his petition and which ought to have been raised by the father were not raised. The Subordinate Judge dismissed the application on the ground that no notice was necessary before the final decree was passed, that as the notice went to his father he was sufficiently represented when the final decree was passed, that the fact that he became major would make no difference and that it was his duty, if he thought fit, to bring himself on the record as a major and vacate the order appointing his father as guardian. He dismissed the application on these grounds without allowing the petitioner to adduce evidence to show that he was not properly represented by his father being appointed guardian owing to the fathers adverse interests. It is argued by Mr. Muthukrishna Ayyar for the appellant relying on the authority, of Sellappa Goundan v. Masa Naicker A.I.R. 1924 Mad. 297, that the appointment of the father whose interests as executant must presumably be adverse to the interests of the minor son was absolutely void and consequently that he was not represented throughout these proceedings. Reference was also made to Kanakasundaram Pillai v. Somasundaram Pillai [1918] 35 M.L.J. 375 and Bibi Tasliman v. Harihar Mahto [1905] 32 Cal. 253, to show that notice was necessary to him before decree absolute could be passed on the application of the plaintiff who obtained decree nisi.

2. It is argued by Mr. T.M. Krishnaswami Ayyar for the respondent who relies on the decision in Kuppuswami Ayyangar v. Kamalammal [1920] 43 Mad. 842 that the appointment of a person whose interests are adverse to that of the minor is only an irregularity which renders the proceedings subsequently passed by the Court voidable and not void and that it was the duty of the appellant the moment he attained majority to have come to Court and got the order appointing his father vacated and got permission to conduct further proceedings. We think that if a plaintiff having obtained a preliminary decree wants a final decree to be passed he should give notice to all the parties. It is open to him at any time after the preliminary decree within the period of limitation to ask for a final decree but as no date is fixed when the preliminary decree is passed for passing the final decree, there is no opportunity for the parties to know when the plaintiff would apply for a final decree. Following the decisions in Kanakasundaram Pillai v. Somasundaram Pillai and Bibi Tasliman v. Harihar Mahto we think that notice has to be given.

3. The next question is whether the notice given to the father is sufficient notice. This again depends on whether the appointment of the father as guardian ad litem is absolutely void, or is only voidable. We think that in cases where a person contests the validity of the appointment of a guardian ad litem on the ground that his interests are adverse and where there is no express prohibition in law as to the appointment of a person except on the ground that his interests are adverse, the party must prove that the facts