Leonard Stone Kt., C.J.
1. This appeal, which is from the First Class Subordinate Judge of Nasik, raises a short point, but one which is not free from difficulty.
2. The appeal is against the dismissal of the appellant's application for probate of the will of his daughter Lilabai.
3. Lilabai was born on June 3, 1916, and the question is whether before she attained the age of eighteen on June 2, 1934, a guardian of her person or property had been appointed pursuant to the Guardians and Wards Act, 1890. If so, then her will dated February 28, 1936, would be of no effect, as under Section 3 of the Indian Majority Act, 1875, she would not attain her majority until twenty-one, and as a minor she would be incapable of executing a valid testamentary disposition. On the other hand, if no guardian was in fact appointed or declared, she would attain her majority at eighteen and her will would be a valid disposition of her property.
4. At all material times Lilabai's only property consisted of Rs. 10,000 payable under an insurance policy on the life of her husband who had previously died.
5. On February 15, 1932, the appellant applied to the District Court at Nasik to be appointed her guardian for the very purpose of being able to give an effectual receipt to the insurance company. On April 24, 1933, the following order was made by the District Judge on that application:
The applicant, father, is appointed guardian of his minor daughter's property on his furnishing security in the amount of the insurance policy.
6. In fact the appellant was unable to find the necessary security, with the result that on April 10, 1935, the District Judge made the following order:
The father of the minor girl who was appointed guardian of her property has stated that he is unable to furnish security in the amount of the property. Therefore the order is cancelled and I appoint the Deputy Nazir as guardian of the property of the minor.
7. But the crucial date was past, for Lilabai had completed her eighteenth year. The point for decision rests on whether the order of April 24, 1933, operated to appoint the appellant as guardian of Lilabai's property. This question is not without authority in the English and Indian Courts, and in approaching it assistance is to be gained by considering the origin of the form of order which was in fact made. The Courts of Chancery in England have been accustomed to require security in certain cases from those to whom the collection of other people's money is entrusted.
8. Forms Nos. 3 and 5 in Seton's 'Judgments and Orders,' 7th edn., Vol. I, pp. 726-727, should be compared. Form No. 3, which bears striking similarity to the form of the order of April 24, 1933, in this case, is headed : 'Order appointing receiver by name (upon giving security) of Real and Personal estate,' and is as follows : 'This Court (or the Judge) doth order that A of etc., be appointed upon giving security to receive etc..' Form No. 5 is headed : 'Order appointing Receiver by name, and to act before security given,' and the form is as follows:
This Court doth hereby appoint A of etc., to receive etc...; And it is ordered that the said A do, on or before the...day of...19...give security as such receiver to the satisfaction of the Judge....
Whereas Form No. 5 is immediately operative, an order drawn in the terms of Form No. 3 needs a subsequent order of the Court which is to be found at p. 726 and is Form No. 4, and is as follows:
Upon the application by summons, dated etc., of etc., And A, hereafter named, having given security by entering into a recognizance dated etc., and a bond of the same date, together with etc., as his sureties, which has been approved by the Judge and duly filed. The Judge doth, pursuant to the said order dated etc., hereby appoint A of etc., to receive....
9. The operation of an order drawn up in form No. 3 was considered in 1876 in Edwards v. Edwards (1876) 2 Ch. D. 291. As appears from the argument of counsel in that case that the 3rd Edition of Seton, which was current in the year 1876, also contained the two alternative types of order, i.e. in the one case the appointment being made upon giving security and being implemented by a second order, and in the other there being one order only. The question, which arose in Edwards v. Edwards, was whether it was contempt of Court to levy execution upon certain chattels with regard to which the Court had appointed a receiver 'upon his giving security', and at p. 296 Lord Justice James said as follows:
A receiver becomes such on giving security. When he has done that, he can take possession. It would be very serious to hold that he can take possession before giving security. There is no reason to depart from the plain meaning of the words of the order, which appoints him receiver conditionally on his giving security. The case is the same in substance as that before Vice-Chancellor Kindersley. In that case there were two orders, here there is only one; in that case the appointment dates from the second order, and in this case from the certificate that, the condition of giving security has been complied with. I am of opinion, therefore, that no contempt has been committed, that the execution creditor is right, and that the order of the Vice-Chancellor must he reversed.
10. Ex parte Evans : In re Watkins (1879) 13 Ch. D. 252 is an authority for the proposition that in the case of a receiver of land where the security is subsequently completed there is a relation back to the date when the order was made. At p. 260 Lord Justice Thesiger observed:
With regard to the other point, it appears to me that the giving of security by the person appointed receiver, although it formed part of the order, and was necessary to make it complete, was not one of the elements essential to render the order equivalent to a delivery of the land in execution. It appears to me that as soon as the order was made appointing a receiver it bound the land, in accordance with the decisions which have been cited,, and that if the order was afterwards perfected by the receiver's giving security, it would relate back to the date when it was made.
11. The relevant rules, of this Court are set out in the Civil Manual, 1940 Edition, Vol. I, Ch. XXIV, pp. 254-255, Rules 5, 6 and 7 and are as follows:
5 The guardian appointed or declared shall in all cases be required to furnish security in Form C unless the Court for reasons to be recorded dispenses with such security.
6 Upon the appointment or declaration of a guardian a certificate of guardianship shall be furnished in Form D. But where security is required the certificate shall not issue until the security is furnished.
7 When security is required the Court shall fix a time within which such security shall be furnished. And the order of appointment or declaration shall be made conditional on the furnishing of this security.
Turning to the forms which are in Vol. II of the same edition of the Civil Manual at pages 446 and 448, it will be found that Form C is 'Bond to be given by the Guardian of the property of a Ward,' and it commences:
In the matter of the guardianship of.minor. Whereas I.inhabitant of...have been appointed by the said Court guardian of the property of.under the Guardians and Wards Act, 1890; I...hereby bind myself..
Form 'D' is called 'Certificate of Guardianship,' and this is headed : 'In the matter of guardianship...of...minor.
And it proceeds as follows:
You...are declared/appointed guardian of the.of the minor.under Section 7 of Act VIII of 1890 and the points which you should particularly note are printed on the reverse.
The form then goes on to provide the amount which is to be spent each month for maintenance of the minor expressed in mandatory form in the words 'shall be paid to you out of the estate of the minor until further order.' Then it is provided : 'A sum of Rs....is allowed for costs of the application and will be paid to you out of the estate of the minor.' And then directions are given in the certificate, all of which one would expect to find in an order and not in a certificate. The certificate has to be signed by the District Judge.
12. In effect, although called a certificate, the document implements the previous order and takes the place of Form No. 4 in Seton above referred to. So that, in the result there is an original order which is implemented by a certificate, and this latter is the authority for the guardian to take possession of the minor's property. These forms are unsatisfactory and their amendment may well be considered.
13. The matter, however, does not rest there, as the problem appears to have been agitated in several of the High Courts of this country and there is a conflict of authority as to the effect of an order which is not immediately operative.
14. The first case is Rudra Prokash Misser v. Bhola Nath Mukherjee I.L.R. (1886) Cal. 612 and it lays down that once a guardian has been appointed before the minor has completed his eighteenth year, the minority continues until twenty-one, even though the guardian ceases to act.
15. In Mungniram Marwari v. Mohunt Gursahai Nund , which was a case under the Guardianship Act of 1858, the certificate of guardianship was in unconditional form, and dealing with the matter, Sir Richard Couch says at p. 200 as follows:
The Court is to exercise a discretion, or at least is to inquire whether the person making the application is entitled to have the certificate. Their Lordships are of opinion that when the Court makes that inquiry, and comes to a decision that the application should be allowed, that is doing all that is substantially necessary in the matter; and when the order is made that the applicant shall have his certificate, the applicant really then obtains his certificate. All is done at that time which is necessary to shew that he is the person who should have the certificate. He then, by getting that order, substantially obtains the certificate, although the officer of the Court, whose duty it would be to draw up the certificate, and prepare it for the signature of the Judge, or the seal of the Court to be attached to it, may not do that for some time afterwards, on account of the course of business, or the party not applying to him; for it. When a man obtains an order for a certificate he does in substance comply with the terms of this Act, in the same way as when a person has the judgment of the Court that he shall have a decree in his suit it may be said that he then obtains his decree. The decree, when it is drawn up afterwards, relates back to that time; and so would the certificate in this case relate back; and the terms of the Act that he shall have obtained such certificate are complied with.
16. Then comes Gopal Chunder Bose v. Gonesh Chunder Srimani (1905) Cri.L.J. 112 in which it was held that the giving of security is merely an additional precaution, and only suspends the acts of the guardian, but that as soon as the order is made, the minor becomes a ward.
17. Srinivas Prosad Singh v. Kesho Prosad Singh (1911) Cri.L.J. 489 was the case of a receiver, and all that was decided there was that if the receiver is appointed without being required to give security, the order takes effect at once.
18. The next case comes from Madras, and is Subha Naick v. Rama Ayyar I.L.R. (1916) Mad. 775. In that case it was held that if a receiver is appointed without any direction as to security, the appointment takes effect at once, even if subsequently he be required to give security, but that if the appointment is conditional upon the furnishing of security, then the giving of such security is a condition precedent, with the result that there is no effective appointment until security be given.
19. The next case is In re Venkatesa Perumal I.L.R. (1925) Mad 809 which is a full bench case, and it was held that if a guardian be appointed of the person or property of a minor conditional on his furnishing security, and failure to furnish it ensues, then there is no appointment within the meaning of Section 3 of the Majority Act, and the minor accordingly attains majority when he completes eighteen. The reasoning upon which this decision was founded was that a conditional order with regard to the appointment of a guardian would be invalid, because Section 34 of the Guardians and Wards Act provides:
Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is not the Collector, he shall,-
(a) if sol required by the Court, give a bond....
Accordingly the Court was of opinion that no security could be ordered until a guardian had been actually appointed. I respectfully differ from this view. Section 34 is not mandatory, and merely provides that if a guardian is appointed, he shall, 'if so required by the Court', furnish security. Apart from the wide nature of Section 7 of the Act, which gives the power to declare or appoint a guardian, Section 34 does not make it obligatory for security to be furnished in all cases in which a guardian has been appointed or declared. The section is in no sense exhaustive of the jurisdiction of the High Courts to make orders for giving security in guardianship matters and leaves untouched the powers of the Court to make conditional orders under the Letters Patent. (See also Rule 7 above referred to in the Civil Manual of this High Court.).
20. The next authority comes from Lahore, and is another full bench case, namely, Sham Das v. Umer Din I.L.R. (1930) Lah. 312 . Mr. Justice Tek Chand, who delivered the only judgment, observed as follows (p. 320):
As stated already, the appointment had been made conditional upon security being furnished, but as this condition was not complied with, the order never became effective. The proposed guardian died before he had entered upon his duties and no other guardian was appointed. The minor never became a 'ward' as defined in Section 4(3) of Act VIII of 1890 and for this reason the case did not fall within the first part of Section 3 of the Indian Majority Act, The minor therefore attained majority when he had completed the age of 18.
Discussing the effect of a conditional order, Tek Chand J. observed (p. 322):
It is only when this (the furnishing of security) has been) done that he is clothed with the character of a 'guardian', and it is from that time that his appointment takes effect.
21. None of the above mentioned decisions are binding upon us, nor are they all capable of reconciliation. In my judgment, there is nothing invalid or illegal in making a conditional order; such orders are in fact frequently made in relation to the sale of mortgaged property and the giving of security for costs.
22. In all matters connected with the welfare of minors the predominant motive of the Court is to pursue a course of action which will be for the minor's benefit, and the consideration of the appointment of the guardian of a minor's property is no exception to this rule. There are three alternatives as to security in relation to such appointments:
(1) To make the appointment without requiring the giving of any security;
(2) To require the prospective guardian to enter upon security before coming to the Court for his appointment;
(3) To make a condition that upon security being given the appointment shall operate.
23. I cannot think that the first course is for the benefit of the minor, and it would be wholly contrary to the practice of this country and to Rule 5 of the Civil Manual mentioned above. The second course is hedged around with difficulties, in that security would either have to be given conditionally upon the Court making, the appointment, alternatively would have to be actually given, with the consequential unnecessary expense of its vacation should the Court for some reason decide against making a particular appointment. The third course is the most practical and convenient one, namely, to make the appointment upon security being given. If security be given, a question may arise in some future case as to whether the appointment relates back to the date when the original order was made, but that does not arise here, nor do we decide it.
24. There being nothing wrong or invalid in my judgment in this form of order, the effect of it is, in my opinion, not open to serious doubt; the receiver has no right to take possession of the minor's movable property until security has been furnished; were it otherwise, the whole object of the Court giving directions for security might be defeated. It follows, in my judgment, that if security be never given, the order never becomes operative, so far as the appointment of the prospective guardian is concerned. In my opinion, such an order cannot be 'cancelled' by the Judge who made it. If it is desired to get rid of an order if security be not given, the order can take the form of requiring security to be given on or before a specified date, so that if the time limit runs out the order automatically lapses. That prevents the difficulty envisaged by the learned Chief Justice Sir Murray Coutts-Trotter in In re Venkatesa Perumal and would be in accordance with Rule 7 of the Civil Manual which appears to be honoured at present only in its breach.
25. The learned Judge in the Court below having considered In re Venkatesa Perumal, and reverting to the facts of the case before him, said as follows:
The order of appointment is very definite and it was passed after the applicant intimated to the Court that he was willing to give security and hence the Court had no doubt in its-mind that the security was going to be furnished. Therefore, I cannot read the order of April 24, 1933, as being a conditional order. The appointment of a guardian was made as fact. There was of course the direction that the applicant was to give security. The applicant thereafter did not furnish security and the Court actually cancelled the previous order. This subsequent order itself shows that the Court had made the appointment of a guardian by the previous order. If the appointment had not been made as a fact there was no necessity to cancel the previous order. The order of cancellation was made after a notice was issued to the previous guardian. I, therefore, hold that there was an appointment of a guardian in 1933 and hence, although the subsequent order was made after Lilabai attained eighteen years, that was quite a valid order.
26. In my judgment, this is not the correct construction to put upon the order of April 24, 1933; nor, in my view, does the fact that the subsequent order is expressed to cancel it, give to it, any extended or other meaning than it originally possessed. In one sense the order of April 24, 1933, is a conditional order. But I prefer to approach it upon the basis that as no security was given, and it remained unimplemented by any subsequent order or certificate, the original order never became operative, and the minor never became a ward before completing her eighteenth year. This results in her will not being invalid on the ground advanced by the respondents and upheld by the learned Judge. The matter must, therefore, be remitted back to the Court below for letters of administration with will annexed to be granted.
27. No order was made as to costs in the Court below on the ground that : 'the failure of the applicant is mainly on the question of law and as the legal position propounded by the applicant is prima facie supported by a ruling of Madras High Court.' That part of the order will remain undisturbed, and the learned Judge will deal with any subsequent costs in the way he thinks fit.
28. The respondents must pay the appellant's costs of this appeal.
29. I concur. There is no doubt that the order of the Court appointing the guardian is a conditional order. It is not an order appointing the guardian with a direction that he should furnish security but it makes the giving of security a condition precedent to his appointment. In fact, the order complies with one provision of Rule 7 framed by our High Court under Section 50 of the Guardians and Wards Act that the order of appointment shall be made conditional on the furnishing of the requisite security although it does not comply with the other provision that the Court shall fix a time within which the security shall be furnished. Section 7 of the Guardians and Wards Act under which this order is made does not prohibit such a conditional order nor does Section 34 fetter the discretion of the Court in imposing the condition of security for making the order. No doubt Section 34 provides that where a guardian of the property has been appointed, he shall, if he is not the Collector, give a bond if so required by the Court. That does not, however, mean that the order of appointment should in all cases be made before the order of security or that if it is made simultaneously, it should not be made conditional. The Court may not make an order of security at all, and the Legislature could not have intended that if the order is to be made, it can only be made after the appointment. With great respect to the learned Judges of the Madras High Court, it is difficult to appreciate the reasoning of the full bench decision in In re Venkatesa Perumal I.L.R. (1925) Mad. 809 that the Court has no power to impose a condition of security upon a person who is merely an aspirant to the office of guardian before it actually appoints him. The condition, in my opinion, cannot be called a suspensory condition unwarranted by the Act. To call it suspensory is to assume that there must always be a first order of appointment which is to be suspended by the condition. The condition does not suspend the order but makes it operative only on the fulfilment of the condition. The view that such conditional orders could be made under the wide powers given to the Court in Section 7 as expressed in Subba Naick v. Rama Ayyar I.L.R. (1916) Mad. 775 which is overruled in In re Venkatesa Perumal, and Sham Das v. Umer Din I.L.R. (1930) Lah. 312 seems to me to be correct. The decisions in Mungniram Marwari v. Mohant Gursahai Nund Rudra Prokash Misser v. Bhola Nath Mukherjee I.L.R. (1886) Cal. 612 and Gordhandas v. Harivallabhdas I.L.R.(1896) 21 Bom. 281, relied on for the respondents, do not touch the point about the validity and effect of a conditional order.
30. Once it is held, that a conditional order of appointment is intra vires, there is, to my mind, no escape from the conclusion that if the condition is not fulfilled, there is no valid order of appointment. The only decision to the contrary effect is in Gopal Chunder Bose v. Gonesh Chunder Srimani (1905) Cri.L.J. 112 but that is against the current of authorities which hold, in the analogous case of a conditional appointment of receiver, that there was no receiver till security was furnished. Besides the decision of the Calcutta High Court to that effect in Srinivasa Prosad Singh v. Kesha Prosad Singh (1911) Cri.L.J. 489 there are English cases such as Edwards v. Edwards (1876) 2 Ch. D. 291.
31. The word 'appointed' in Section 3 of the Indian Majority Act means finally and validly appointed If an order of appointment is set aside by the same Court in review or by a higher court in appeal, it is not an order which could have the effect of prolonging the period of minority under Section 3 : Nagardas v. Anandrao I.L.R. (1907) 31 Bom. 590 . A fortiori a conditional order cannot operate to prolong the period if the condition, is not fulfilled with the result that the order does not come into operation at all. For these reasons I agree that the condition of security having not been complied with, there is no valid and final order of appointment and hence the period of minority was not extended. The appeal should, therefore, be allowed.
32. I may make some observations here about the rules and forms framed by our High Court under the Guardians and Wards Act. Rules 5, 6 and 7 framed by our High Court and referred to by the learned Chief Justice in his judgment are not only intra vires but necessary for the expeditious as well as beneficial management of the minor's property. The only change which we might recommend is that Rule 7 about the fixing of a time limit where security is required and making the order of appointment conditional on the furnishing of security should precede and not follow Rule 6 about the issue of a certificate after the security is furnished. As regards the forms in Appendix M in Vol. II of the Civil Circulars, it appears to us that form C about the security bond is not consistent with Rule 7. While the rule expressly says that the order of appointment shall be made conditional on the furnishing of security, the forrm describes the person giving the bond as already having been appointed as guardian. The form, therefore, requires amendment by adding the words 'on my furnishing security' after the words 'under the Guardians and Wards Act, 1890'. After the bond is executed, there should, in our opinion, be a final order for issue of a certificate of guardianship under form D which may require a suitable amendment.