Tottenham and Ghose, JJ.
1. This was a suit to recover possession of certain properties which were purchased on the 4th April 1876 by the defendant No. 1, Jogi Singh, who is the appellant before us, at a sale in execution of a decree. The plaintiffs are the sons of one Pheku Singh; one of them is a minor, and the other has attained majority. During their minority, Chet Narain Singh, their uncle, as also their mother on her own behalf and on behalf of her sons, executed a mortgage bond for Rs. 1,700. A decree was subsequently obtained upon that document in June 1875, and in execution of that decree the properties in suit were sold and purchased by the defendant. The plaintiffs brought the present suit in January 1882 to recover possession of their share of the properties thus sold to the defendant upon the ground that there was no legal necessity whatever for the loan contracted by the mother; that the decree was a fraudulent one; that in the suit in which the said decree was obtained they were no parties; and that at the sale their interest in the family property did not pass.
2. The defendant Jogi Singh denied the above allegations, and contended that he had acquired a valid title to the property by the purchase.
3. There were several issues raised in the Court of First Instance, but they were all decided in favour of the defendant. That Court found that there was legal necessity for the loan; that both in the bond and in the suit in which the decree was obtained, the minors were properly described and represented; and that, although no formal order was recorded by the Court giving permission to the mother under Section 3, Act XL of 1858, to act for her minor sons, yet inasmuch as 'she was made a defendant in the case as guardian of the minors, and defended the suit as such guardian, and the Court admitted her defence and decided the case accordingly, and the said decision had become final and conclusive, it should be understood that the Court had given the permission in question.' The Court of First Instance further found that the decree was a band fide one, and that the defendant had acquired a good title at the sale.
4. The Court of Appeal below has concurred with that of First Instance in all points, excepting in this, that it holds, following certain precedents quoted in its judgment, that inasmuch as the mother had no certificate under Act XL of 1858, and 'it not being apparent' that under Section 3 of that Act she had permission given to her to defend the suit on behalf of her minor sons, the minors were not represented in the said suit, and, therefore, the decree was not binding upon them. The Judge at the same time observed that he was not prepared to say that, if 'unaided by decisions,' he should not himself concur in the conclusion of the Sub-Judge, but the 'weight of authority 'being opposed to that view, he was of opinion that the plaintiffs were entitled to recover, but subject to the payment of a moiety of the money found to be due under the mortgage bond aforesaid, they 'the plaintiffs) at the same time getting credit for the sum of Rs. 1,062-6 paid by their mother during their minority.
5. The defendant has appealed against the said decision upon the ground that the decree in execution of which the property was sold was under the circumstances set out in the judgment of the first Court binding upon the plaintiffs, and that he had acquired a valid title under his purchase. The plaintiffs have filed cross-objections insisting that an unconditional decree should have 'been given to them.
6. It will be observed that the decree in execution of which the property was sold was made at a time when the old Procedure Code, Act VIII of 1859, was in force, and which did not contain a chapter like chapter XXXI which we have in the new Procedure Code, and which provides in Section 443 that 'where the defendant to a suit is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor, etc., etc.' If we had to consider the provisions of the present Procedure Code with reference to what was done in the previous suit in regard to the minors, we should feel grave doubts as to whether there was any appointment of a guardian ad litem, and whether the plaintiffs were parties in that case. But, as we have already observed, that suit was not governed by the rules laid down in the Code of 1877. What we have to do in the present instance is to consider the provisions of the Procedure Code of 1859, read with Section 3, Act XL of 1858, and determine whether there was such a material defect in the procedure of the previous suit in regard to the minors, as to render it incumbent upon us to say that the minors were not properly represented, and that the decree passed in that suit was not binding upon them. Now, Section 3 of Act XL of 1858 provides that no person shall be entitled to institute or defend a suit connected with a minor's estate, of which he claims charge until he shall have obtained a certificate under the Act; but that when the property is of small value, or for any other sufficient reason, the Court having jurisdiction may allow any relative of the minor to institute or defend a suit on his behalf, notwithstanding no certificate had been granted. The question then arises, whether, in the previous case, the present plaintiff's mother was allowed by the Court in which the suit was instituted to defend it on their behalf. If we were prepared to hold that under the law there must be a written permission, we should have felt ourselves bound to hold that such a permission having not been recorded the minors were not represented in that case. But we do not understand the law to be so, and in this view we are supported by a ruling of this Court in Aukhil Chunder v. Tripoora Soonduree 22 W.R. 525. It is indeed true that in one of the oases referred to by the Judge of the Court below a Divisional Bench of this Court in Mrinamoye Dabia v. Jogodishuri Dabia I.L.R. 5 Cal. 450 was of opinion 'that the permission must be formally recorded, as it is an act of judicial discretion which is necessarily open to appeal'; but it will be observed in the first place that the suit in that instance was governed by the Procedure Code of 1877 and not that of 1859; and, in the second place, it was not necessary, as we understand the case, for the learned Judges who decided it to come to any decision upon this matter; and, in the third place, the unrecorded order of the Court (supposed to have been made) allowing the mother to appear for the minor was made, in the course of the same proceedings which were the subject-matter of appeal to this Court, and therefore the whole of the proceedings having been before this Court in appeal, the learned Judges were in a position to pronounce, and were authorized to pronounce, judgment upon the question of the regularity or otherwise of the proceedings in connection with the appearance and representation on behalf of the minors. An order like this is not by itself subject to appeal, but if the case in which the order is made is appealed against, its propriety and validity may be determined by the Appellate Court. But, in the present instance, the action of the Court in allowing the mother to defend this suit on behalf of her minor sons is not before us in appeal. What we have to determine is, not whether the Court was right in allowing the mother to represent the minors and to defend the suit on their behalf, but whether, as a matter of fact, the Court did allow her to do so. Upon this matter, the Court of First Instance, upon a consideration of the whole of the circumstances, came to the conclusion that it was to be presumed that the Court did accord such permission to the mother. The learned Judge of the Appellate Court does not in any way disagree with the first Court in this conclusion, but, on the contrary, observes: 'I am not prepared to say that, if unaided by decisions, I should not myself concur in this finding of the Sub-Judge.'
7. That being so, it really comes to be a question of fact, viz., whether the conclusion arrived at by both the Courts below in this matter, viz., that under the circumstances permission may be presumed to have been given, is erroneous in law. We are of opinion that the grounds upon which the Courts below have proceeded are such as legitimately warrant such a conclusion, and we are unable, nor are we called upon to disturb the same.
8. Besides the case referred to above, viz.; Mrinamoye Dabia v. Jogodishuri Dabia I.L.R. 5 Cal. 450 the learned Judge of the Court below has relied upon two decisions of the Privy Council, viz.; Srinarain Mitter v. Sreemutty Kishen Soondery Dassee 11 B.L.R. 171 and Durgapershad v. Keshopersad Singh I.L.R. 8 Cal. 656.
9. In the first of these two oases, the suit was for setting aside two deeds for the adoption of a child, and it was brought against Sri Narain Mitter 'for himself and guardian of his minor son.' The Judicial Committee, being evidently of opinion that the minor was not properly described, held that the child was no party to the suit, and then made the following observations: 'If the son had been made co-defendant, it would have been necessary to have a guardian appointed for him. If the child was adopted, his natural father was not his guardian. On a suit by the plaintiff to set aside the deeds upon the ground that there had been no adoption, the plaintiff had no more authority to constitute the father the guardian of his son, by suing him as guardian, than the father would have had to constitute the plaintiff the guardian of the child if he had sued her for a declaration that the child had been validly adopted. If the father really refused to give the child in adoption, because he did not desire to have him adopted, he was not a proper person to protect the child's interest, or likely to make the best case in his behalf in a suit to declare the adoption invalid.' What the Judicial Committee held, was that, in the circumstances of that case, the defendant could not be constituted guardian of the minor, and that the minor was not represented by his natural father. That case is, therefore, really no authority for the question which the learned Judge had to decide in this case, and it will be observed that the remarks of the Judicial Committee were made in appeal against the judgment of the lower Court in the suit in which the minor was said to have been sued against through his guardian. In the present instance, the proceedings of the suit which was instituted against the minors are not before us in appeal.
10. In the other case, namely, in the case of Durgapershad v. Keshopersad Singh I.L.R. 8 Cal. 656 it appears that the suit in which the previous decree was obtained was brought against the minors under the guardianship of both their uncle and mother. An ex parte decree was in the first instance passed against both the defendants; but subsequently, upon application by the mother, the Court revived the suit, but eventually struck off the name of the mother and did not allow her to appear as the guardian of the minors. It seems to have been contended that the uncle was the guardian, but the Judicial Committee held that he was not so, he not having obtained a certificate under Section 3, Act XL of 1858. No question seems to have been raised as to whether or not the uncle had been permitted under the proviso to Section 3 to defend the suit on behalf of the minors; and, indeed, in the circumstances of that case, the question could not be raised. The decree was an ex parte one. There was no appearance at all on behalf of the minors, and therefore the Court was not called upon at any time during the progress of the suit to exercise the discretion vested in it by the proviso to Section 3, Act XL of 1858. That being so, the only question before the Judicial Committee was whether the suit was brought against the minor represented by a legal guardian. In this view of the matter, it appears to us that the decision in that ease does not help us in deciding the questions raised on the present occasion.
11. Being of opinion, as already expressed, that Section 3 of Act XL of 1858 does not require any written order allowing the next friend to sue or defend a suit on behalf of the minor, and that the Courts below have rightly found that such a permission might be presumed in this case, we cannot but hold that the minors were duly represented in the previous suit, and are therefore bound by the result thereof. And we may observe that the view which we take of this matter accords with that expressed by the Allahabad High Court in Kedar Nath v. Debi Din I.L.R. 4 All. 165.
12. There is one other point that we think we ought to notice. It was a point that was raised by the learned vakeel for the respondent, viz., that the minors were not properly described in the previous suit. This is indeed true; but this was merely a defect in form-a defect which does not, in our opinion, affect the true merits of the case. The description that was given of the minors was in accordance with the prevailing practice at the time when that suit was brought; and we agree in the view expressed by a Divisional Bench of this Court in holding 'that there is no authority for saying that where the minors have been really sued, though in a wrong form, a decree against them would not be valid Grish Chunder Mookerjee v. Miller 3 C.L.R. 17. See also Komul Chunder Sen v. Surbesur Doss Goopto 21 W.R. 298. The decree against the minors was obtained, and the sale took place in execution in the year 1876, and we think it would not be right, after this length of time, to unrip all that has taken place, and disturb the title which the defendant acquired so many years ago.
13. Upon all these considerations we are of opinion that the decree of the lower Court should be set aside, and that of the first Court restored, with costs.