Judgment :- Plaintiffs 1 to 3 daughters of the 7th defendant are the appellants. They filed the suit for partition claiming 3/9 shares after selling aside the assignment deed executed by the first defendant in favour of the 6th defendant. Defendants 1 to 5 are brothers and sisters of the 71h defendant. 6th defendant is a stranger to whom the first defendant had assigned rights over 16 cents of property. 2. In an earlier suit (O.S.255/80) where the plaintiffs were also parties though minors represented by their guardian the 7th defendant the schedule property in the present plaint was also included along with other properties. In that suit it was held that the property scheduled in the present plaint is not available for partition. Contention of the plaintiffs is that Ext.A-1 decree in O.S.255 of 1980 is not binding on them as their mother (7th defendant) was negligent in protecting their interest. 3.' 7th defendant has supported the case of the plaintiffs. 6th defendant filed written statement contending inter alia that the assignment in his favour from the first defendant cannot be challenged by the plaintiffs as the findings in O.S.255/80 has become final and that it is not open to them to assail the same on the ground that their guardian was not zealous in safeguarding their interests. 4. Courts below held that the plaintiffs are not entitled to any reliefs in the suit and that the property is not liable to partition. Contention of the plaintiffs is that their mother failed to show deligence and care in conducting the suit and her failure to file appeal against the decree in O.S.255/80 eloquently proclaims her utter disregard to (heir interests. 5. Admittedly plaintiffs were minors when O.S.255/80 was filed and they were represented by their guardian the 7th defendant. A minor can certainly avoid a decree against him if his guardian's conduct amounted to gross negligence in protecting his interests. The guardian is in the position of a trustee and he is bound to act strictly in the interest of the minor and must always safeguard the minor's interests in a litigation. The guardian must act in good faith i.e. with due care and caution. Whether the course adopted by the guardian was for the benefit of the minor or not is a question of fact and it depends upon the circumstances of the case. The guardian must act in good faith i.e. with due care and caution. Whether the course adopted by the guardian was for the benefit of the minor or not is a question of fact and it depends upon the circumstances of the case. It is in evidence that the judgment in O.S.255/80 was challenged in appeal by 7th defendant's brothers and sisters. It is also in evidence that the 7th defendant had filed cross-objection on behalf of the plaintiffs. The appellate court judgment in O.S.256/88 (Ext A3 ) reveals that the counsel on behalf of the guardian of the minors advanced valid contentions on their behalf. 6. It is always the duty of the guardian to protect the interests of the minors in legal proceedings with all earnestness and sincerity. Gross and culpable negligence on the part of the guardian is sufficient ground for the minor to set aside a decree against him. The right of the minor to institute such a suit is an exception to the normal rule that a decree can be set aside only on the grounds of fraud and collusion. This is based on the principle of justice, equity and good conscience. It is not every kind of negligence that enables the minors to avoid a decree against them. Negligence must be of serious nature or of such a magnitude which justifies the inference that the minors' interests were jeopardised by the acts of omission or commission by the guardian. Of course it is a dereliction of duly on the part of the guardian in not filing appeal on behalf of minors where it is really necessary. But in a case where the guardian got legal opinion that filing of appeal is a sheer exercise in futility he cannot be lambasted for not filing appeal. In Vaidyanatli v. Rambadan (AIR 1986 Pat. 183) the Court held that a minor can avoid a decree on the ground of gross negligence on the part of his guardian even in absence of proof of fraud or collusion. In case the interests of the minors were not safeguarded in a litigation by the guardian prudently the minor can certainly avoid the consequences of the litigation decided against him during his minority. But negligence of trivial nature would not be sufficient. A minor can avoid decree only on the ground of gross negligence on the part of the guardian. In case the interests of the minors were not safeguarded in a litigation by the guardian prudently the minor can certainly avoid the consequences of the litigation decided against him during his minority. But negligence of trivial nature would not be sufficient. A minor can avoid decree only on the ground of gross negligence on the part of the guardian. The Court should be satisfied that the guardian's acts of omission or commission were detrimental to the interests of the minor. 7. The plaintiffs were represented by their guardian and she had engaged a counsel to defend them. Though she did not file appeal against the decree of the trial Court she had chosen to file cross-objection and advanced necessary contentions upholding the minors' interests. There is no evidence that the guardian ceased to take any interest in the case or was grossly negligent so as to sacrifice the interests of the minors. Nor it can be said that the minors were not properly represented in the litigation or that there was any wilful or wanton neglect on the part of the guardian in prosecuting the case on behalf of the minors. In the absence of fraud or collusion on the part of the guardian or of any evidence of gross negligence on his part or want of good faith plaintiffs cannot avoid the decree in O.S.255 of 1980. 8. In Kashiram v. Balwant (AIR 1928 Nag.207) the court held: "The fact that the guardian is either negligent or careless is not sufficient reason to warrant the decree being set aside. It is necessary to establish gross negligence on the part of the guardian of a minor before a decree can be set aside, though it is not every kind of negligence nor every degree or negligence which will render proceedings otherwise regular and proper, liable to be reopened." As the evidence in the case do disclose that the guardian had taken sufficient interest in the litigation to protect the interests of the minors and as she had filed cross-objection and sincerely acted to protect their interests and as no fraud or collusion or any other adverse interest against the minors have been established it is not possible to hold that merely because she did not file separate appeal there was gross negligence on her part in safeguarding the rights of the minors. 9. 9. The guardian of the minors has to act as a trustee and should take all steps to protect their interests zealously and unflinchingly. But in a case where the guardian has really taken steps to protect the interests of the minors, merely because it proved futile one cannot jump to the conclusion that the guardian was negligent in safeguarding the interests of the minors. There is paucity of evidence to hold that the 7th defendant as guardian of the minors in O.S.255/88 failed to protect their interests or acted to their prejudice. The courts below were justified in holding that the decree in O.S.255/80 is valid and binding on the plaintiffs and hence they are not entitled to claim partition of the plaint schedule property which was found not available for partition in the former suit. There is no merit in the Second Appeal. Second Appeal is dismissed. No costs.