Pigot and O'Kinealy, JJ.
1. After setting out the facts, found that the defendant was holding certain lands in excess of the quantity leased, and that the plaintiff was entitled to obtain possession of such lands, and gave him a decree against Guru Churn Chuckerbutty, but dismissed the suit as against the minors, inasmuch as the suit had not been properly framed as against them. The portion of the Court's judgment relating to the frame of the suit was as follows:
Another question still remains for our decision, namely, whether the plaintiff has in this case properly sued the minor sons of Chandra Kanta Chuckerbutty. They are described in the plaint in the following words: 'No. 2, Sharoda Sunderi Debya, widow of Chundra Kant Chuckerbutty, 'deceased, mother and guardian of Probol Chunder Chuckerbutty, Aukhil 'Chunder Chuckerbutty, Ananto Coomar Chuckerbutty, and Nishi Kanta 'Chuckerbutty, minors, inhabitants of Rudrakar, pergunnah Idilpore, station 'Palung, zillah Furridpore.
2. In the case of Sreenarain Mitter v. Sreemuti Kishen Soondery Dassee 11 B.L.R. 171 190 and 191 their Lordships of the Privy Council declared that
a suit against a father in his own right, and as guardian of his minor son was not a suit against the minor.
3. So far back as 1873, in the case of Mongala Dossee v. Sharoda Dossee 20 W.R. 48 a similar decision was arrived at in this Court.
4. In this case the suit was originally framed as it now stands, the defendants being described as No. 1, Guru Churn Chuckerbutty, son of Tiluk Chunder Chuckerbutty, deceased; No. 2, Sharoda Sunderi Debya, widow and mother and guardian of the minors, setting out their names.
5. The plaint is dated June 30th. On that day the plaintiff applied to have the mother Sharoda made guardian, and an order appointing her was made on July 30th, on which day the suit was instituted and summons in the suit issued.
6. We, think that, under these circumstances, the minors are not parties to this suit. Sharoda was not, and is not, so far as appears from the record, guardian of the person and property of the minors under Act XL of 1858. The provisions of Chapter 31 of the Civil Procedure Code, therefore, apply to this case (section 464). The order making Sharoda guardian ad litem was not made in a suit in which the minors were defendants: it was made ex parte in a proceeding to which they were strangers, no suit being at the time in existence.
7. Section 443 of the Code directs the Court to appoint a guardian ad litem when the defendant to a suit is a minor.
8. We think that before it is competent for the Court under this section to appoint a guardian ad litem, there must be a suit in which the minor is a defendant in existence. This is not a mere matter of form. It involves the necessity of service of the summons in the suit, so that the minor, or those in whose charge he is, may come in, and so have an opportunity of defending his interests in the matter of the selection of a guardian ad litem.
9. Neither the Code nor, as we construe it, the proviso of Section 3 of Act XL of 1858 gives to a plaintiff the power of instituting a suit against a person named by himself as guardian ad litem on behalf of the minor: nor do they give to the Court the power of transforming an irregular proceeding of this sort into a suit against the minor by its mere order made ex parte.
10. Probably, in the present case, the mother of the minors has no interest adverse to them, and is the person who would have been properly made their guardian ad litem. Probably the case has been conducted with as much regard to their interests as it would have been had it been regularly constituted.
11. But, however this may be, we are not able on this ground to hold that they are parties to the suit.
12. Section 464 of the Code makes the provisions of sections 442 to 462 not applicable, where a guardian of person or property has been appointed under a local law: the local law in this ease is, of course, Act XL of 1858. The proviso of Section 3 of that Act does not relate to a case were a guardian of person or property has been appointed; and if it be not repealed by the Code, it must, at any rate, be read with it. We think that this section also contemplates that a suit shall be instituted before a guardian ad litem is appointed; and that the summary appointment of such a guardian which, in the special circumstances, contemplated by the section, the Court is empowered to make, should be made in that suit. We do not here deal with a case in which a properly appointed guardian is alone placed upon the record as guardian of the minor defendants. That form of suit is highly incorrect, and should not be adopted. The proper form, where a minor having a guardian is to be sued is, to sue the minor (naming him) by A B his guardian.
13. This Court has, however, in more than one ease overlooked the defects of form when satisfied, or holding itself justified in inferring that the minor defendant was substantially represented by a properly appointed guardian.
14. Such a course was taken by the Court in Komul Chunder Sen v. Surbessur Doss Goopto 21 W.R. 298 in Grish Chunder Mookerjee v. Miller 3 C.L.R. 19 and by the Allahabad High Court in Janki v. Dharam Chand I.L.R. 4 All. 170.
15. In this case, however, we can make no such inference: we have the facts relating to the institution of the suit distinctly before us, and we hold upon them that the minors never have been represented in this suit, and are not bound by any proceedings taken in it. We think, therefore, that this objection is one that must be allowed, and that the suit, so far as the defendant No. 2, namely, Sharoda Sunderi Debya, who was not sued in her personal capacity, and the minors mentioned in that paragraph are concerned, must be dismissed.