( 1 ) THE point that has been referred to us for decision is :

"whether a decree obtained against a minor is void because the guardian appointed by the Court had been guilty of gross negligence or is it merely voidable?"

( 2 ) THE reference was made by reason of the fact that there was a difference of opinion on the point between the Oudh Chief Court and the Allahabad High Court before its amalgamation. In mohammad Baksh v. Allah Din, 17 Luck. 1: (A. I. R. (29) 1942 Oudh 33) a Bench of the Oudh chief Court -- Bennett and Madeley JJ.-- had held that such a decree was merely voidable at the option of the minor; while in Dwarika Halwai v. Sitla Prasad, I. L. R. (1940) ALL. 344; (A. I. R. (27) 1940 ALI. 256), Bennet and Verma JJ. had held that the decree was null and void. Both. the decisions were, however, said to be based on a Full Bench decision of this Court in Mt. Siraj fatma v. Mahmud Ali, 54 ALL. 646 : (A. I. R. (19) 1932 ALL. 293 F. B. ).

( 3 ) THE point for consideration before the Full Bench in Mt. Siraj Fatma, v. Mahmud Ali, (54 all. 646 : A. I. R. (19) 1932 ALL. 293 F. B.) was whether a minor had a right to institute a suit in the civil Court to avoid a decree or order passed by a competent Court against him on the ground of negligence of his guardian. The question whether such a decree was void or voidable did not directly arise. The Full Bench was of the opinion that a minor had a right to file a suit in the civil Court to avoid such a decree. Certain observations in the judgment of Sulaiman J. were relied upon by Bennet and Verma 33. , while certain other observations In the same judgment were relied upon by Bennett and Madeley JJ. of Lucknow.

( 4 ) THE question whether the minor has a right to file such a suit is not for consideration before us and we need not, therefore, express any opinion on the point. The view of Calcutta, Madras, lahore and Patna High Courts is that such, a suit is maintainable, while the Bombay High Court has held to the contrary. (See Mahesh Chandra v. Manindra Nath, I. L. R. (1941) 1 Cal. 477 : (A. I. R. (28) 1941 Cal. 401); Egappa Chettiar v. Ramanathan Chettiar, I. L. R. (1942) Mad. 526 : (A. I. R. (29) 1942 Mad. 384); Iftikhar Hussain Khan v. Beant Singh, I. L. R. (1946) Lah. 515: (A. I. R. (33) 1946 Lah. , 233 F. B.); Kamakshya Narain Singh v. Baldeo Sahai, A. I. R. (37)1950 pat. 97 : (27 Pat. 441 F. B); and Krishnadas Padmanabhrao v. Vithoba Annappa, I. L. R. (1939) Bom. 340: (A. I. R. (26) 1939 Bom. 66 F. B. ). The Bombay High Court took the view that a plaintiff after he had got a proper person appointed as guardian-ad-litem of the minor defendant could not be held responsible for the failure of the guardian ad litem to perform his duty and the anxiety of the Courts to protect an infant who cannot protect himself at the expense of finality in suits against infants was to be deprecated. It was pointed out by the learned Judges that in venkata Seshayya v. Kotiswara Rao, 64 I. A. 17 : (A. I. R. (24) 1937 P. C. 1) their Lordships of the Judicial Committee had held that Section 44, Evidence Act could not be extended to cases of gross negligence and that the provisions of Section 11, Civil P. C. were mandatory. Section 44, evidence Act I [1] of 1872) is as follows :

"any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. "

Their Lordships of the Judicial Committee pointed out that Section 44, Evidence Act, defined with precision the grounds of such avoidance as fraud or collusion, and that negligence or gross negligence could not amount to fraud unless fraud or collusion was the proper inference from the facts. The other High Courts have, however, taken the view that the guardian of a minor is a trustee for the minor and he is under an obligation to look after the best