1. This suit has been brought by two minors represented by their mother, and by the mother herself, against their father, and one who has obtained a decree against him, to obtain the exemption of their shares in certain ancestral property from sale in execution of that decree. The suit has been dismissed by the Court of First Instance, and the plaintiffs are the appellants.
2. An objection has been taken before us for the first time that, as the person appointed to be guardian of the minors for the purposes of this suit is their mother, a married woman, they are not properly represented, and the proceedings are bad ab initio.
3. The terms of Section 457 of the Code of Civil Procedure are clear in declaring that 'no married woman can be so appointed.'
4. It might, therefore, happen that if the minors were unsuccessful in the present litigation, when they come of age they would claim the right to sue again, on the ground that they were not bound by any of these proceedings, which were not taken before by one properly representing them; and they might also claim to be exempted from all costs incurred in this suit.
5. The objection should have been raised in the first Court, but the Subordinate Court should, without any objection being made by the defendant, have taken notice of it, although the matter was one which might readily escape his observation. The fact that the case has proceeded so far cannot affect our action except in the matter of costs, for the defendants clearly should not obtain costs for proceedings unnecessarily taken when they were partly to blame for the result.
6. We must, therefore, declare the proceedings to be null and void so far as the minors are concerned.
7. We have, however, to consider the case of the other plaintiff, the mother. Having regard to her position in the matter under litigation, the comparatively small interest that she individually represents, and the confusion which would result in a suit brought by her alone, if indeed that were possible in the absence of the minor sons as parties to it, and on this point we would express no opinion, we think that we should allow her to withdraw from it with liberty to bring a fresh suit. The plaint will be returned. We allow no costs in this or the lower Court.