Thomas Fredrick Dawson Miller, C.J.

1. The suit out of which this appeal arises was instituted by the appellant, as plaintiff, on the 13th September 1915 to recover back from the principal respondents in this appeal certain properties purchased in execution of a mortgage-decree, obtained by them against the appellant in the year 1897, on the ground that the decree and the subsequent sale were obtained by fraud and collusion and that the appellant, then a minor, was not properly represented as defendant in the suit.

2. The learned additional Subordinate Judge of Muzaffarpur, before whom the suit came for trial, by his judgment dated the 19th December, 1918, found that the appellant was properly represented as defendant in the mortgage-suit, that no fraud or collusion had been practised and that the present suit was barred by limitation. He accordingly dismissed the suit.

3. The facts out of which the present dispute arise are shortly as follows: In the year 1892 Thakur Rameshwar Dutt, the father of the appellant, executed a mortgage-bond in favour of Babu Kosal Singh, the father of the first defendant and Dund Bahadur Singh, and Ram Prasad Singh, the second and third defendants, whereby he hypothecated the properties mentioned in the first and second schedules of the plaint to secure a loan advanced by the mortgagees, with interest.

4. In 1893 Thakur Rameshwar Dutt died leaving two widows. A few months later, in September or October 1893, the appellant was born to Musammat Bhagwati Kuer the younger of the two widows. There is a dispute as to the date of the appellant's birth, upon the determination of which the question of limitation depends, and which will be discussed later. It is sufficient to say here that I am satisfied, on the evidence, that the plaintiff was born in the year 1893 and came of age within 3 years of the date of the institution of the present suit and that it is not barred by limitation as found by the learned Subordinate Judge.

5. After his father's death, and up to the year 1896, the appellant was under the guardianship of Rai Barmand Bahadur, a brother of his father's senior widow Musammat Jagu Kuer. In that year Bhagwati Kuer was appointed guardian of the appellant's person and property under a certificate of guardianship duly granted by the District Judge of Chapra.

6. On the 3rd August 1897 the mortgagees brought a suit before the Subordinate Judge of Saran to enforce their mortgage impleading as defendant the appellant, then a minor, through his mother and guardian Bhagwat Kuer. No written statement appears to have been filed on behalf of the appellant in defence to the suit and on the 29th November 1897 the learned Subordinate Judge, after hearing the evidence in support of the plaintiffs' claim in that suit, pronounced judgment in their favour and passed a decree ex parte against the appellant. On the 14th May 1898 the decree was made absolute and in due course the mortgaged properties were sold in execution and purchased by the mortgagees. These proved insufficient to satisfy the decree and subsequently other ancestral properties of the appellant mentioned in schedule 3 of the plaint were sold in pursuance of a supplementary decree obtained against the appellant for the unsatisfied portion of the mortgage-debt.

7. The case made by the appellant in his plaint, and which he endeavoured to support by evidence, was that his mother, who was his certificated guardian in the year 1897, was a young, inexperienced and illiterate woman and entirely in the hands of her amlas who were friendly with the members of the respondents' family, and that the respondents, in collusion with the amlas, instituted the mortgage-suit and obtained an ex parte decree against the appellant by suppressing service of notices upon the appellant and his mother and that having won over the Court peon they caused him to make a false return of service. He further pleaded that all the subsequent proceedings, including the sale proclamation and sale, were tainted with fraud and no notices were served and that he, and presumably his mother who has been added as a pro forma defendant in the present suit, remained in ignorance of what had taken place until the year 1914 after he came of age. He further contended that the prices fetched at the execution sale were much below the real value of the property. He also pleaded that his mother never consented to be made his guardian ad litem in the mortgage suit and consequently he was not properly represented and that on this account the decree and subsequent proceedings were not binding upon him.

8. The evidence in support of the charges of fraud and collusion and non-service of processes was of the most vague and general character. It was denied by the respondents' witnesses and the learned Subordinate Judge refused, and in my opinion rightly refused, to believe it. The records of the case in so far as they have been preserved shew conclusively that notices were duly served and that all the proceedings were regular, and, although the appellant did not appear to defend the suit, there is no suggestion from first to last that the mortgage-bond upon which the suit was based was not a perfectly proper and valid instrument or that the circumstances were such that the mortgagor was not empowered to hypothecate the family property. In fact the learned Government Advocate, who appeared on behalf of the appellant in this appeal, abandoned the contention put forward in the trial Court that the decree was obtained by fraud or collusion or that the sale prices were inadequate.

9. He contends, however, first, that the suit is not barred by limitation, and, secondly, that the appellant was not properly represented in the mortgage-suit, as his mother, although appointed by the Court as guardian ad litem did not expressly consent to act as such and offered no defence to the action.

10. The first of the above questions depends mainly upon the evidence of Bhagwati Kuer as to the date of the appellant's birth. The learned Additional Subordinate Judge considered, upon the evidence, that the appellant had failed to make out that he came of age within three years of the 13th September 1915 when the suit was instituted. He was much influenced by the fact that the appellant's horoscope had not been produced and relied upon an answer given by his mother in cross-examination as showing that he was born, at an earlier date than he alleged. It is the appellant's case that he was a posthumous son born about 4 months after the death of his father. This is spoken to not only by the widow but by a number of other witnesses and his father's death is stated to have taken place in the year 1893. The appellant explains the non-production of his horoscope by stating that it had been missing for a long period. The verbal evidence alone might perhaps be of no great weight but there are certain documents in the case which appear to my mind to fix the date of the plaintiff's birth beyond all reasonable doubt. In the application for obtaining certificate of guardianship under Act VIII of 1890, filed by Bhagwati Kuer before the District Judge at Saran in 1896, before the mortgage suit was instituted, and when the present dispute as to the date of the appellant's birth could not have been foreseen, it is stated that the appellant's father died in 1300 F. (1893 A.D.) and that on his death the appellant was born to Bhagwati Kuer on the 12th October 1893. There seems no reason why the information there given should have been false as there was apparently nothing to be gained by concealing the truth of the statement so made at a time when the facts must have been fresh in the memory of the applicant. Again, in 1902, on an application made for appointing a new guardian of the appellant in place of his mother, the order of the learned District Judge states that the minor will come of age in 1914 which again fixes his birth as in the year 1893 although the month of his coming of age is said to be September and not October as in the previous application. At a later period, in May 1910, Bhagwati Kuer appears to have stated that her son was then 18 years old. This appears from an order of the District Judge of Saran made two years later in May 1912 when the appellant applied to be released from guardianship. The learned District Judge on that occasion appears to have relied upon the later statement of Bhagwati Kuer rather than upon that which appears in the order made in 1902 and assuming that the appellant was born in September, he calculated that in May 1910, when Bhagwati Kuer said he was 18 years of age, he would in fact be 18 years and 8 months, and that consequently he would come of age in September 1912. He accordingly made an order that he should be released from guardianship on the 14th September 1912. It is not unusual for witnesses in this country to speak of a person as being so many years old, say 18 when in fact he is only in his 18th year, and if Bhagwati Kuer was a year out in her calculation when she made the statement as to her son's age in 1910 it would mean that he was then in his 17th year which would be completed in September 1910. The learned District Judge, however, considered upon the materials he had before him, that the appellant would come of age in September 1912 and released him from guardianship on that day. The appellant has apparently accepted this ever since and pleads that he in fact came of age on that date. Even so the suit was instituted within 3 years of that date. In my opinion the more reliable evidence is that given in 1902 which appears both in the application for appointment as guardian and in the Judge's order and which shews the appellant to have been born in 1893. Apart from the non-production of the horoscope the learned additional Subordinate Judge interpreted an answer given in cross-examination by Bhagwati Kuer as meaning that the appellant was born some 3 years earlier than 1893. It Was, as he states, an admitted fact that Rameshwar Dutt, the appellant's father died in 1300 F. (1893 A.D.). It was also alleged that the appellant had a sister born about a year earlier than himself and the evidence was to the effect that Rameshwar Dutt died about 4 years after his marriage to Bhagawati Kuer. The widow in her evidence stated that the daughter died about a year after her birth which was shortly before the appellant was born. After various questions upon these matters she was asked in cross-examination how many days after the death of her girl her husband died. Her answer was "in the 4th year." It is to my mind quite clear from the context that the witness meant that her husband died in the 4th year of her marriage. The learned subordinate Judge, however, has taken this to mean that Rameshwar Dutt died 4 years after his daughter and if the appellant was born at or about the time when his sister died he must have been born 3 years or thereabouts before his father's death and as the father admittedly died in 1893 the appellant must have been born 3 years earlier. It is quite obvious, to my mind, that the answer given was not intended to, and cannot, bear this interpretation. Such an interpretation would be at variance with the whole of the rest of the witnesses, evidence. I am satisfied that the appellant came of age probably in 1914 and certainly not earlier than the 14th September 1912. It follows therefore that the suit is not time-barred.

11. With regard to the second point, although much of the matter originally upon the record in the mortgage suit has no longer been preserved the order sheet is still in existence and a certified copy has been put in evidence. From this it appears that the plaint was filed on the 3rd August 1897 and notices were ordered to issue on the minor and his proposed guardian. The notices were duly served and the return of service is recorded. The order appearing on the 17th September is to this effect; "Notices upon the minor defendant and his proposed guardian duly served. No objection made. Let Mussammat Bhagwati Kuer be appointed guardian ad litem, of the minor defendant and summons be issued upon her fixing the 25th November 1897. Plaintiff to file talbana and form of summons at once." On the 5th November the return of service of summons upon the defendant through his proposed guardian was filed and on the 25th November the entry is "The defendant on due service of summons does not appear. Case will stand ex parte against him." After taking evidence judgment was delivered on the same day and the suit decreed ex parte. It is quite clear from this that service of summons was duly made both in the first instance and again upon the application to appoint the guardian and that no objection was taken, and that then Musammat Bhagwati Kuer was appointed guardian ad litem of the minor by the Court. As already stated the Musammat was at that time the duly certificated guardian of the person and/property of the minor appointed by competent authority in that behalf. By S. 443 of Act XIV of 1882, the Civil Procedure Code then in force, it is provided that where the defendant to a suit is a minor the Court, on being satisfied of his minority, shall appoint a proper person to be guardian for the suit for such minor. As originally enacted the section proceeded thus, "The guardian for the suit is not a guardian of the person or property within the meaning of the Indian Majority Act, 1875, S. 3." This second paragraph was repealed by the schedule of the Guardians and Wards Act, (VIII of 1890) and by S. 53 of that Act the following paragraph was added to S 443 of the Civil Procedure Code. "Where an authority competent in this behalf has appointed or declared a guardian or guardians of the person or property, or both, of the minor, the Court shall appoint him or one of them, as the case may be, to be the guardian for the suit under this section, unless it considers for reasons to be recorded by it, that some other person ought to be so appointed." It was incumbent therefore upon the Court, unless special reasons appeared, to appoint Bhagwati Kuer the guardian of the minor for the suit and such appointment was made. I am prepared to concede that where the proposed guardian has been served with notice and objects to appear as such on behalf of the ward, the Court ought to appoint some other proper person to act as guardian. There is nothing, however, in the Act of 1882 which requires the Court to obtain the express consent of the guardian to act before appointing him in that capacity, and where a certificated guardian has been served with notice that it is proposed to appoint him the guardian ad litem of his ward and no objection is taken by the proposed guardian to this course, the Court might properly assume that he has no objection to the proposed appointment and in fact consents thereto. Whether more direct evidence of consent would be necessary under the provisions of the Code of 1882 in the case of the appointment of a guardian adlitem who was not the certificated guardian of the minor it is not necessary to consider as Bhagwati Kuer was in fact in 1897 the certificated guardian of the appellant.

12. There are, however, certain decisions relied upon by the appellant for the proposition that the consent of the proposed guardian ad litem is necessary before the Court is competent to make the appointment. In Narsingh Narain v. Sheikh Jahi (1912) 15 C.L.J. 3 it was held that where the mother of an infant defendant who was proposed by the plaintiff as guardian ad litem of her infant son never consented to act as such, it was not competent to the Court to appoint her as guardian. That was a case under the Code of 1882. In that case it appeared that the father of the infant was alive and had been appointed guardian of the person and property of the infant under Act VIII of 1890 before the suit was instituted. The appointment of the mother was therefore invalid both under the provisions of S. 443 of Act XIV of 1882, which require the duly constituted guardian to be appointed guardian ad litem, unless the Court considers for reasons to be recorded by it, that some other person ought to be appointed, and under S. 457 which prohibits the appointment of a married woman, and for these reasons the appointment was declared to be invalid. There is, however, a passage in the judgment to the effect that it is an elementary principle that no person can be appointed to act as guardian ad-litem of an infant without his consent. For this proposition the case of Jadoo v. Chhagon (1881) 5 Bom. 306 was relied upon. The latter case, however, is merely an authority for the proposition that the Legislature did not intend to force the office of guardian ad-litem on any person against his will and it appears from the report of the case that the proposed guardian had declined to act as such. Again in Balkishan Lal v. Topeswar Singh (1912) 17 C.W.N. 219: 15 C.L.C. 446 it was held that no person could be appointed guardian ad-litem without his consent and that merely because a plaintiff chose to propose a certain person as guardian ad-litem of an infant defendant it does not follow that such person is bound to accept the office. In that case, however, the person appointed was the father of the infant and his interest was found to be adverse to that of the son. In Dinabandhu Nandi v. Mashuda Khatun (1913) 16 C.L.J. 318 it was also held that where a proposed guardian did not enter appearance, the Court ought to have been asked to appoint one of its officers as a guardian ad-litem to the infants. The case of Purno Chandra Kunwar v. Maharaj Dhiraj Bejoy Chand Mahatab Bahadur (1913) 17 C.W.N. 519: 18 C.L.J. 18 is not in point as in that case the minor was sued without a guardian at all. The earlier case of Narsingh Narain v. Sheikh Jahi Mistry was referred to with approval by the learned Chief Justice but as he pointed out the guardian in the case referred to was a married woman. She was therefore incapacitated from acting as guardian ad-litem and this was the only part of the decision in the earlier case which was material to the question before the Court in Purno Chandra Kunwar v. Maharaj Dhiraj Bejoy Chand Mahatab Bahadur (1913) 17 C.W.H. 519: 18 C.L.J. 18. It was not necessary to consider the question of consent. In Narendra Chandra Mondal v. Jogendra Narain Rai (1914) 19 C.W.H. 537: 20 C.L.J. 169 the Calcutta High Court again expressed the view that a mother could not be appointed guardian ad-litem of her infant children without her express consent. In none of those cases was the guardian a person appointed or declared by competent authority the guardian of the person or property of minors within the meaning of S. 443 of the Code of 188. The question of the consent of a certificated guardian under the former Code arose directly for determination by the Calcutta High Court in the recent case of Sarat Chandra Maiti v. Bibhabati Debi (1921) 34 C.L.J. 302. It was there held that the previous decisions, to some of which I have referred, did not apply to the case of a person who had already been appointed guardian of the person and property of a minor by competent authority within the meaning of S. 443 of the former Code, and that such a person might be properly appointed although he did not expressly consent thereto. In fact the section itself directs that where such a person exists the Court shall appoint him unless it considers, for reasons to be recorded, that some other person should be so appointed. It must be remembered that the Code of 1882 contains no provision similar to that found in O. 32, R. 4(3) of the Code of 1908. It seems to me that, in the absence of any such provision, where a person, as here, has voluntarily applied to be appointed guardian of the person and property of a minor under the provisions of the Guardian and wards Act he is bound to deal with the Ward's property as if it were his own and to do everything which is reasonable and proper for the protection and benefit of the property entrusted to him. This obligation in fact arises under S. 27 of the Guardian and Wards Act. If therefore the guardian has been served with notice of his appointment as guardian ad-litem in a suit against his ward and chooses to take no steps to object to his appointment, the Court may well presume that he consents thereto, and the mere fact that he does not enter appearance or defend the action can afford no presumption that he repudiates his liability. In the present case in spite of her disclaimer there is abundant evidence to shew that Bhagwati Kuer was interesting herself as guardian of the minor on his behalf. In the execution proceedings it appears that she presented an application to have the sale set aside. Again we find her later, in 1900 and 1901, applying to the District Judge for permission to raise money for the purpose of discharging the encumbrances left on the property by her late husband. Some of these applications are signed on her behalf by her agents or servants but in many cases they are signed by herself in her own name and I have no doubt that both before and at the time of the suit in 1897 she was fully alive to her responsibilities.

13. The decision of Walian v. Banke Behari Pershad Singh (1903) 80 I.A. 182: 30 Cal. 1021 appears to me to support the view I have already expressed. In that case a minor was sued through his mother as guardian. No formal appointment of the mother as guardian was made by the Court under S. 443 of the Code of 1882. The Court, however, appears to have treated her as the guardian throughout. She did not appear in the suit and an ex parte decree was passed against the minor who subsequently sought to have the decree set aside or treated as not binding upon him upon the ground that he had not been properly represented in the suit, no formal order having been passed appointing his mother as guardian ad litem. Their Lordships of the Privy Council agreed with the High Court in the view that the Court after satisfying itself of the fact of minority was bound to appoint a proper person to act on behalf of the minor in the conduct of the case and emphasised the importance of following strictly the rules laid down in the section referred to, but differed from the High Court's decision in so far as it had held that a defect in following those rules was necessarily fatal to the proceedings. Although the guardian had not appeared in the trial Court she had subsequently preferred an appeal on behalf of the minor. Their Lordships held that the Court had in effect, although not formally, sanctioned the appointment of the mother as guardian by treating her as such and that the defects of procedure alleged in the case were at most irregularities which under S. 578 of the Code then in force would not have furnished grounds for reversing the proceedings in the former suit if they had been raised upon appeal in that suit.

14. In the present case, in my opinion, there was not even a defect in the procedure but if there had been, the decision of their Lordships last cited would appear sufficient authority for holding that where the interests of the minor had not been prejudiced, and there is nothing to shew any prejudice in this case, the defect is not fatal.

15. It was suggested during the argument that if Must. Bhagwati Kuer had appeared, she might have asked the Court to treat the stipulation in the mortgage bond providing for increased interest in case of a breach as penal and to refuse the increase. S. 74 of the Contract Act was relied on. This section was enacted in 1899 but under the law as it stood in 1897 a stipulation in a mortgage bond providing for increased interest in case of a breach was not regarded as penal if it referred to future interest only and was not retrospective. This point therefore would not have been open and no other defence has been suggested. In my opinion this appeal should be dismissed with costs to the respondents who have appeared.

Foster, J.

16. I agree.