Lanselot Sanderson, C.J.
1. This is an appeal from the judgment of my learned brother, Mr. Justice Rankin.
2. On the 24th of November 1919, a suit was brought by the plaintiff against Dasarathi Singha, based upon promissory-notes alleged to have been executed by the defendant, the dates of which extended from the 28th of July to the 3rd of September 1919. The defendant was sued as a person who was suijuris. On the 17th of December 1919, an ex parte decree was made. Thereafter, there was an attachment of certain propertied, and, in consequence thereof, on the 16th of February 1920, an application was made by Subashini Dasi, who was alleged to be the certificated guardian of the defendant, that the decree should be get aside. It was alleged that at the time of the above-mentioned suit and decree the defendant, Dasarathi Singha, was a minor. On the 15th of June 1920, the learned Judge delivered judgment after an issue or issues had been tried, and the following order was made: 'This Court doth declare that the defendant is a minor under the age of twenty-one years and it is ordered that all proceedings in this suit except the said plaint be, and the same are hereby, set aside. And it is further ordered that the defendant be at liberty to appear in and defend this suit upon a proper guardian being appointed in this suit. And it is farther ordered that the said plaint and the register of this suit be amended by describing the defendant in the cause title thereof as a miner under the age of twenty-one years.'
3. The main ground on which this appeal was argued by the learned Counsel for the appellant was that the order appointing the guardian, who was the sister of the defendant, was a nullity, and that the defendant had in fact attained his majority in May 1919.
4. The material dates are as follows. In December 1900, the father of the defendant died; on the 31st of May 901 the defendant was born; on the 30th of August 1901 Letter of Administration were granted So the defendant's mother in repeat of the father's state. It was on the 20th of July 1947 that Subashini Dasi, the applicant in this matter, was appointed guardian of the person and the property of the defendant, Dasarathi Singha. At that time the defendant was under the age of seventeen years. By reason of the provisions of the Indian Majority Act, the effect of that order, if valid, was to extend the minority of the defendant until he attained the agent twenty-one. Therefore, if the order was valid, the defendant was still a minor in 1919, when the promissory-notes were executed by him and when the decree in the suit was mode.
5. Learned Counsel has argued that the order of guardianship made by the District Judge was without jurisdiction and that, consequently, it should be treated as a nullity, and that if it were so treated the defendant was not a minor in November or December 1919, when the suit was instituted and the decree made, inasmuch as he attained the age of eighteen in 1919.
6. The District Judge of the Hughli Court by his order appointed the sister guardian of both the person and the property of the defendant. My learned brother, Mr. Justice Rankin, found that the residence of the defendant was not within the jurisdiction of the Hughli Court and that, consequently, the appointment of the guardian, so far as it concerned the person of the defendant, was not valid. But the learned Judge further found that certain of the properties left by the miner were within t(sic)e jurisdiction of the Hughli Court and that, consequently, the order was no invalid go far as the property was concerned.
7. It was, however, urged that the mother of the defendant had been appointed administratrix of the father's estate and of the above mentioned properties and that, consequently, the said properties vested in her and, therefore, they were not the properties of the defendant. It was urged, therefore, that the Hughli Court had no jurisdiction to make the order appointing the sister guardian of the property, and, therefore, it must be treated as a nullity. By Section 4 of the Probats and Administration Act (V of 1881) it is provided as follows:
'The executor or administrator, as the case may be, of a deceased person, is his legal representative for all purposes, and all the property of the deceased person vests in him as such. [But nothing herein contained shall vest in an executor or administrator any property of a deceased person which would otherwise have passed by survivorship to some other porson].'
8. Therefore, the property of the defendant's father would vest in the defendant's mother as administratrix on her appointment as such administratrix, and for the purposes of administration. The defendant, however, was admittedly his father's heir, and he had a beneficial interest in the property, and I am not prepared to hold that the mere fact of the appointment of the mother as administratrix would have the effect that the defendant had no property within the jurisdiction of the Court within the meaning of Section 9 (2) of the Guardians and Wards Act (VIII of 1890).
9. In my judgment, therefore, the Hughli Court had jurisdiction to make the order as to the guardianship of the property, and, although there may not have been any necessity to appoint the guardian in respect of the property---as to which express no opinion---I cannot, hold that the order was a nullity. The order of the Hughli Court, therefore, extended the minority of the defendant until he was twenty-one years old. Consequently, he was a minor at the date of the suit and the decree, and he should not have been sued as if he were a person in sui juris.
10. The result, in my judgment, therefore, is that I agree with my learned brother, Mr. Justice Rankin, in the order which he has made, and, in my judgment, this appeal should be dismissed with casts.
Asutosh Mookerjee, J.
11. I agree that the order made by Mr. Justice Rankin must be affirmed and this appeal dismissed with costs.
12. The facts material for the determination of the question in controversy are not in dispute at this stage, and may be briefly outlined. On the 24th November 1919, the appellant instituted a suit against the respondent on several negotiable instruments under Order XXXVII of the Civil Procedure Cods. The claim was not contested, and was decreed ex parte on the 17th December 1919. On the 12th February 1920, the sister of the respondent initiated the proceedings which have culminated in this appeal. She made an application under Rule 4 of Order XXXVII of the Code of Civil Procedure, to set aside the ex parte decree on the allegations that the respondent was, at the date of the institution of the suit, an infant, that she had been appointed guardian of his person and property, that the suit instituted against him, described as sui juris, was not properly constituted, and that, consequently, the ex parte decree should be vacated and the suit restored to be retried in accordance with law. It was asserted that the respondent was the posthumous son of his father and was born on the 31st May 1901. Her sister was appointed guardian of his person and property by the District Judge of Hughli on the 30th July 1917 with the result that the period of minority, which would otherwise have terminated on the 31st May 1919 was extended up to the 31st May 1922. Consequently, on the 27th November 1919, when the suit against the respondent was instituted he was still an infant. The appellant contended that the order for the appointment of the sister as guardian was inoperative, first, because it had been made without jurisdiction; and secondly, because it had been irregularly made without service of the requisite notices. Mr. Justice Rankin overruled these contentions and granted the application.
13. On the present appeal, the grounds urged before Mr. Justice Rankin have been reiterated and it has been urged by Mr. Chakravarti that the order was made without jurisdiction and that, in any event, it was irregularly made.
14. It may be stated at once that the second ground assigned cannot be entertained in the present proceedings. If the order was irregularly made, the proper course to follow was to have it vacated by the Court which passed it, as pointed out by Mr. Justice Davar in the case of Nagardas Vachra v. Anandrao Bhai 31 B. 590 : 9 Bom. L. R. 495. We are, consequently, called upon to consider only one question, namely, whether the order for appointment of guardian was made without jurisdiction. Section 9 of the Guardians and Wards Act (1890) provides that if the application is with respect to the guardianship of the person of the minor, it may be made to the District Court having jurisdiction in the place where the minor ordinarily resides, or to a District Court having jurisdiction in a place where he has property. In so far as the order appointed the sister to be guardian of the person of the minor, it has been found that, at the date of the application, the minor did not ordinarily reside within the jurisdiction of the District Court at Hughli. Consequently, we may take it that the order in that respect was made without jurisdiction. But this is not sufficient for the purposes of the appellant, because, under Section 3 of the Indian Majority Act (1875), the period of minority is extended from eighteen years to twenty-one years, if a guardian has been appointed either of the person or of the property of the infant. Consequently, the appellant has to establish that the order for the appointment, of the sister as guardian of the property of the minor was also made without jurisdiction.
15. On this part of the case, the contention is that the minor had no property within the jurisdiction of the District Court at Hughli. It is conceded, however, that the father of the minor left property within the jurisdiction of that Court. The respondent on his birth took this property by right of inheritance, because it is well established that an unborn child is treated as in actual existence whenever it is to his benefit so to treat him. As was pointed out in Reroja v. Nutokissan 2 Sevestre 238, and Keshob v. Eirhnu Prosad 2 Sewestre 240, this is a principle recognised by Hindu Law. The rule was subsequently affirmed by a Full Bench of this Court in Kali Das v. Krishan Chandra Das 2 B. L. B. 103 at p. 121 (F. B.); U. W. R. A. 0. J. 11 : 4 Mad Jur 296 : 1 Ind. Dec. (N. s.) 639, and was recognised by the Judicial Committee in the case of Ganendramohun Tagore v. Jotendromohun Tagore I A. Sup. Vol. 47 at p. 67 : 18 W. R. 359 : 9 B. L. R. 377 : 2 Suth. P. C. J. 692 : 3 Sar. P. C. J. 82. We then start with the position that the respondent took by right of inheritance the estate left by his father, subject no doubt to the liability to discharge such debts, if any, as were legitimately payable out of the assets left by him. It is then contended, that as, on the 30th August 1901, the mother of the infant was appointed administratrix to the estate left by her deceased husband, the properties seated to be the properties of the infant within the meaning of Section 3 of the Indian Majority Act. In support of this proposition reliance is placed upon Section 4 of the Probate and Administration Act, which is in these terms. 'The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.' This section corresponds to Section 179 of the Indian Succession Act (1865), which was considered by this Court in the case of Braja Nath Dey Sirkar v. Anandamayi Dasi 8 B. L. R. 208. Mr. Justice Phear pointed out in that case that the executor or administrator holds the estate of the deceased only in a representative obduracter, and takes no beneficial interest therein. This view was affirmed in Rujnaram v. Universal life Assurance Co. 7 C. 594 : 6 Ind. Jur. 85 : 10 C. L. R. 561 : 3 Ind. Dec. (n. s.) 931, and was subsequently adopted by the Bombay High Court in Lallubhai v. Mankuvarbai 2 B 388 : 1 Ind. Dec. (n. s.) 682 (F. B.), and by the Madras High Court in Adusupatti Venlkata Rao v. Sawmi Pillai 13 Ind. Cas, 795 : 22 M. L. J. 228 : 11 M. L. T. 27 : 1912. M. W. N. 56. The case last mentioned pointed out that the decisions in Bhaiji Bhimji v. Administrator-General of Bombay 28 B. 428; Chitty's S. C. C. R. 580 : 12 Ind. Dec. (n. s.) 288, and Srirangammal v. Sandammal 23 M. 216 : 9 M. L. J. 838 : 8 Ind. Dec. (n. s.) 550, were in reality not opposed to this principle. In these cases, the question substantially in controversy was as to the right of possession of the administrator as against the person entitled to succeed to the estate either under a testamentary instrument, or in the ordinary course of inheritance when the original owner died in testate.
16. I am, therefore, unable to hold that the result of the appointment of the mother of the respondent as administratrix on the 30th August 1901 was to deprive him of his interest in the estate of his father, which he had acquired on his birth on the 31st May 1901. Consequently, the order for appointment of his sister as guardian was made with jurisdiction and had the effect of extending the period of his minority up to the 31st May 1922. The suit instituted against him as sui jurit on the 27th November 1919 was thus improperly constituted and the ex parte decree made therein has been rightly vacated.