Judgement Appeal from a judgment of the Chief Court of Lower Burma (August 1, 1910) reversing a judgment of Robinson J. (January 5, 1909). This was a suit to have it declared that the Goolam Ariff Estate Company, Limited, was not and never had been a company; that the certificate of incorporation granted on April 12, 1902, should be declared void; that no company was constituted thereby ; and that the properties which purported to have been conveyed to the company should be transferred to the persons entitled to the same. The circumstances under which the company was formed are stated in the judgment of their Lordships. The appellants pleaded, inter alia, that the certificate of incorporation was conclusive and that the Court had no jurisdiction to question its validity, nor could the company be wound up save under the Indian Companies Act. It was admitted that the seven subscribers to the memorandum and articles of association had been Goolam Ariff, one of his wives, and one Hashim Cassim Patail, who had been appointed under Act VIII. of 1890 by five separate orders guardian for his five minor children and in that capacity affixed five signatures. Previous to this suit it appeared that one of the respondents had as executor of his fathers will sued the company, two of his fathers widows, and five of his children who were minors for a declaration that a deed of gift in favour of the widows and minors by the father on April 2, 1902, and a conveyance thereof on May 3, 1902, by them or on their behalf to the company were void. This suit was dismissed by the Courts in Burma, and by reason thereof it was contended that the present suit was barred as res judicata, since the validity of the deeds had been established, and the invalidity of the incorporation of the company had been omitted from the issues. On January 5, 1909, Robinson J. dismissed the suit. He observed that " The Indian Companies Act of 1882 follows very closely, and indeed almost verbatim, the English Companies Act of 1862." Sects. 6, 40, and 41 of the Indian Act correspond respectively to ss. On January 5, 1909, Robinson J. dismissed the suit. He observed that " The Indian Companies Act of 1882 follows very closely, and indeed almost verbatim, the English Companies Act of 1862." Sects. 6, 40, and 41 of the Indian Act correspond respectively to ss. 6, 17, and 18 of the English Act, the most material difference being that s. 40 of the Indian Act provides that " It is not his " (the registrars) " duty to require evidence as to whether the several subscribers to a memorandum of associa tion so delivered" (i.e. for registration) " are competent to contract " ; whereas the English Act is silent on the point, nor was any corresponding provision inserted in the later Companies Act of 1900, which provides by s. 1 that the registrars certificate shall be conclusive as to matters " precedent and incidental " to registration. The insertion of the above-mentioned additional provision in the Indian Act the learned judge considered was due to English decisions and " tends to shew that the Legislature did not consider competency to contract such an essential as to justify the opening up of the question of incorporation." After dealing at length with the various and conflicting English decisions and dicta as to the conclusiveness of the certificate of incorporation under the English Act of 1862, he said that, though the question was one of " grave difficulty," " the weight of authority " seemed to him to be in favour of its conclusiveness " in all cases," and he decided accordingly that he had no jurisdiction to question its validity. The further question ab to whether the company was in fact properly constituted did not, therefore, arise, but he expressed an opinion that a guardian can make a contract for his ward. As to the plea of res judicata he held that it was impossible to say that the issue as to the proper constitution of the company was directly and substantially raised or that it was heard and finally decided. The Chief Court in appeal reversed this decree and ordered that a declaration should be made as prayed. As to the plea of res judicata he held that it was impossible to say that the issue as to the proper constitution of the company was directly and substantially raised or that it was heard and finally decided. The Chief Court in appeal reversed this decree and ordered that a declaration should be made as prayed. The Chief Judge, Sir C. E. Fox (in whose judgment Parlet J. concurred), stated that " the essential requirement for the formation of a company, namely, seven or more persons associated for a lawful purpose signing their names to a memorandum of association-, was absent in the case of this company, and prima facie it could not and never did come into existence as a company under the Indian Companies Act, 1882." As to the argument that the certificate of incorporation was conclusive and to the long series of decisions of the English Courts on which it was based, the Chief Judge said it was not for him to say which view of the functions of the certificate in this respect had the weight of authority to support it. He, therefore, did not discuss any of these decisions ; his duty, he said, was to look at the Act itself, which must be the sole guide. Acting on this view, the Chief Judge found that the certificate was conclusive of nothing except that the requirements of the Act as regards registration had been complied with, and that subscription by seven or more persons is not one of the requirements of the Act for registration. He also held that " the fact that the British Legislature in 1900 passed another Act making a certificate of incorporation conclusive not only of registration but of matters precedent and incidental thereto having been complied with " appeared to lend weight to the contention that the view expressed in the " judgments of some learned judges that under the original Act the certificate was conclusive for all purposes" was open to doubt. He held that seven separate persons must sign the memorandum and that this condition is not performed by one person signing his name more than once in different capacities. He agreed with the lower Court that the matter was not res judicata in consequence of the previous litigation. He held that seven separate persons must sign the memorandum and that this condition is not performed by one person signing his name more than once in different capacities. He agreed with the lower Court that the matter was not res judicata in consequence of the previous litigation. Buckmaster, K.C., J. W. McCarthy, and H. E. Wright, for the appellants, contended that the suit should have been dismissed. The certificate of incorporation was in law final and conclusive as to the regularity and validity of all acts antecedent thereto and of all proceedings in the formation and cc constitution of a company. It was contended that the Court had no jurisdiction to go behind the certificate and examine these acts and proceedings. Assuming that it had, those acts and proceedings were shewn to have been valid and regular. The signatures by the guardian on behalf of the infants were acts authorized by the order of the Court appointing him and in any case were within his ordinary powers. The five signatures to the memo randum of association by the guardian in five different legal capacities were sej3arate and valid signatures and with the other two signatures satisfied the provision of the Indian Companies Act (VI. of 1882). If the instruments under which he signed had been five separate powers of attorney from five different persons instead of an order of appointment as guardian, each signature would necessarily have represented a different person, and there was no sufficient distinction between the two cases. Moreover the respondents as plaintiffs in the Courts below were representing and could have no better or higher rights than the testator Hadjee Goolam Ariff. He had formed the company and effected the transfer of properties to it and thereby induced persons to acquire rights therein and to deal therewith, and accordingly he and the respondents as claiming under him were estopped from denying the companys legal and valid existence. The matter in issue which is the respondents ground of attack in the present suit might and ought to have been made a ground of attack in the former suit brought by the respondent executor— see Civil Procedure Code, 1882, s. 13, expl. The matter in issue which is the respondents ground of attack in the present suit might and ought to have been made a ground of attack in the former suit brought by the respondent executor— see Civil Procedure Code, 1882, s. 13, expl. 2—and must be deemed to have been a matter directly and substantially in issue in that suit and by the decree of dismissal to have been adjudicated adversely to the respondents, who are bound thereby and precluded from raising the issue afresh in this suit. The important point in the case is as to the finality of the certificate of incorporation. Act VI. of 1882 was referred to. Sect. 6 shewed that one of the requisitions in respect of registration was the subscribing of their names by the proposed members; s. 40 shewed that their competence to contract was not within the registrars duties to inquire into; s. 41 makes the certificate of incorporation conclusive evidence that all the requisitions of the Act in respect of registration have been complied with. Compare s. 17 o the English Companies Consolidation Act, 1908. The authorities cited were In re Barned’s Banking Co., Peel’s Case (L. R. 2 Ch. 674, 680.); Oakes v. Turquand (( 1867) L. R. 2 H. L. 325, 329, 354, 369); In re Hertfordshire Brewing Co. (( 1874) 43 L. J. (Ch.) 358.) ; In re Nassau Phosphate Co. (( 1876) 2 Ch. D. 610.); In re National Debenture and Assets Corporation ([ 1891] 2 Ch. 505, 517, 519.); Ladies Dress Association v. Pulbrook ([ 1900] 2 Q. B. 376.); In re Laxon & Co. ([ 1892] 3 Ch. 555.); In re Northumberland and Durham District Banking Co.(( 1858) 2 De G. & J. 357.) Bailhache, K.C., and Herbert G. Snowden, for the respondents, contended that the company had never been duly constituted and did not exist at the time that it purported to be registered. It did not consist of seven associated persons and its memorandum of association had not been signed by seven or more persons as provided by s. 6 of Act VI. of 1882. That section must have been complied with before the certificate of the registrar could be conclusive. There must be seven distinct and separate signatures ; here there are only three, for one person had signed his name five times. of 1882. That section must have been complied with before the certificate of the registrar could be conclusive. There must be seven distinct and separate signatures ; here there are only three, for one person had signed his name five times. In each of those five cases the signature was in law that of the guardian and not of the ward, and there was no foundation for saying that because there were five wards there had been five signatures. Reference was made to s. 192 of the English Companies Act, 1862, from which s. 236 of Act VI. of 1882 had been taken; also to s. 17 of the Indian Companies Act, 1908. The Chief Court was right in holding that the certificate of incorporation was not conclusive as to the due constitution of the company; and also that it was not conclusive as to whether the memorandum had been duly signed so as to make the wards contracting parties. Reference was made to In re National Debenture and Assets Corporation ([ 1891] 2 Ch. 505.); In re Northumberland and Durham District Banking Co.(S); Oakes v. Turquand (L. R. 2 H. L. 325, 346, 353, 367, 375.); In re Barned’s Banking Co., Peels Case (L. R. 2 Ch. 674, 681.); Princess of Reuss v. Bos (( 1871) L. R. 5 H. L. 176, 200.); In re Nassau Phosphate Co. (2 Ch. D. 610.); Baroness Wenlock v. River Dee Co. (( 1888) 38 Ch. B. 534.); Salomon v. Salomon it Co. ([ 1897] A. C. 22.); and In re Laxon & Co. ([ 1892] 3 Ch. 555.) The English law in the cases cited did not apply to the question whether the company in this case was duly constituted, for that was governed by the law of India where the contract was that of the guardian only and not that of the ward. Further, the issue in this case was not res judicata, for it was not decided in the former case see Ibrahim Goolam Ariff v. Saiboo. (( 1907) L. R. 34 Ind. Ap. 167.) That suit was not for relief similar to that sought in the present case, and the issue now in question was not one which it was necessary or desirable to raise in the former case. (( 1907) L. R. 34 Ind. Ap. 167.) That suit was not for relief similar to that sought in the present case, and the issue now in question was not one which it was necessary or desirable to raise in the former case. Buckmaster, K.C., in reply, contended that if it were only the contract of the guardian and not of the ward the guardian would only have signed once. He signed five times as representing five different persons who were bound thereby, and the certificate was conclusive as to the validity of the memorandum. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The record in this case is more than ordinarily confused and the story is somewhat complicated. But for the purpose of this appeal the material facts may be stated in a few sentences. One Hadjee Goolam Ariff, a wealthy Mahomedan merchant residing at Rangoon, being dissatisfied with the conduct of his two elder sons, was minded to dispose of the bulk of his property for the benefit of his two junior wives and his five younger children, who were all minors at the time. With this object he applied for and obtained five separate orders under the Act of 1890 for the appointment of one and the same person as guardian of each of his minor children in order that the children by their guardian might accept the benefits which he intended to confer upon them. Being also desirous that his property should remain in one mass, intact and undistributed, he procured the registration of a limited company called the Goolam Ariff Estate Company, Limited. To this company in return for shares there was transferred so much of his property as was retained by him together with the undivided shares in his estate which he had conveyed to his junior wives and his minor children. Hadjee Goolam Ariff died on May 15, 1902, having made his will on the 19th of the previous month. It was proved by his eldest son, Ebrahim Goolam Ariff, one of the executors therein named, on June 23, 1902. From that time to the present there has been continuous and persistent litigation in which Ebrahim Goolam Ariff has endeavoured to set aside the disposition which his father made. It was proved by his eldest son, Ebrahim Goolam Ariff, one of the executors therein named, on June 23, 1902. From that time to the present there has been continuous and persistent litigation in which Ebrahim Goolam Ariff has endeavoured to set aside the disposition which his father made. In all these attempts Ebrahim Goolam Ariff failed except in his appeal in the present suit to the Chief Court of Lower Burma. On that appeal the order was made from which the present appeal to His Majesty has been brought. The object of the present suit was to have it declared that the Goolam Ariff Estate Company, Limited, was not duly incorporated and that the property conveyed to the company should be transferred " to the persons entitled to the same." The validity of the conveyances to the testators junior wives and his minor children had been established in a suit, No. 146 of 1902, which ultimately came before this Board. But the validity of the incorporation of the company had not been expressly determined. The main grounds of defence to the present suit were— (1.) that the certificate of incorporation of the company was conclusive; and (2.) that the question raised by the suit was " res judicata." The questions framed to meet these points were both answered by the Court of Appeal in favour of the plaintiffs. In their Lordships opinion both ought to have been answered in favour of the defendants, who are the present appellants. In dealing with the first question their Lordships will assume that the conditions of registration prescribed by the Indian Companies Act were not duly complied with, that there were not seven subscribers to the memorandum of association, and that the Registrar of Companies ought not to have granted a certificate of incorporation. As a matter of fact a certificate of incorporation was granted. In their Lordships opinion the certificate of incorporation is conclusive for all purposes. The provisions of the Indian Companies Act of 1882 as regards the incorporation of companies are the same as those contained in the Imperial Act of 1862, except that it is specially provided in s. 40 of the Indian Act that it is not the duty of the registrar to require evidence as to whether the subscribers to the memorandum are competent to contract. Probably this provision was introduced because according to the Indian law the contract of an infant is not voidable but void, and it would lead to endless confusion and expense if the registrar were to take upon himself the duty of ascertaining whether the signatories to the memorandum were or were not of full age. In England the question whether the registrars certificate is conclusive was decided so far back as 1867 by Lord Cairns, sitting in the Court of Appeal. In Peel’s Case (L. R. 2 Ch. 674.), after signature and before registration, a proposed memorandum of association had been altered without the authority of the subscribers so materially that, in the words of Lord Cairns, " the alteration entirely neutralized and annihilated the original execution and signature of the document." The company, however, was registered, and the registrar gave his certificate of incorporation. It was objected that the memorandum of association had not been signed by seven or indeed by any subscribers, and that the provisions of the Act had not been complied with. To that proposition Lord Cairns assented. But " the certificate of incorporation," he said, "is not merely a prima facie answer, but a conclusive answer to such objection .... When once the certificate of incorporation is given nothing is to be inquired into as to the regularity of the prior proceedings." That was a plain and direct decision on the point, The observations of Lord Chelmsford in Oakes v. Turquand (L. R. 2 H. L. 325.) are to the same effect. " I think," said his Lordship, “that the certificate prevents all recurrence to prior matters essential to registration, amongst which is the subscription of a memorandum of association by seven persons, and that it is conclusive in this case that all previous requisites had been complied with. ‘Undoubtedly Lord Cairns decision has been cavilled at. For instance, in In re National Debenture and Assets Corporation ([ 1891] 2 Ch. 505.) a judge of first instance declined to treat a certificate of incorporation as con clusive which had been, as was supposed, subscribed by six persons only. On appeal, however, further evidence was admitted and it was found that the memorandum had in fact been subscribed by seven persons. On that ground the Court of Appeal reversed the decision appealed from. On appeal, however, further evidence was admitted and it was found that the memorandum had in fact been subscribed by seven persons. On that ground the Court of Appeal reversed the decision appealed from. But unfortunately the learned judges of appeal made some observations to the effect that if the learned judge had been right as to the facts his decision in point of law would have been correct. These observations were mere dicta, and, besides, the Court of Appeal could have had no jurisdiction to reverse Lord Cairns decision. In their Lordships opinion that decision is of unquestionable authority untouched by any subsequent decision and unimpaired by any dictum in any superior Court, although the Legislature thought fit, no doubt for good reasons, to set the matter at rest by the Imperial Act of 1900, which put the words of Lord Cairns and Lord Chelmsford in a legislative enactment repeated in the Imperial Act of 1968. Their Lordships are prepared to go further and to say that, in their opinion, even if there were no authority to guide their decision, the matter would seem to them to be absolutely plain on the words of the Act. The use of the word " otherwise " in s. 6 shews that the statutory condition that the memorandum of association must be signed by seven persons is as much a condition of registration as any other requisition to be found in the Act which is preliminary to registration, and apparently essential. This view is sufficient to determine the case in favour of the appellants, but inasmuch as the question of res judicata was very fully argued their Lordships do not think it right to abstain from dealing with it. Sect. This view is sufficient to determine the case in favour of the appellants, but inasmuch as the question of res judicata was very fully argued their Lordships do not think it right to abstain from dealing with it. Sect. 13 of the Code of Civil Procedure of 1882 enacts that " No Court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court of jurisdiction competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court." Then explanation 2 of that section declares that " Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." It was admitted by the learned counsel for the respondents that the alleged invalidity of the incorporation of the Goolam Ariff Estate Company, Limited, might have been made a ground of attack in the suit No. 146 of 1902, in which the validity of the dispositions made by Hadjee Goolam Ariff was attacked. That it ought to have been made a ground of attack in that suit appears to their Lordships to be equally clear. All the facts on which the present suit is based were known to the plaintiff and are stated at length in the proceedings of the former suit. No further evidence would have been needed. Nothing was wanting but the addition of an issue on the point. The case is plainly within the ruling of this Board in the case of Kameswar Pershad v. Rajkumari Ruttunkoer. (L. R. 19 Ind.. Ap. 234.) Their Lordships therefore think that the question raised in the present suit is res judicata, and on that ground, as well as on the ground that the certificate of incorporation is conclusive, their Lordships think that the suit fails and ought to be dismissed. Their Lordships are therefore of opinion that the appeal ought to be allowed and the suit dismissed with costs both here and below, and their Lordships will humbly advise His Majesty accordingly.