Judgement Appeal from a decree of the High Court (August 5, 1902) reversing a decree of the Subordinate Judge of Meerut (October 7, 1899). The object of the suit, which was brought by the appellant, then fourteen years old, on September 21, 1898, under the guardianship of her husband, was to obtain, under the circumstances set out in their Lordships judgment, a declaration that two decrees and three sales in execution of decrees were invalid so far as concerned her share in her fathers estate which purported to be bound thereby. The two decrees, dated December 16, 1891, and August 28, 1894, were alleged to be not binding upon her because, amongst other reasons, her sister Ulfat-un-nisa had in the suits in which those decrees had been made been improperly appointed her guardian ad litem. The relief sought was a cancellation of Law Rep. 36 Ind. App. 168 ( 1908- 1909). Musammat Rashid-Un-Nisa V. Muhammad Ismail Khan 74 the decrees and sales and a restoration to the plaintiff of possession of her full share of three biswas in the estate of her father, Sardar. Khan, with mesne profits and costs. Mauladad Khan, the decree-holder, had died on July 22, 1893, and his four sons had succeeded to his estate to the exclusion of his other heirs under the Mahomedan law. As Niaz Muhammad Khan, one of the sons, was the next friend and husband of the appellant, he claimed no relief against himself, and limited the claim for relief to the three-fourths share held by his brothers. The respondents alone defended the suit, asserted the validity of the decrees and sales in execution, and pleaded, inter alia, that the suit was barred by the provisions of s. 244 of the Code of Civil Procedure. The Subordinate Judge decreed the suit. He held that the decrees and sales were not binding on account of the minor not having been properly represented and that the suit was not barred by s. 244. The High Court, on the other hand, held that s. 244 barred the suit. They said "The decrees upon which those execution proceedings were founded are not in any way impeached in the suit, nor could they be. The High Court, on the other hand, held that s. 244 barred the suit. They said "The decrees upon which those execution proceedings were founded are not in any way impeached in the suit, nor could they be. The impeached transactions were proceedings in execution of those decrees, and, this being so, it was the proper course for the plaintiff, if she had any objection to make to the execution of the decrees, to raise these objections under the provisions of s. 244 of the Code of Civil Procedure and not by a separate suit. If Mauladad Khan was not entitled to execute the decrees, or if there was any irregularity in the proceedings which were taken in carrying out the execution, it was open to the plaintiff or any one who was injured thereby to apply under s. 244 and have these questions decided by the Court executing the decree, they being questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution of the decrees. It is not open to the plaintiff in an independent suit now to impeach the proceedings so had in execution." Cave, K.C., and W. A. Raikes, for the appellant, contended that s. 244 did not bar the suit. That section only applies as between the parties to the suit in which the decree being executed was made. As the appellant was not properly represented she was in no sense a party. The sales were sought to be set aside on a variety of grounds, including fraud and breach of trust, and as illegal having regard to s. 232, C. C. P., and s. 244 had no application thereto, even if the appellant had been a party to the suits. Reference was made to Mohendro Narain Chaturaj v. Gopal Mondul (( 1890) I. L. R. 17 Calc. 769, 777, 784.), Murigeya v. Hay at Saheb (( 1898) I. L. R. 23 Bomb. 237.), Hassan Ali v, Gauzi Ali Mir (( 1903) I. L. R. 31 Calc. 179.), and Prosunno Coomar Sanyal v. Kasi Das Sanyal. (( 1892) L. R. 19 Ind. Ap. 166.) On the point of invalid representation s. 443, C. C. P., is conclusive ; the decree was null and void see Hanuman Prasad v. Muhammad Ishaq. (( 1905) I. L. R. 28 Allah. 179.), and Prosunno Coomar Sanyal v. Kasi Das Sanyal. (( 1892) L. R. 19 Ind. Ap. 166.) On the point of invalid representation s. 443, C. C. P., is conclusive ; the decree was null and void see Hanuman Prasad v. Muhammad Ishaq. (( 1905) I. L. R. 28 Allah. 137.) The appellant was not properly represented, because her sister, appointed as her guardian ad litem, was a married woman and disqualified see s. 457, C. C. P. Reference was made to Banarsi Das v. Maharani Kuar (( 1882) I. L. R. 5 Allah. 28, 33.); C. C. P. (II. of 1908), s. 47, corresponding to the said s. 244; the Guardians and Wards Act (VIII. of 1890), s. 20; Act XL. of 1858, s. 7 ; and C. C. P., s. 460. De Gruyther, K.C., and Dube, for the respondents, contended that s. 244 barred a separate suit. The questions for decision by the Courts were all questions relating to the execution of decrees within the meaning of that section. The appellant was duly represented in the suits which led to the decrees sufficiently to mate her a party to the suit within the meaning of that section. Besides, the Court executing the decree would be the proper tribunal to decide whether the appellant was a party to the suit sufficiently to enable her to obtain relief therein. Reference was made to Khiarajmal v. Darin. (( 1904) I. L. R. 3 Calc. 236.) If a disqualified person were appointed guardian ad litem, that is a mere irregularity, and not a ground for setting aside decrees and sales see Musammat Bibi Walian v. Banke Law Rep. 36 Ind. App. 168 ( 1908- 1909). Musammat Rashid-Un-Nisa V. Muhammad Ismail Khan 75 Behari Pershad Singh (( 1903) L. R. 30 Ind. Ap. 182.), which was opposed to the case cited on the other side from 28 Allah. 137. Moreover, a guardian ad litem only represents the infant, and not the property, and by s. 53 of the Guardian and Wards Act (VIII. of 1890) a guardian of the person of a minor is given the preference in making an appointment of a guardian ad litem, and that had the effect of validating Ulfat-un-nisas appointment see r. 4 under Act VIII. of 1890, and s. 443, C. C. P., which has been modified by the above s. 53. of 1890) a guardian of the person of a minor is given the preference in making an appointment of a guardian ad litem, and that had the effect of validating Ulfat-un-nisas appointment see r. 4 under Act VIII. of 1890, and s. 443, C. C. P., which has been modified by the above s. 53. There is no provision of Mahomedan law which prohibits a married woman from being a guardian. Sect. 9 of Act VIII. of 1890 and the Indian Trust Act (II. of 1882), s. 53 (which applies to the North West Provinces), C. C. P., 1908, s. 53, sub-s. 6, and Prosunno Coomar Sanyal v. Kasi Das Sanyal (L. R. 19 Ind. Ap. 166.) were referred to. Cave, K.C., replied, citing Kundan Lal v. Gajadhar Lal (( 1907) I. L. R. 29 Allah. 728.), to the effect that the appointment in this case was not a mere irregularity. De Gruyther, K.C., referred to Kachayi Kuttiali Haji v. Udum-pumthala Kunhi Putha. (( 1905) I. L. R. 29 Madr. 58.) Th judgment of their Lordships was delivered by SIR ANDREW SCOBLE. Muhammad Sardar Khan, the father of the appellant, died on May 1, 1888, possessed of a half-share in Mouzah Gaisupur and other property and leaving as his heirs according to Mahomedan law (1.) Ulfat-un-nisa, an adult daughter by his first wife; (2.) the appellant Rashid-un-nisa, aged four years, daughter by his second wife; and (3.) a brother named Mauladad Khan. Each of them was entitled to a third share in the estate. He also left an illegitimate son named Abdul Majid Khan, for whom he made provision in his lifetime by a gift of a share in his Mouzah of Gaisupur, leaving nine biswas of that property to be divided among his legitimate heirs at the rate of three biswas apiece. At the time of his death Sardar Khan was indebted to the following persons — (1.) To Fateh Chand for Rs. 8280.11, under a decree dated December 18, 1882 ; (2.) To Achal Das for Rs. 2500, under a bond dated January 31, 1882; (3.) To Sant Lal and Moti Lal for Rs.2294.1, under a decree dated January 17, 1883 ; and (4.) To his brother Mauladad Khan, under a possessory mortgage deed for Rs.14,000, dated May 18, 1886. 8280.11, under a decree dated December 18, 1882 ; (2.) To Achal Das for Rs. 2500, under a bond dated January 31, 1882; (3.) To Sant Lal and Moti Lal for Rs.2294.1, under a decree dated January 17, 1883 ; and (4.) To his brother Mauladad Khan, under a possessory mortgage deed for Rs.14,000, dated May 18, 1886. On May 9, 1888, Mauladad Khan filed an application for mutation of names in respect of Gaisupur in favour of the three legal heirs of the deceased. This application was opposed by Ulfat-un-nisa on the ground that Abdul Majid (who was then a minor and as to whose illegitimacy she was silent) was entitled to half the estate, to the exclusion of the brother, Mauladad Khan. And the matter was referred to the arbitration of one Abdul Karim Khan, who made his award under date January 12, 1889, whereby he gave the largest share of the property to Abdul Majid, and reduced the share of the appellant, Rashid-un-nisa, from three to two and a quarter biswas. In this arbitration Ulfat-un-nisa represented herself as acting as guardian of the minors, Abdul Majid and Rashid-un-nisa, and her general attorney, one Siraj Ahmad, signed the award on their behalf. This award seems to have been so far acted on that mutation of names was ordered to be made in conformity with it. Law Rep. 36 Ind. App. 168 ( 1908- 1909). Musammat Rashid-Un-Nisa V. Muhammad Ismail Khan 76 While these proceedings were pending Ulfat-un-nisa, on July 18, 1888, applied to the District Judge of Meerut for a certificate of guardianship under Act XL. of 1858 in regard to both minors, and her application was opposed by Mauladad Khan, as regards Rashid-un-nisa, on various grounds, one being that the minor was married to his son, Niaz Muhammad Khan, and that he "maintained and looked after " her. He therefore asked that a certificate of guardianship might be granted to himself. of 1858 in regard to both minors, and her application was opposed by Mauladad Khan, as regards Rashid-un-nisa, on various grounds, one being that the minor was married to his son, Niaz Muhammad Khan, and that he "maintained and looked after " her. He therefore asked that a certificate of guardianship might be granted to himself. His petition is dated August 2, 1888; and by an order of the District Judge of Meerut dated April 13, 1889, it appears that Ulfat-un-nisa had withdrawn her claim, and a certificate of management of the girls estate was granted to Mauladad; but, as " the uncle cannot properly be constituted guardian of the girls person," the judge directed that she should u remain in charge of her half-sister, Ulfat-un-nisa." Meanwhile Mauladad was actively engaged in settling the claims against Sardar Khans estate. On April 6, 1889, he purchased in the name of his four sons the decree held by Sant Lal and Moti Lal for the sum of Rs. 2500, and on April 8, 1889, he purchased in the same names the claim of Achal Das for the sum of Rs. 3000. On June 10, 1889, he purchased, in his own name, the decree held by Fateh Chand for the sum of Rs. 12,842.2. He thus became the sole creditor of Sardar Khans estate. He died on July 22, 1893, and the present respondents are two of his sons and the representatives of a third son. The fourth son, Niaz Muhammad Khan, who, as has already been stated, is the husband of the appellant, instituted the present suit on behalf of his wife, then a minor of fourteen years of age, on September 21, 1898. The object of the suit is to obtain a declaration that two decrees and three sales in execution affecting her share in her fathers estate are invalid as against the appellant, who was a minor and not legally represented in the proceedings from which they resulted; and, for the same reason, that the submission to arbitration and consequent award, reducing her share from three to two and a quarter biswas, are not binding on her. It was not seriously contended before their Lordships that these arbitration proceedings, so far as the appellants interest is concerned, could be supported. It was not seriously contended before their Lordships that these arbitration proceedings, so far as the appellants interest is concerned, could be supported. She was then about four years of age, and her consent seems to have been taken for granted to what was no doubt considered a fair family arrangement. But it has never been ratified by her, and is inoperative as regards her interest in her fathers property. It is true that in the award her sister Ulfat-un-nisa is described as acting " for herself and as guardian of Abdul Majid Khan and Rashidan, minors "; but at the date of the award, January 12, 1889, an application was actually pending in her name in the Court of the District Judge of Meerut for a certificate of guardianship of these minors, and this application was rejected by the above-mentioned order of April 13, 1889. The statement in the award was therefore unjustified, and the appellant is entitled to the declaration which she seeks, that the award is a nullity as far as she is concerned. Mauladad Khan, as has already been stated, had in 1889 got into his own hands all then existing claims against Sardar Khans estate, and after a short interval he proceeded to realize them. On April 23, 1891, he applied for execution of Fateh Chands decree, and in his application the appellant is described as "Musammat Rashidan, minor, under the guardianship of her sister, Musammat Ulfat-un-nisa." On May 16, 1891, a similar application was made, in the name of his four sons, for execution of Sant Lals decree, and in it the appellant is described as " minor .... under the guardianship of Mauladad Khan," and there is no room for doubt that, though the sons were the nominal applicants, Mauladad was the person really interested in the application. In the sales which followed on these applications the decree-holders were in both cases the purchasers. On May 26, 1891, Mauladad brought a suit to recover interest on the mortgage which he himself held, and in the plaint the appellant is described as "under the guardianship of her sister Ulfat-un-nisa," who, he states, Law Rep. 36 Ind. App. 168 ( 1908- 1909). On May 26, 1891, Mauladad brought a suit to recover interest on the mortgage which he himself held, and in the plaint the appellant is described as "under the guardianship of her sister Ulfat-un-nisa," who, he states, Law Rep. 36 Ind. App. 168 ( 1908- 1909). Musammat Rashid-Un-Nisa V. Muhammad Ismail Khan 77 is " certificated guardian of her person," and " has been made guardian ad litem." In this case the decree was made in the absence of both the female defendants. No step appears to have been taken to enforce the bond to Achal Das until after Mauladads death, which occurred on July 22, 1893. On January 4, 1894, his four sons put the bond in suit, and obtained an ex parte decree on August 28, 1894. In this ease also the appellant is described as "under the guardianship of her sister," who, by order of the Court dated March 10, 1894, was appointed guardian ad litem. The possessory mortgage in favour of Mauladad Khan is admittedly still in force. The learned Subordinate Judge found that the proceedings impeached in the plaint failed as against the plaintiff (appellant) because she was not properly represented in them. He held that Ulfat-un-nisa, as a married woman, could not have been appointed guardian ad litem, and that Mauladad, whose sons were merely benami purchasers on his behalf, had an interest adverse to that of the minor, and was therefore disqualified. The High Court on appeal set aside his decree, and dismissed the suit upon the ground that" the decrees upon which the execution proceedings were founded are not in any way impeached in the suit, nor could they be. The impeached transactions were proceedings on those decrees in execution, and, this being so, it was the proper course for the plaintiff, if she had any objection to make to the execution of the decrees, to raise these objections under the provisions of s. 244 of the Code of Civil Procedure, and not by a separate suit." With all respect to the learned judges of the High Court, their Lordships are unable to agree with this conclusion. Sect. 244 of the Civil Procedure Code applies to questions arising between parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with the provisions of the Code. Sect. 244 of the Civil Procedure Code applies to questions arising between parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with the provisions of the Code. Their Lordships agree with the Subordinate Judge that the appellant was never a party to any of these suits in the proper sense of the term. Her sister Ulfat-un-nisa was a married woman, and therefore disqualified under s. 457 of the Code from being appointed guardian for the suit, and Mauladads interest was obviously adverse to that of the minor. An ingenious argument was put forward by counsel for the respondents to the effect that as s. 53 of the Guardians and Wards Act (Act VIII. of 1890) gives a preference to the appointment of the guardian of the person of a minor as guardian for the suit, and as Ulfat-un-nisa was guardian of the person of her minor sister, she could properly have been appointed her guardian ad litem in these proceedings. But this argument is open to the obvious objection that the later enactment leaves s. 457 of the Code untouched, and that the effect of the two statutes read together is that a proper guardian of the person of a minor may, if properly qualified, be preferred as his or her guardian ad litem. For these reasons their Lordships will humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court should be discharged with costs, and that, subject to the payment or allowance on account by the appellant of any sum that may be found to be due by her in respect of the possessory mortgage of May 18, 1886, the decree of the Subordinate Judge should be restored. The respondents must pay the costs of the appeal.