Judgment :- 1. Defendants 1 and 2 are the appellants. The suit is for declaration of the plaintiffs title to the plaint properties and for recovery of possession of the same with mesne profits. According to the plaintiff, the plaint schedule properties belong to him. They were purchased in his name, while he was a minor, by his paternal grand-father. Ext. A dated 15.8.1103 is the sale deed. It is alleged that the consideration for the sale deed was advanced by the maternal grand-father of the plaintiff. The properties were at that time outstanding on a mortgage. The mortgage right also was subsequently taken assignment of in the name of the plaintiff. On 18.2.1104 the plaintiff's father and paternal grand-father together executed a hypothecation bond, Ext. B, in respect of the plaint properties in favour of the father of defendants 2 to 8 stating that the properties belonged to them and that they have been acquired with their own funds in the name of the plaintiff. Plaintiff alleges that the executants of Ext. B had no right in the properties and that they were not competent to hypothecate the same. On the basis of the hypothecation bond, the father of defendants 1 to 6 instituted O.S. No. 166 of 1105 of the Quilon District Court and obtained a decree. In execution of the decree the plaint properties were sold in auction of 6.3.1111 and purchased by the decree-holder. Ext. I is the sale certificate. He obtained delivery of possession of the properties through court on 20.3.1112. Ext. IV is the delivery kychit. The plaintiff was impleaded as third defendant in O.S. No. 166 of 1105. His paternal grand-father was the first defendant and father the second defendant. Father was his guardian for the suit. It is alleged that his father did not accept the guardianship, that he was not a proper guardian for the suit, that he did not contest the suit on his behalf, that he (plaintiff) was not legally represented in the suit and that the decree and execution proceedings are null and void so far as he is concerned. It is also alleged that the plaintiff was under the guardianship of his maternal grand-father. It is also alleged that the plaintiff was under the guardianship of his maternal grand-father. Plaintiff brought the suit for a declaration of his title to the plaint properties and for recovery of possession of the same with mesne profits at the rate of 150 paras of paddy per year and also for a declaration that the hypothecation bond dated 18.2.1104 is not valid and binding on the plaintiff and that the decree and execution proceedings in O.S. No. 166 of 1105 are null and void so far as he is concerned. The decree-holder-auction-purchaser in O.S. No.166 of 1105 is dead, and his legal representatives are defendants 1 to 8. The 9th defendant is the father of the plaintiff. 2. Defendants 1 and 2 alone contested the suit. They contended as follows: The plaint schedule properties were purchased in the name of the plaintiff benami for the plaintiff's father and paternal grand-father and the properties really belonged to them. They were, therefore, competent to hypothecate the properties in favour of the father of defendants 1 to 8. Plaintiff had no right to the properties. The decree and execution proceedings in O. S. No. 166 of 1105 are valid and are not liable to be set aside. The suit is barred by res judicata and by limitation. The mesne profits of the properties would not be more than 115 paras of paddy per annum. Defendants 1 to 8 were only the trustees of their father and they are, therefore, not personally liable for any of the reliefs claimed in the plaint. 3. The court below held that the sale deed, Ext. A, was taken for the benefit of the plaintiff, that it was not taken in his name benami for his father and grand-father, and that the plaintiff was the absolute owner of the plaint properties. It was, therefore, held that the plaintiff's father and paternal grand-father were not competent to execute the hypothecation bond. Ext. B, in favour of the father of defendants 1 to 8. It was, therefore, held that the plaintiff's father and paternal grand-father were not competent to execute the hypothecation bond. Ext. B, in favour of the father of defendants 1 to 8. It was also held that the plaintiff was not legally represented in the suit in O.S. No. 166 of 1105, that the plaintiff's father had refused to act as his guardian for the suit, that the father was not qualified to be the guardian for the suit, since his interests were adverse to those of the plaintiff, that the father did not contest the suit on behalf of the plaintiff and that the decree and sale in the case are null and void so far as the plaintiff is concerned. On the basis of this finding, it was held that the suit instituted within twelve years from the date of dispossession of property was not barred by limitation. The plea of res judicata was also found against. Plaintiff was accordingly allowed to recover possession of the properties with mesne profits at the rate of 115 paras of paddy per annum. 4. The points urged in the appeal are: (1) The Court below went wrong in holding that the decree in O.S. No. 166 of 1105 is null and void so far as the plaintiff is concerned. It was contended that the decree was only voidable. (2) The suit is barred under Art. 9 of the Travancore Limitation Act. (3) The suit is barred by res judicata. (4) Ext. A sale deed was taken in the name of the plaintiff benami for his father and grand-father. (5) The court below went wrong in valuing paddy at the nirak rate prevailing on the date of suit. 5. The respondent filed a memorandum of objection claiming mesne profits at the rate of 150 paras of paddy per annum. The court below did not allow mesne profits from the date of suit. Objection was taken to that also. Interest was claimed on mesne profits at the rate of 6 per cent per annum. 6. We shall consider each of the points urged in the appeal. The first and the most important point relates to the question whether the decree in O.S. No.166 of 1105 is void so far as the plaintiff is concerned. Interest was claimed on mesne profits at the rate of 6 per cent per annum. 6. We shall consider each of the points urged in the appeal. The first and the most important point relates to the question whether the decree in O.S. No.166 of 1105 is void so far as the plaintiff is concerned. That depends on the further question whether the plaintiff who was the third defendant in that case was legally represented in the suit. As stated already, his father who was the second defendant was his guardian for the suit. Plaintiff's case is that he was under the guardianship of his maternal grand-father and that his father was not competent to act as his guardian and had also not consented to act as guardian. The question whether the plaintiff was really under the guardianship of his father or of his maternal grand-father is not relevant for the purpose of this case. The only relevant question is whether his father was properly appointed as his guardian for the suit. His father and grand-father had executed Ext. B hypothecation bond stating that the properties belonged to them although the sale deed was taken in the name of the plaintiff. The suit was instituted on the basis that the properties belonged to them. It is, therefore, clear that the interest of the father was adverse to that of the plaintiff. The real question to be decided in the suit was whether the properties hypothecated belonged to the plaintiff or to his father and grand-father. 7. 0.32 R.4(1) provides: "Any person who is of sound mind and has attained majority may act as next-friend of a minor or as his guardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next-friend, a defendant, or, in the case of a guardian for the suit, a plaintiff". Sub-r. (3) provides: "No person shall without his consent be appointed guardian for the suit". It is clear from the above provisions that a person whose interest is adverse to that of a minor cannot be appointed as the guardian for the suit of the minor. Sub-r. (3) provides: "No person shall without his consent be appointed guardian for the suit". It is clear from the above provisions that a person whose interest is adverse to that of a minor cannot be appointed as the guardian for the suit of the minor. According to learned counsel for the appellants, the appointment of any such person as guardian for the suit is only an irregularity and will not make the decree a nullity so far as the minor is concerned and that the decree will be only voidable at the instance of the minor. According to learned counsel for the respondent, the decree in such a case will be a nullity so far as the minor is concerned since the minor cannot be said to have been represented in the suit at all. We are inclined to accept the latter view. That was the view taken by the Privy Council in Rashid-un-nisa v. Mohomed Ismail Khan (31 Allahabad 572 P.C.). Their Lordships of the Privy Council held in that case that when the person who was appointed guardian for the suit of a minor defendant was one whose interest was adverse to that of the minor it could not be said that the minor was properly represented in the suit. It was held that the minor was not a party to the suit in the proper sense of the term. This decision was followed by the Madras High Court in Sellappa Goundan v. Masa Naicken (1924 Mad. 297). Odgers, J. held in that case that: "a minor represented by a guardian whose interest is adverse is not legally represented at all". Hughes, J. Observed: "The appointment of a guardian whose interests were adverse gives no legal representation at all and the decision obtained in such proceedings in null and void". The same view was taken by the Madras High Court in Parameswaran Pillai v. Venkitachalam Chetty (1935 Mad. W.N. 1109). 8. In Radha Shyam v. Firm Gopal Rai (1937 All. 374), Naiamathullah, J. held that a decree passed against a minor in a suit in which a person whose interest was adverse to that of the minor was appointed his guardian for the suit was a nullity so far as the minor was concerned. W.N. 1109). 8. In Radha Shyam v. Firm Gopal Rai (1937 All. 374), Naiamathullah, J. held that a decree passed against a minor in a suit in which a person whose interest was adverse to that of the minor was appointed his guardian for the suit was a nullity so far as the minor was concerned. The learned judge quoted with approval the following observation in an earlier decision of the Allahabad High Court, viz., Hanuman Prasad v. Mohamed Ishaq (28 All. 137): "The provisions of S.443, C.P.C. as to the appointment of a guardian ad litem for a minor defendant are imperative and where these provisions are not substantially complied with the minor is not properly represented and any decree which may be passed against him is a nullity", To the same effect is the decision of the Rangoon High Court in Chettiar Firm v. M.C. Shwe Humm (138 Rangoon 468). 9. Learned counsel for the appellants relied on two decisions of the Madras High Court in support of his position, i.e., Venkitasomeshwara Rao v. Lakshmanaswamy (1929 Mad. 219 F.B.) and Krishnamoorthy v. Imperial Bank of India (1936 Mad. 618), and also on the decision of the Travancore High Court in Gourikutty Amma v. Kerala Varma Raja (21 TLJ 571). The first case was referred to the Full Bench by Kumaraswamy Sastri and Devadoss, JJ. In the order of the reference Kumaraswamy Sastri, J. expressed the view that if a minor is represented in a suit by a guardian whose interests are adverse to those of the minor the decree would be a nullity so far as the minor is concerned. Devadoss, J. did not agree with this view. According to him the decree would be only voidable. The answer given by the Full Bench to the question was to the following effect: "In our opinion it would be premature to decide this as an abstract question of law without a finding on a decision of fact directed to the express point that the interests of the guardian ad litem were adverse to those of the minor. At present all we have is the fact that the court appointed her, which is prima facie a judicial expression of opinion that her interests were not adverse. At present all we have is the fact that the court appointed her, which is prima facie a judicial expression of opinion that her interests were not adverse. The learned judge, we presume, was aware of, or his attention was drawn to, the provisions of 0.32 R.3, and he must have known the sole fact which is placed before us, namely that the proposed guardian ad litem was herself the executant of the document. It may be that he failed to exercise a judicial discretion in coming to the conclusion that it was a proper step to appoint her, and that an appellate court might have so found it invoked on the ground that on the materials before the learned judge who appointed her there was everything to show that she was unfit and nothing to show that she was fit. That has not been done. In these circumstances we cannot see our way to answer the second question anything more than the first as involving the same point of law". The first question referred to the Full Bench was this: "When a person has executed a document or entered into a transaction on behalf of a minor as his guardian can that same person be validly appointed guardian ad litem of the minor in a suit brought against him on the document or transaction in question". The opinion given by the Full Bench on that question was as follows: "It seems to us that this matter cannot be treated as a pure question of law. The appointment of the guardian ad litem purported to be an exercise of judicial discretion and it seems to us impossible to say that the court had no discretion in any conceivable case to appoint such a person and that such an appointment would necessarily be void without any enquiry into the particular circumstances of the case. In our opinion that is a question of fact governed by no hard and fast rule of law and there is nothing neither in the Code or in any of the authorities to lay down not merely that such a person should not as a rule be appointed but cannot in any circumstances be validly appointed". In our opinion that is a question of fact governed by no hard and fast rule of law and there is nothing neither in the Code or in any of the authorities to lay down not merely that such a person should not as a rule be appointed but cannot in any circumstances be validly appointed". We do not think that this decision can be regarded as an authority for the position that when a minor defendant is represented in a suit by a guardian whose interests are adverse to those of the minor the decree is not void but is only voidable so far as the minor is concerned. 10. The point that was decided in 1936 Mad. 618 was that the validity of a decree passed against a minor cannot be challenged in execution on the ground that the interests of the guardian ad litem of the minor were adverse to those of the minor. The question whether the decree would be void so far as the minor is concerned was not decided in that case. This is clear from the following observation of Venkitasubba Rao, J: "The question, however, is, Is the decree a nullity in the sense that objection can be taken in the execution court? For the purpose of the Limitation Act there is distinction between a void and a voidable decree. The natural effect of holding that the decree is void and not voidable is that it need not be set aside within the prescribed period. But because a decree is null and void it does not necessarily follow that the question can be gone into in execution". 11. What was held in 21 T.L.J. 571 is that merely because the person who was appointed guardian ad litem for the minor was one of the parties who executed the document on which the suit was based it could not be held that his interests were adverse to those of the minor within the meaning of 0.32, R.4, C.P.C., so as to make the decree a nullity. The learned judges would seem to have proceeded on the basis that if the interests of the guardian were really adverse to those of the minor the decree would be nullity so far as the minor is concerned. This decision also is, therefore, not an authority for the position contended for on behalf of the appellants. 12. The learned judges would seem to have proceeded on the basis that if the interests of the guardian were really adverse to those of the minor the decree would be nullity so far as the minor is concerned. This decision also is, therefore, not an authority for the position contended for on behalf of the appellants. 12. The provision contained in 0.32, R.4(1) that no person whose interest is adverse to that of the minor should be appointed his guardian for the suit is a mandatory provision, and if such a person is appointed guardian it cannot be said that the appointment was made according to law. It is clear that in this case the plaintiff's father was incompetent to act as his guardian for the suit in O.S. No. 166 of 1105 and that his appointment as guardian was against the express provision of law. It has, therefore, to be taken that the minor was not properly represented in the suit. If there was no proper guardian for the suit for the minor the minor must be deemed to have been no party to the suit as was held by the Privy Council in 31 All. 572. The decree must, therefore, be regarded as a nullity so far as the minor is concerned. 13. It was also contended on behalf of the respondent that a guardian ad litem was not actually appointed by the court for the minor third defendant in O.S. No. 166 of 1105 and that it was only stated in the plaint that the second defendant was the guardian of the minor third defendant. Ext. C is the copy of the plaint. The third defendant was thus described in the plaint: There is nothing to show that an application was made by the plaintiff in the case for appointing the second defendant as the guardian for the suit of the minor third defendant and that there was an order by the court appointing him as guardian. Whatever that may be, it is seen from Ext. D (the copy of the written statement filed by defendants 1 and 2 in O.S. No. 166 of 1105) that the second defendant refused to act as guardian of the minor third defendant. This is what is stated in paragraph 15 of the written statement : The 12th defendant was the maternal grand-father of the minor. D (the copy of the written statement filed by defendants 1 and 2 in O.S. No. 166 of 1105) that the second defendant refused to act as guardian of the minor third defendant. This is what is stated in paragraph 15 of the written statement : The 12th defendant was the maternal grand-father of the minor. This statement amounts to an expression of unwillingness on the part of the second defendant to act as the guardian of the minor third defendant. 0. 32, R. 4(3) provides that no person shall without his consent be appointed guardian for the suit. It is true that the consent need not be express. The consent may be implied from the circumstances of the case. But, in a case in which the proposed guardian has expressed his unwillingness to be the guardian for the suit it is the duty of the court to appoint another person as guardian, and if the suit is allowed to proceed against the minor without another person being appointed as his guardian for the suit, it cannot be said that the minor has been represented in the suit (vide Velayudha Panicker v. Kochu Pillai 21 T.L.J. 208, and Mathen v. Ismail 1943 T.L.R. 444 the first being a decision by a Full Bench of three judges and the second by a Special Bench of five Judges). Thus, in any view of the case, the decree in O.S. No. 166 of 1105 must be regarded as a nullity so far as the present plaintiff is concerned. If the decree is a nullity the court sale based on it must also be regarded as void. 14. The second point urged in the appeal, viz., whether the suit is barred under Art.9 of the Travancore Limitation Act, has also to be decided in favour of the respondent on the basis of the decision on the first point. If the decree and the court sale are void the plaintiff is not bound to sue for setting aside the sale. He can institute the suit for recovery of possession of the property within twelve years from the date of dispossession. There is therefore no scope for the applicability of Art. 9 of the Travancore Limitation Act. The prayer in the plaint is only for a declaration that the decree and the execution proceedings in O.S. No. 166 of 1105 are void. 15. There is therefore no scope for the applicability of Art. 9 of the Travancore Limitation Act. The prayer in the plaint is only for a declaration that the decree and the execution proceedings in O.S. No. 166 of 1105 are void. 15. The third contention raised on behalf of the appellants is that the suit is barred by res judicata by reason of the decision in O.S. No. 166 of 1105. So long as the present plaintiff should be deemed to have been no party to the suit in O.S. 166 of 1105 there can be no question of res judicata so far as he is concerned by reason of the decision in that suit. This suit is for a declaration that the decree in that case is a nullity so far as the plaintiff is concerned. It is true that defendants 1 and 2 in that case contended in their written statement that items 3 to 9 included in the hypothecation bond belonged to the minor third defendant (present plaintiff). But such a contention was not raised on behalf of the minor. Therefore, the contention was not taken note of by the court and was not considered in the judgment (vide Ext. E). In any view of the case it cannot be said the judgment in O.S. No. 166 of 1105 will operate as res judicata against the present plaintiff on the question of his title to the plaint properties. 16. The further question for consideration is whether the sale deed, Ext. A, was taken in the name of the plaintiff benami for his father and grand-father as contended by the defendants. It is expressly stated in Ext. A that the sale deed was taken for and on behalf of the plaintiff. His paternal grand-father only acted as his guardian. There is absolutely no evidence in the case to show that Ext. A was taken in the name of the plaintiff benami for his father and grand-father. His father did not figure in the document even as his guardian. Plaintiff's case is that the consideration for the sale deed was advanced by his maternal grand-father who is now dead. The maternal grand-father had no male children and, according to the plaintiff, he purchased the properties for the benefit of the plaintiff. Pw. 3 is one of the executants of Ext. Plaintiff's case is that the consideration for the sale deed was advanced by his maternal grand-father who is now dead. The maternal grand-father had no male children and, according to the plaintiff, he purchased the properties for the benefit of the plaintiff. Pw. 3 is one of the executants of Ext. A. He swears that the consideration for the document was given by the plaintiff's maternal grand-father. He further swears that at the time of the execution of Ext. A the properties were outstanding on a mortgage and that the plaintiff's maternal grand-father took an assignment of the mortgage also in the name of the plaintiff with his own funds. Pw. 2 is an attestor to Ext. A. He also swears that the consideration for the sale deed was paid by the plaintiff's maternal grand-father. The court below believed these witnesses, and we also find no reason to disbelieve them. The defendants rely on the statement made by the plaintiff's father and paternal grand-father in the hypothecation bond that the properties were purchased in the name of the plaintiff benami for them with money advanced from their trade. We do not think that any value can be attached to that statement. It was necessary for them to say that the properties belonged to them so that they might hypothecate them for their own debts. These same persons stated in Ext. D written statement that the properties belonged to the plaintiff. Even assuming that the consideration for the sale deed, Ext. A, was advanced by the father and grand-father, so long as there is nothing to show that it was a benami transaction there is no reason why the sale deed should enure to the benefit of the plaintiff for whose benefit it purports to have been taken. There is no explanation why the plaintiff's father and grand-father should take a benami document in the name of the plaintiff. The defendants have no case that they had liabilities at the time of the execution of the sale deed and that it was to screen the properties from their creditors that the document was taken in the name of the plaintiff. There is, therefore, no reason to hold that Ext. A was taken in the name of the plaintiff benami for his father and paternal grand-father. There is, therefore, no reason to hold that Ext. A was taken in the name of the plaintiff benami for his father and paternal grand-father. It follows from this that the plaintiff is the owner of the properties and that he is entitled to recover possession of the same from the defendants. 17. The last point urged in the appeal relates to price of paddy. The court below directed that paddy should be valued at the nirak rate prevailing on the date of the suit. As decided recently by the Full Bench of this court paddy will have to be valued at the nirak rates prevailing on the respective due dates. Paddy will accordingly be valued on the nirak rates prevailing on the respective dates on which it became payable. 18. As for the grounds raised in the objection memorandum we find no reason to enhance the quantum of mesne profits from 115 paras a year to 150 paras a year claimed in the plaint. There is no reliable evidence in the case relating to mesne profits. The court below was therefore justified in awarding as mesne profits only 115 paras of paddy a year which was admitted by the defendants. The further question is whether the plaintiff should not be allowed future mesne profits from the date of suit. So long as the plaintiff is awarded past mesne profits and has also been allowed to recover possession of the properties there is no reason why he should not be allowed future mesne profits from the date of suit. It is true that there is no specific prayer in the plaint for mesne profits from the date of suit. But, that is clearly an omission. We hold that the plaintiff is entitled to get future mesne profits from the date of suit at the rate of 115 paras of paddy per year. Interest will be awarded on mesne profits at the rate at 6 per cent per annum. The objection memorandum is allowed to the above extent. 19. In the result, the judgment and decree of the court below are modified to the extent mentioned above. Subject to those modifications the judgment and decree are confirmed and the appeal is dismissed with costs. Decree modified.