Tottenham and Norris, JJ.
1. The Subordinate Judge appears to have based his judgment upon the case of Chunee Mal Johury v. Brojo Nath Roy Chowdhry I.L.R. 8 Cal. 967 where it was held that the making of the order under the provisions of Act XL of 1858, and not the subsequent taking out of the certificate is that by which a guardian is appointed of the person and property of a minor within the meaning of Section 3 of the Indian Majority Act. With great respect to the Judges who decided that case, we are unable to agree with them. Stephen v. Stephen I.L.R. 8 Cal. 714 is an authority the other way; and though on appeal it was found that the learned Judge, Wilson, J., who had decided the case had mistaken the facts, not only was no doubt thrown by the Court of Appeal on his view of the law, but Garth, C. J., says, 'I think until the certificate has been actually issued, the estate of the minor does not vest in the person who obtains the certificate see Stephen v. Stephen I.L.R. 9 Cal. 901. Mr. Evans tax the respondent contended that the order directing the certificate to be granted operated as a grant of the certificate, and clothed Jit Lall with as much authority as if he had actually taken out the certificate. He contended that after the order was made nothing remained to be done but a purely ministerial act by the officer of the Court. As to the effect of the order he cited Ex parte Hookey, in re Risca Coal and Iron Co. 4 De G.F. and J. 456, and as to the drawing up of the certificate being purely a ministerial act, he cited Koylosa Jonardan v. Ramasami Ayyan I.L.R. 4 Mad. 172 and Sithal Jondrdan v. Sithajirao Puttajirao I.L.R. 6 Bom. 587. The case of Ex parte Hookey, Mr. Evans himself admitted was not entirely sufficient for his purpose, that it only bridged over a portion of his difficulty. That case decided that when an order had been given orally in Court by a Judge upon a certain date, and had not been drawn up until some time afterwards, time for the purpose of limitation must be considered to run from the date on which the order was delivered orally in Court. Independently of the provisions of Section 6 of the Court Fees Act, we do not think that the preparation of the certificate is a purely ministerial act; we think that after an order is made for its being granted, the grantee must apply for it. But the section referred to seems to us to put the point beyond all doubt. It says: 'Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the first or second schedule to this Act annexed shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.' A certificate under Act XL of 1858 is one of the documents mentioned in the second schedule of the Court Fees Act. When the section says that such a document shall not be filed, exhibited or recorded in any Court of justice, or received or furnished by any public officer, it means that a certificate cannot actually come into existence until the person who has the permission of the Court to obtain it deposits the requisite amount of stamp duty. We are of opinion that the certificate under Act XL of 1858 was the very foundation of Jit Lall's title. Without it he had no authority to appear in the proceedings in the suit brought by Mungniram Marwari against the present plaintiff.
2. On this ground, we think that the judgment of the Subordinate Judge must be set aside, and this appeal allowed with costs.
3. The decree will be a decree for possession, and the Court below will be directed to enquire as to what mesne prefits, if any, the appellant is entitled to under Section 212, and as to what mesne profits, if any, he is entitled to under Section 211 of the Civil Procedure Code.