Courtney-Terrell, C.J:— This is an appeal from an order of the Subordinate Judge of Bhagalpur dismissing a petition of one Punyabrata Das purporting to be launched under Sections 47 and 151 and O. 9, R. 13 of the CPC, in the course of execution proceedings to set aside a final mortgage decree on the ground that the decree so passed was null and void, the main contention being that the decree had been passed against a dead man and that the suit in which the decree was passed had abated. The material facts are as follows: The petitioner, Punyabrata Das, who is the appellant before us, is the son of one of five brothers who were in turn the sons of one Ramlal Das. The petitioner's father died in circumstances which I will mention later in the year 1930. He had at one time a brother but that brother died long ago. The petitioner's father, the eldest of the five brothers, Babu Parmananda Das, on 9th March 1910, entered into a marriage under the Special Marriage Act of 1872 and on 2nd October 1913 the appellant was born. On 10th December 1913 the mortgage bond in question was executed by the appellant's father together with his four younger brothers and the appellant and the brother who has since died, they acting through their father as guardian. The mortgage was for a sum of Rs. 4,500 with the object of satisfying certain family debts and the security given in the mortgage was a certain family house in Bhagalpur. Some time after that the appellant's father who seems to have been an invalid and apparently not responsible for his actions vanished and was afterwards found to have died at Hardwar on 25th May 1930.

2. In the year 1928, the mortgagee started a suit to enforce the mortgage. Various attempts were made to serve the appellant's father and after these attempts on 21st January 1929, the Court accepted the service which had been attempted as valid and there was an adjournment of the case until 31st January 1929, for the appointment of a guardian for the infant appellant. A certain pleader guardian, Babu Upendra Narain, was ultimately appointed but nevertheless, in spite of various pleadings that were put in, amongst them a pleading by the pleader guardian that the loan was contracted by the father without necessity, a preliminary decree was passed on 28th May 1929. In the course of time there was an application for a decree absolute and on 5th July 1930, a final decree was drawn up.

3. In July 1930 there was an application for execution, and notice under O. 21, R. 66, was directed to issue. On 16th March 1931 the sale was held. There was a proceeding under O. 21, R. 90 but at that time the pleader guardian does not seem to have raised any point to the effect that the decree was a nullity and on 16th May 1931, a compromise petition was filed and the guardian obtained leave, of the Court to assent to the compromise on behalf of the minor. This petition is now launched by the minor who has since attained majority on the following contentions which I will deal with seriatim. In the first place the minor points to the fact that the final decree was passed on 5th July 1930, and whereas one of the defendants that is to say his father, had died a month or so before on 25th May of the same year he contends that the suit had abated as against his father and that the final decree was void. He further points to the fact that no application was made to substitute the heirs of the deceased man and to bring them on the record in that capacity. Now the rule which is applicable is O. 22, R. 4 which is perfectly specific in its terms and lays down the circumstances in which, in case of death, substitution is required. The rule is as follows:

“(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies, and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.”

4. Therefore in order to ascertain whether the rule is applicable to the case the first matter to be decided is whether the right to sue had or had not survived against a surviving defendant. It is admitted that the sons of the deceased man were already on the record as defendants on their own behalf and it is complained that no attempt was made to substitute them or the appellant by himself or to bring his mother who it is said is his natural guardian upon the record, but the position is that the deceased man and his son were members of a Hindu joint family and the right to sue the father survived against the surviving defendant. It was not a case of succession if he were a member of a Hindu joint family at the time, a point which I will discuss in a moment. But taking it for granted for the purpose of this point that he was joint with his father the cause of action by the plaintiff survived against the surviving defendant notwithstanding that he was on the record in another capacity. The case of Jungli Lall v. Laddu Ram Marwari (1) referred to in the course of the argument, which was said to support the contention of the appellant that the suit had abated against him was a case which was decided by a Full Bench of this Court but according to the reported facts the mortgage suit was launched against two brothers jointly as coparceners in the property mortgaged and it is true that one of the coparceners died before the final decree was passed. But the persons who should have been substituted for the deceased as defendants were at that time not on the record at all and they were therefore not co-defendants and there was no question of the right to sue surviving against a surviving defendant. The facts there were of an entirely different character. Here the appellant was on the record, he was a co-defendant and by reason, as I shall show presently, of his being a coparcener with his father the right of the plaintiff to sue survived against the appellant.

5. It is contended that inasmuch as the deceased father had married under the Act of 1872 and inasmuch as that Act had itself been amended by the Act of 1923, the effect of the amendment is to make the entire Act, including the sections added by amendment, take effect as from the date of the original Act in 1872; that the marriage of the appellant's father was governed by the new sections introduced by amendment and accordingly that the succession to the property was no longer by right of survivorship but was governed by the Succession Act. Upon this argument is based the contention with which I have already dealt that the suit had abated because there was no survival of the cause of action. This point is comparatively simple. Under the Act of 1872, a person who is not a Hindu and not a Mahomedan and not a Jew (indeed the Act seems to have applied to a very small class of persons such as agnostics) a marriage might be contracted under the provisions of the Act. The question arose in a great number of cases after that Act as to what was the right of succession enjoyed by the offspring of such a marriage when the parents had before the marriage been Hindus. It had been argued in those cases that as the parents by taking advantage of the provision for marriage must have declared themselves as no longer Hindus the ordinary Mitakshara or other Hindu law for the sharing of the property after the death of the married person could no longer be applicable.

6. But the Courts nevertheless held that notwithstanding that the Hindu person who was married had for the purpose of the marriage abjured his religion he had not abjured and could not abjure the personal law applicable to him in the matter of property and therefore one who was a Hindu but who had contracted a marriage under the provisions of the Act remained a Hindu in so far as the distribution of his estate was concerned. The marriage of the appellant's father took place while that was still the law. Consequently directly the appellant was born whatever may have been the position of his father—it is said that he was of the Brahmo persuasion and not a Hindu—in contracting the marriage and cutting himself off from the religion of Hinduism he did not cut himself off from the personal law applicable to him as a member of a Hindu joint family and his son therefore was born into the world with the rights of property which are enjoyed by every member of a Hindu coparcenary and accordingly on the death of his father the Hindu family was then properly represented by the son who took by survivorship and not by succession.

7. By the Act of 1923, the Act of 1872 was amended and by S. 24, it was laid down that in the first place a person might contract a marriage under the Act even if he did profess the Hindu, Mahomedan or other religion and that the effect of contracting a marriage in that way would be that his property should thereafter devolve according to the Succession Act, and not according to his professed personal law. By the same Act by S. 22, which was one of the sections enacted by the amending Act to be added to the original Act the mere fact of marriage constituted a severance from the Hindu family of the person married under the Act. It has been argued by Mr. Bose with some pertinacity that the effect of the amendment of the Act in adding Ss. 22 to 26 was to make the law such as though the added sections had been enacted by the original Act. Therefore it is contended that we must treat those sections as though they had been in force at the date when this particular marriage in question took place. To my mind that contention cannot be supported. It is a fundamental principle that enactments of substantive law, and this is certainly a case of substantive law for it affects the status and rights of property, cannot be considered as retrospective unless the contrary intention is clearly to be found in the Act itself, although matters of adjective law or procedure may properly be deemed retrospective even if the intention to make them retrospective be not expressly found in the legislation itself. The disastrous results of holding these new sections to be retrospective was clearly illustrated by Mr. Sushil Madhav Mullick in his argument in reply. If retrospective the effect would be that whereas a person who had contracted a marriage under the old law of 1872 and having had offspring as a result of such marriage the effect of subsequent legislation would make him subject to a law which he had not contemplated at the time he entered into the marriage and would moreover directly affect the rights of his offspring as coparceners in a Hindu joint family by birth and take away such rights. That could not have been contemplated by the legislature inasmuch as there is no indication whatever that the Act shall be retrospective. Moreover I think the matter is concluded by the wording of S. 24 which states:

“succession to the property of any person professing the Hindu, Buddhist, Sikh or Jain religion who marries under this Act….”

8. The words “who marries” are to my mind synonymous with “who shall marry hereafter” which means from the date of the enactment which brought that section into being and cannot mean “who has married under the Act hereby amended.” To my mind therefore the rights of the appellant after the death of his father are not governed by the date of the death of his father but are governed by the date of the marriage of the father and at that time the sections added by amendment were not in force. Consequently his position was that of a coparcener and he came into the property by survivorship and therefore the cause of action on the mortgage survived against him as one of the co-defendants and the suit has not abated.

9. Then it is argued on the facts of the case that the pleader guardian was appointed without notice to the minor himself. It has long been held and the best authority is the case of William v. Banke Behary Prashad Singh (2), decided by the Privy Council and followed in Pande Satdeo Narain v. Ramayan Tewari (3), that where the Court has in fact had before it a guardian ad litem appointed by the Court and the guardian ad litem has appeared on behalf of the minor and the order has been made against the minor—the Court will not consider as an illegality vitiating the proceedings the want of notice to the minor.

10. It is an irregularity and that irregularity cannot be taken advantage of by the minor unless he can show positive prejudice to the conduct of the proceedings on his behalf. In this particular case the appellant was his only witness and he gave no evidence from which the very faintest inference of prejudice to himself can be drawn. But this is not all. The only other witness in the case was the pleader guardian himself who was called as a witness by the opposite party and there is not one word or suggestion to him from beginning to end in cross-examination that his conduct of the case on behalf of the minor was not otherwise than entirely correct nor was there any suggestion that he might have raised any point which he did not in fact raise. It was said that whereas allegations were made in the written statement put in by the pleader guardian no evidence was tendered to support those allegations. There is not a word of cross-examination addressed to the pleader guardian to suggest that there was any evidence which could have been called which was not called or any argument which could have been raised but was not raised and in my opinion there is no evidence whatever to support any allegation of damage at all. Therefore it seems to me that the petition fails upon every ground and the appeal must be dismissed with costs.

Varma, J.:— I agree.

V.S

11. Appeal dismissed.