Manohar Lall, J.:— This is an appeal by the defendants who have been ordered to render accounts to the plaintiff for the period during which the guardians were in charge of her estate during her minority in the following circumstances.

The plaintiff was left a widow at the age of 12 or 13 on the death in 1926 of her husband, Rai Bahadur Gobindlal Sijuar, who left a married daughter, Srimati Mani Devi (defendant no. 1), by a predeceased wife. Her husband is Babu Narain Lal Katariar, defendant no. 7. The plaintiff is the daughter of Babu Gobind Lal Pathak, defendant no. 2 in the action. In the year 1927 an application under the Guardians and Wards Act was made by Babu Gobind Lal Pathak that guardians should be appointed of the person and property of his minor daughter. By an order, dated the 17th January, 1929, the father and the daughter, that is to say defendants nos. 2 and 1, were appointed guardians in respect of the property of the minor and they were both directed within one month to furnish security to the extent of Rs. 50,000 with two sureties for the same amount (see order no. 106, exhibit 6, part III, page 11). On the 7th April, 1929, the security bond, exhibit 4, was executed by the guardians, Babu Gobind Lal Pathak and the daughter Srimati Mani Devi and also by two sureties, Babu Madho Lal Dhenri (defendant no. 3) and Babu Kamla Prasad Ahir (who died in 1931 leaving him surviving his sons defendants 5 and 6—defendants 6(a) to 6(f) are minor sons of defendant no. 5; all these defendants have been impleaded to answer the claim against Babu Kamla Prasad Ahir). On the execution of the surety bond the guardians were entrusted with the due management of the estate of the plaintiff.

As required, by the rules, an auditor is appointed from time to time to check the accounts of the guardians. As early as 1931 the report of the auditor disclosed that the guardians had misappropriated large sums belonging to the estate of the ward. The learned District Judge accordingly called upon the guardians to explain this and observed in his order dated the 16th May, 1931, that although the auditor filed his report on the 7th May, 1931, the guardian had taken no steps whatever to explain away the apparent misappropriation and the discrepancies noted by him. He did not accept the plea of the guardian that he was unable to explain owing to the illness of the manager and directed that the guardian must produce the account books in Court and some responsible officer should appear before the Court and explain away the discrepancies and ordered that “this must be done within 10 days”. The relevant orders from Order no. 141 to Order no. 177 have not been printed nor are they to be found on the record of this appeal, but it may be taken that the guardians instead of complying with the orders of the learned District Judge managed to avoid the investigation till the 9th October, 1931, on which date Order no. 178 was passed by the learned District Judge of Gaya. It states that a petition was presented to him a few days ago by the mother of the plaintiff complaining of the mismanagement of the estate. The minor herself sent one or two letters to the learned District Judge complaining of the mismanagement. It was, therefore, expected that the learned District Judge would take some drastic steps to investigate thoroughly into the serious charges which had been brought against the guardians appointed by him who were also said to have misappropriated about Rs. 70,000 the details whereof are given very clearly in paragraph 21 of the plaint. But instead of doing this the learned Judge was somehow prevailed upon to appoint Babu Mahadeb Chandra Gupta as manager of the estate on a remuneration of Rs. 200 a month which was to be paid to him by the guardians. This arrangement was obviously to the future advantage of the estate as subsequent events have shown. Indeed the plaintiff in paragraph 16 of the plaint distinctly states that the accounts of this manager had been examined by the Government auditors and passed by the District Judge as correct and that she is satisfied with the correctness of these accounts and does not hold this manager or anybody else liable for any accounts whatever during the period he was in charge of the estate. But the learned Judge refrained from making any investigation into the serious charges that had been brought against the guardians by the auditors. All that he says in that order is:

“I wanted to go into these matters but unfortunately the parties have amicably agreed upon a scheme by which the court has been requested to appoint a manager on behalf of the estate. It is also suggested therein that Babu Mahadeb Chandra Gupta may be appointed Manager subject to the orders and superintendence of the court. I think it is desirable for the ends of justice and proper administration of the estate that a manager should be appointed by the court and I do accordingly appoint Babu Mahadeb Chandra Gupta as such manager to administer the estate. He will be an officer of the court subject to the orders and superintendence of the District Judge and receive a remuneration of Rs. 200 per month from the guardians as agreed upon by the parties. He will exercise powers as noted in the petition filed and such other general powers as may be necessary for the efficient discharge of his duties in administering the estate. He should forthwith prepare an inventory in the presence of the guardians or their agents in order to understand what the present position of affairs is. I am constrained to pass the order because from the auditor's report I find that the conditions are not as they should be.”

I regret to observe that the learned District Judge failed in his duty to protect the interest of his ward. If he had been at all careful this long litigation would have been avoided and the guardians of the estate would have immediately been called upon to pay over the large sums which were reported by the auditors to have been misappropriated unless the guardians were able to give satisfactory explanation of the expenditure of any part of these sums.

A perusal of the orders which were passed by the learned District Judge from time to time after the 9th October, 1931, shows that the further conduct of the guardians with regard to the estate of the plaintiff was far from desirable. It shows that Srimati Mani Devi and her husband, defendant no. 7, were putting some obstructions in the preparation of an inventory and specially with regard to the ornaments and valuables. Another learned Judge who succeeded Mr. Chatterji as the District Judge in 1932states in his Order no. 194 of the 6th April, 1932, that Babu Narain Lal, Katariar (that is to say defendant no. 7) should explain what he meant by not helping in the preparation of the inventory and that if he intentionally obstructs in this work the District Judge shall have the painful necessity of removing his wife from the guardianship. Order no. 212 of 17th June, 1932, shows that the guardians were asked to explain about the missing ornaments and also why they sold so many gold mohurs or pieces of gold without the permission of the Court. On the 30th June, 1932, under Order no. 216 this learned Judge observed that the position of the estate was getting worse and that he was still awaiting the report of the auditor on the explanation of the guardians on the missing vouchers detected by him at the first audit and also regarding the missing ornaments and gold mohurs. On the 29th August, 1932, the mother of the minor put in a petition complaining that the auditor's report disclosed that the property guardians had misappropriated large sums of money and that necessary steps should be taken against the guardians. Mr. S.K Das was succeeded by another learned District Judge. Apparently taking advantage of this change of the incumbent, the guardians put in an application purporting to be on behalf of the minor that she should be declared a major as she had then attained majority. This petition was supported by an horoscope in order to show that the age of the minor was wrongly stated in the original application for guardianship. The guardians had no objection to her being declared a major and indeed her father was one of the guardians who stated in his deposition in Court that the horoscope which he was then presenting in support of the so called correct age of the minor was discovered only a few months ago from inside the box of the deceased husband of the plaintiff. The learned District Judge, however, was not satisfied with this explanation and refused to hold that the age of the minor as given in the original application was incorrect, and by an Order, dated the 25th March, 1933, he held that the minor will not attain majority till the 16th October, 1934, but unfortunately he did not pass any order regarding the alleged misappropriation by the guardians which was discovered by the auditors in 1931 beyond stating that as the Government auditor was going to audit the accounts of this estate further orders will be passed after the Court had received the report. Nothing further appears to have been clone till November, 1934, when the minor, it will be noticed, had already attained majority. On the 30th November, 1934, the minor put in a petition that her guardian Srimati Mani Devi will not be discharged till she has rendered account to the satisfaction of the Court—the other guardian was her own father. On the 8th December, 1934, the learned Judge who had succeeded to the office in November, 1933, ordered that the estate should be handed over to the plaintiff but he was careful to observe that this order will not be understood to discharge the guardians in respect of the period for which they were guardians. It will be recalled that on the 29th August, 1932, the mother of the minor had put in an application asking that necessary steps should be taken against the guardians for their having misappropriated sums as found by the auditor. She had also asked that the property guardians should be ordered to deposit the V balance due from them as found by the auditor. She had also complained about the misappropriation of certain moveables by these guardians. This application came to be disposed of on the 25th November, 1936, that is to say more than four years after it had been filed and more than two years after the minor had attained majority. This is a regrettable state of affairs and once more establishes the truth of the remarks which I made a few years ago in Jagdamba Prasad Lalla v. A nodi Nath Roy. I observed at page 483: “A mere perusal of the list of the so called investments and expenditure by the minor's mother amounting to Rs. 2,56,165 shows how unsatisfactory the working of the Guardians and Wards Act has proved in practice. The District Judges have no time whatsoever in exercising proper control over the guardians whom they appoint under the provisions of the Act. Most of the expenditure is never scrutinised by the District Judge, the guardians are at liberty to put down the disbursements in any manner in which they like provided that some sort of voucher, is produced or an affidavit is filed which is usually in an irregular form. It is the duty of the Legislature to intervene and make some drastic changes in this Act so that proper supervision and control may be exercised over the guardians in the real and effective interest of the minor”. The District Judges are so heavily worked that it is impossible for them to devote their time and attention in a proper manner to the affairs of the wards which are placed in their hands. Giving full allowances for the over-engagement of our District Judges in criminal work, I find no justification for this scandalous delay which occurred in this case in disposing of the application of the 9th August, 1932. I have already observed that I can find no justification for the order passed by the learned District Judge on the 9th October, 1931, by which he shelved an enquiry into the conduct of the guardians who had been found by the auditors to have misappropriated about Rs. 70,000—the same course was adopted by another learned Judge on the 25th March, 1933.

To resume, the learned District Judge by order, exhibit 7, part III, page 35, dated the 25th November, 1936, held that the proper course for the applicant was to have asked for an assignment of the security bond under section 35 of the Guardians and Wards Act so that a regular account suit can be brought against the guardians. The learned Judge took the view because he thought that the correctness of the accounts could only be investigated thoroughly by a commissioner empowered to take evidence, but that was a matter outside the scope of his power under section 34(d) of the Guardians and Wards Act. The learned Judge also thought that the assignment could not be made after the ward had attained majority. In my opinion the learned Judge was wrong in his view on both these points. The result was that he rejected the application of the mother of the plaintiff.

The plaintiff filed the suit giving rise to this appeal on the 16th November, 1937, in which she prayed that a preliminary decree for accounts be passed against the two ex-guardians, the surviving surety and the heirs of the deceased surety and against defendant no. 7, the husband of the defendant no. 1 who was said to be the de facto guardian and in actual possession of her estate during the period of her minority. No allegation was made in the plaint that she had obtained any assignment from the District Judge of the surety bond which had been executed by the two sureties. All that she stated is given in paragraph 48 in these words:

“That the plaintiff begs to file a certified copy of the security bond along with the plaint and the original bond will be filed in this suit after the same is received from the District Judge.”

It would appear however that before the actual filing of the plaint the plaintiff applied to the District Judge for the assignment of the surety bond to her. Order no. 435, dated the 29th November, 1937, passed by the District Judge of Gaya (who succeeded Mr. Reuben who passed the order of the 25th November, 1936, just referred to) states in the opening lines that the ex-minor wants to file a suit against the guardian for misappropriation and for this she wants the bond executed by the guardian in favour of the District Judge to be assigned to her. The learned District Judge took the view that all that he had to see was whether it would be reasonable to hold that there was ground for being satisfied that the engagement of the surety bond had not been kept up and was of the opinion that as the matter was already considered by his predecessor by his order, dated the 25th November, 1936, in which he accepted the fact that the guardians were liable to some extent, but the exact extent was to be decided, he held:

“So clearly there is finding that the court was satisfied that the engagement of the bond was not kept up. So I agree with the applicant that the assignment has to be made. In this case the guardians were noticed twice to appear and object against the application. But they have not appeared. Hence the result is that the prayer is allowed.”.

These are in brief the circumstances in which the plaint came to be filed on the 6th of November, 1937, for the reliefs already indicated.

The principal allegations in the plaint after narrating the facts which I have already stated in brief are that out of the two guardians. Babu Gobind Lal Pathak, the father of the plaintiff, is a man of very weak intellect and has no capacity to manage and that full advantage of this was taken by the defendant no. 7, the husband of the other guardian, defendant no. 1, who along with his natural brother defendant no. 3 were the de facto guardians and they thus misappropriated considerable sums of the estate besides being guilty of causing serious loss and damage to the estate (paragraph 19). Paragraph 21 gives the details of the sums said to have been misappropriated in 1929, 1930 and in the first three months of 1931. The cause of action for the suit is stated in paragraph 51 to have arisen during the period of the management of the guardians from 25th January, 1929 to 10th October, 1931, and also on 16th October, 1934, when the plaintiff attained majority. It will be noticed that no complaint is made against the guardians for the period during which Babu Mahadev Chandra Gupta was in charge of the estate as the manager because, as I have already stated, in paragraph 16 of the plaint it is clearly pleaded that the plaintiff is satisfied with the accounts of this period and does not hold him or anybody during the period of his management liable for any amount whatsoever. It must, therefore, be held that the complaint of the plaintiff is that she wants proper account to be rendered to her by the guardians for the period from 25th January, 1929, till the 10th October, 1931 (see also paragraph 12 of the plaint); her definite case is that they have apparently misappropriated about Rs. 70,000 as was found by the auditors' report in 1931 and that unless they are able to account by having properly spent this amount she should be given a decree for this sum against the guardians, actual and de facto, and against the surviving surety and the heirs of the deceased surety.

The defence to the action was that the surety bond executed by Babu Kamala Prasad Ahir came to an end with his death and, therefore, his heirs are not liable. On behalf of the sureties it was denied that there was any mismanagement or any misappropriation by the guardians; in other words that there was no breach of any condition of the surety bond. They also pleaded limitation. The written statement of defendants 1, 3 and 7 were practically to the same effect. They denied the allegation of mismanagement and misappropriation alleged in the plaint. They further pleaded that the management of the estate was really done by defendant no. 2 and his wife and that they were wrongly impleaded as defendants. On behalf of defendants nos. 1 and 2 it was also alleged that the claim of the plaintiff was barred by limitation because she attained her majority two years before the age given in the guardianship petition. Defendant no. 1 further pleaded that she had nothing whatsoever to do with the estate of the plaintiff, that she was merely a nominal guardian of the person and property of the plaintiff but had no hand whatsoever in the management of her estate as she was a mere pardanashin lady. Defendant no. 2 pleaded on the other hand that on account of his old age and weakness of intellect he did not meddle with the management of the estate and that the real management was in the hands of defendant no. 3 and defendant no. 7, and that he was never consulted.

The learned Subordinate Judge came to the conclusion that the plaintiff was born, in Kartick 1970 Sambat as alleged by her and, therefore, she attained majority on the 16th October, 1934. He also took the view that the suit was within time even if it was held that the plaintiff was born in Kartick 1968 Sambat because it was not governed by Article 89 but by Article 120 of the Indian Limitation Act.

I ought to have stated that the defendants challenged the validity of the assignment of the surety bond in favour of the plaintiff. The learned Subordinate Judge overruled this contention and held that the bond was validly assigned. The learned Subordinate Judge also held that on the evidence he was not satisfied that defendant no. 3 ever managed the affairs of the estate of the plaintiff during the relevant period and accordingly he exonerated him from any liability. But he held that defendant no. 7 was intermeddling with the estate of the plaintiff and should account to her for his acts of mismanagement and misappropriation.

As a result of his findings the learned Subordinate Judge decreed the suit of the plaintiff. He directed that defendants nos. 1, 2 and 7 will render accounts to her for the period during which they were in charge of her estate and that a commissioner would be appointed to ascertain that liability upon this basis that the accounts submitted to the learned District Judge by the auditors will be made available and the parties will be at liberty to show whether these accounts are or are not correct. The suit was also decreed against defendant no. 3 and the heirs of the other surety, Babu Kamla Prasad Ahir, to the extent of the amount mentioned in the surety bond, but only if the sums for which defendants nos. 1, 2 and 7 have been made liable are not realised from them. Costs were decreed against defendants nos. 1, 3 and 7 only.

In presenting this appeal on behalf of the defendants Mr. P.R Das confined his appeal principally to the case of the sureties and it will be convenient to deal with that case first.

He argued that the plaintiff had no cause of action against the sureties firstly because there was no valid assignment, in law, of the surety bond, secondly, that the assignment, if valid, was made after the suit had been filed and, therefore, the plaintiff had no cause of action against the sureties on the date of the suit. He also contended that the suit of the plaintiff was barred by limitation as the conditions in the surety bond had been broken at the latest on the 9th October, 1931, and, therefore, by the operation of Article 68 of the Indian Limitation Act the suit was time-barred.

The validity of the assignment depends upon the interpretation of Order no. 435, dated the 29th November, 1937. It was argued that all that the District Judge said was that an assignment should be made but he did not in fact make the assignment. Attention was drawn to the provisions of section 130 of the Transfer of Property Act which provides that a transfer of an actionable claim, such as the claim on the surety bond in the present case is, can only be made by an instrument in writing. It was urged that the order of the learned District Judge was not an instrument in writing within the meaning of section 130. In my opinion this argument is not sound. Section 2(d) of the Transfer of Property Act clearly provides that the provisions of the Transfer of Property Act shall not apply to any transfer made by an order of the Court. The provisions of section 130 of the Transfer of Property Act, therefore, have no application to the present case. In this case the Court has passed an order which was intended to effect an assignment. The learned District Judge had before him the Madras case to which, he refers in the order. He also says that section 35 provides that the ward will be entitled to sue on the bond only after assignment. The learned District Judge then proceeded to consider whether a prima facie case had been established to satisfy him that the engagement of the bond had not been kept up so that he may accept the prayer of the plaintiff for the assignment of the bond. He then disposed of the matter in the light of, the observation made by his predecessor, Mr. Reuben, in his order, dated the 25th November, 1936, and says that he must hold that the engagement of the bond has not been kept up and therefore he agreed with the plaintiff that the assignment has to be made and says in the end that “the result is that the prayer is allowed”. The prayer was that the plaintiff wants the bond to be assigned to her. In my opinion this order should be interpreted to mean that the learned District Judge intended to effect an assignment of the bond. It is true that there is no assignment in writing signed by the District Judge on the back of the bond but the Court should look to the substance and not to the form of the proceedings. I would, therefore, construe the order to mean that an assignment was effected. But I would desire to impress upon the District Judges the desirability of so conducting their proceedings that no apparent defect may be discovered in the assignment which they intend to effect. It should be clearly stated in such an order that the District Judge has ordered the assignment and it would be still more convenient if the assignment is recorded on the back of the bond as was done in the case of a bond which was considered by this Court in Gauri Lal v. Raja Babu and as was done by the Bombay High Court in the case which went up in appeal to the Privy Council—General Accident Fire and Life Assurance Corporation, Limited v. Janmahomed Abdul Rahim. In this view it is unnecessary to consider the correctness of the decisions which were cited to us in the course of the argument—Sarat Chandra Roy Choudhury v. Rajoni Mohan Roy, Krishna Chettiar v. Venkatachellapathi Chettiar and Ram Saran Das v. Yudhishtir Prasad. I, therefore, overrule the first contention.

It was then argued that the plaintiff admittedly was not the assignee of the bond at the date when she filed the suit and, therefore, the accrual of a subsequent cause of action against the sureties will be of no avail. In my opinion this argument is sound, and must prevail. It is now well-settled that a cause of action must be antecedent to the institution of a suit and cannot even arise from the pleadings themselves see the case of Mahant Gobind Ramanuj Das]. In Lalloo Prasad Singh the nephews of a deceased Hindu sought for a declaration of title to the estate of their father's brother on the allegation that they were entitled to it as the next reversionary heirs because the defendant no. 2, the daughter of their deceased uncle, had relinquished all her right, title and interest to the estate. It was found as a fact that at the date of the suit there was no relinquishment by defendant no. 2. It was argued in that case that reliance ought to have been placed upon a subsequent petition filed by defendant no. 2 in which she distinctly disclaimed all rights and interest in the land. But the learned Chief Justice observed at page 229 “as the judgment of the Court must depend upon the rights of the parties at the he when the suit was instituted” the finding of fact that there was no relinquishment must be accepted and the subsequent relinquishment was of no avail.

Reliance was placed by Dr. Mitter on behalf of the respondents upon the case of Maina Kom Hari Tarde where it was hold that a suit instituted by a minor against a guardian under section 36 of the Guardians and Wards Act, 1890, was not misconceived merely because the leave of the Court was not obtained before the filing of the suit and that it was open, to the Court upon a proper application of the plaintiff to remedy the mistake and to empower the plaintiff to continue the proceedings against the guardian. It will be noticed that in that case the cause of action always was with the plaintiff but the only impediment in his way was that the leave of the Court had not been obtained. The learned Chief Justice pointed out at page 604 that the intention of the Legislature in this Act for obtaining the leave of the Court was for the protection of the guardian and that such a provision does not go to the jurisdiction of the Court and he contrasted this situation with what would have been the position if leave had not been applied for under clause 12 of the Letters Patent in which case the mistake could not have been remedied after the suit had been filed. In the present case so long as the assignment was not made the only person who could sue on the surety bond was the District Judge because it is distinctly provided by section 34(a) of the Guardians and Wards Act that the surety bond shall enure to the benefit of the District Judge. The cause of action arises to the assignee of such a bond after an assignment to him. It may be that the District Judge for some reason would not have thought fit to assign the bond to the plaintiff or he might have assigned it to somebody else. How in such a case an, assignment subsequent to the date of the suit can give an antecedent cause of action against the sureties to the plaintiff it is impossible to discover. For these reasons I am of opinion that the plaintiff had no cause of action on the date of the suit against the sureties.

It was also contended that the suit against the sureties was barred by limitation. The matter is now concluded by the recent decision of their Lordships of the Judicial Committee reported in General Accident Fire and Life Assurance Corporation, Limited v. Jan Mahomed Abdul Rahim. In that case after an administration bond was executed by the widow of an intestate and by a surety in favour of the Registrar of the Bombay High Court in its testamentary and intestate jurisdiction, letters of administration were duly issued to the widow for the use and benefit of her minor sons until one of them should attain majority. The conditions in the bond were in the usual form and it was provided that the obligation thereunder was to be void and of no effect if the widow complied with the conditions therein specified in relation to the administration of the estate. The agent employed by her misappropriated or misapplied the properties of the estate resulting in a loss. The widow died in April, 1929, and the administration bond was assigned in August, 1932, to the eldest son of the intestate after he attained majority in 1931. The suit was instituted by the assignee in November, 1932 claiming from the surety the sums named in the administration bond or a lesser sum as may be found on a proper accounting. It was held by their Lordships that the suit was governed by Article 68 of the Indian Limitation Act, that the condition of the bond was broken at the very latest on the death of the widow and that the assignment of the bond in favour of the plaintiff did not confer a new cause of action to the assignee. Their Lordships approved of the judgment of the appellate Court in Maung San U v. Maung Kyaw Mye and the view taken by Blackwell, J., in Manubhai Chunilal v. General Accident Fire and Life Assurance Corporation, Limited. The view which was taken by Black-well, J., is thus stated by Viscount Maugham, who delivered the judgment of their Lordships at page 427: “In Manubhai's case Blackwell, J., took the view that the bond being within the definition in the Limitation Act, and the action being on a bond subject to a condition, time began to run from the last date on which the condition was broken, and no action could, therefore, be brought after the expiration of three years. In coming to this conclusion he followed the decision of the appellate Court of Rangoon in Maung San U v. Maung Kyaw Mye. Blackwell, J., in an admirable judgment dealt with the effect of an assignment of a bond under section 292 of the Indian Succession Act, and observed that, in his opinion, such an assignment merely deals with the question of title, and confers upon the assignee a right to sue which he would otherwise not have had previously to the assignment, and that the section thus merely entitled the assignee to recover as a trustee for all persons interested the full amount recoverable under the bond in respect of any breach of it”.

To apply this decision to the facts of the present case. Babu Kamla Prasad Ahir, one of the sureties, died in 1931 (see paragraph 5 of the written statement of defendant no. 5 at page 8). This fact was not controverted before us. The suit, therefore, against the heirs of Babu Kamla Prasad Ahir, namely, against defendants nos. 4, 5, 6, 6(a), 6(b), 6(c), 6(d), 6(e) and 6(f) is beyond time, the cause of action against them having arisen at the very latest on the death of Babu Kamla Prasad Ahir.

The cause of action against Babu Madho Lal Dhenri, defendant no. 3, arose when the condition in the surety bond was broken. The plaintiff's own case is that the condition in the surety bond was broken at the latest on the 10th October, 1931, when the estate was removed from the possession of the actual management of the two property guardians and put in the hands of a manager appointed by the District Judge. This is very clearly stated in paragraphs 12, 16, 19, 21 and 51 of the plaint which I have had occasion to refer to already. The plaintiff, in my opinion, has not left any room for any argument that the term of the surety bond was broken at any other period except between the 25th January, 1929, to the 9th October, 1931. The only distinction which was sought to be drawn by Dr. Mitter, who argued on behalf of the respondents, was that the surety bond in the present case was different from the surety bond which was before their Lordships of the Judicial Committee in the case of General Accident Fire and Life Assurance Corporation, Limited, but I am unable to discover any such distinction. The bond is in the usual form which appears to be similar to the one in the case of Manubhai, but it would be proper to reproduce the conditions in the bond, exhibit 4:

“now the condition of the above written bond is such that if the said Gobind Lal Pathak and Srimati Mani Devi do and shall justly and truly account whenever called upon to do so, for what he may receive in respect of the properties of the said Musammat Annapurna Dai and do and shall carefully observe, perform and keep all orders and directions of the said court of the District Judge of Gaya touching or concerning the estate and effect of the said minor and her properties and touching and concerning all such monies and estates as they, the said Gobind Lal Pathak and Srimati Mani Devi shall receive as such guardians as aforesaid and in all things, conduct themselves properly, then the above written bond or obligations shall be void and of no effect, otherwise the same shall remain in full force and virtue.”.

It was not denied that if the guardians had misappropriated the monies which they received as belonging to the estate of the widow, they failed to conduct themselves properly and so the condition of the bond has been broken. But this is exactly the allegation of the plaintiff. The plaintiff's definite case is that the guardians have misappropriated about Rs. 70,000 between January, 1929 and October, 1931. This can only mean that the condition of the bond had been broken in that period. I am, therefore, of the opinion that the suit of the plaintiff is barred by limitation against defendant no. 3 also.

It now remains to consider the appeal on behalf of defendants nos. 1 and 7.

It was argued that the learned Subordinate Judge was wrong in holding that the plaintiff was born in Kartic 1970 Sambat and not in 1968 Sambat, and therefore, the suit of the plaintiff was barred by limitation.

The learned Subordinate Judge did not place any reliance on the evidence adduced on behalf of the defendants and the learned Counsel for the appellants was not in a position to state that the oral evidence offered on behalf of the defendants as regards the age of the plaintiff should be held by this Court to be satisfactory. But he argued that the learned Subordinate Judge should have refused to act upon the evidence of P.W 2 Pandit Sriniwas Sastri as that evidence was inadmissible in law and further that if that evidence was not accepted there was no other satisfactory evidence to support the case of the plaintiff upon whom the onus lay to establish, that she was born in Kartic 1970 so as to claim the benefit of section 7 of the Indian Limitation Act. P.W 2 Pandit Sriniwas Sastri gave evidence to the effect that he had seen the horoscope of the plaintiff at the time of her marriage and that, therefore, he is in a position to say that the plaintiff was born in Kartic 1970 Sambat. The horoscope which the witness is stated to have seen was written by Bisesar Pandey who was dead at the time of his deposition. The horoscope prepared by Bisesar Pandey has not been produced nor was the defendant called upon to produce it. The learned Subordinate Judge thought that P.W 2 was entitled to give secondary evidence regarding the contents of the horoscope when the horoscope was in the custody of defendant no. 1 and was not being produced by her and that there was no doubt that it was not to be expected that the defendant would have produced the horoscope even if she had been asked to produce it. I am unable to agree with this view of the law. Before secondary evidence can be given as to the contents of a document it must be established that the document cannot be produced in Court. The defendant may have thought that the document was irrelevant for the purpose of her defence and was not bound to produce it, but if the plaintiff wanted to give secondary evidence of the contents of the document she should have called upon the defendants to produce it. It was only in case the defendants then failed to produce it that evidence as to the contents of the document would be admissible. Again it has not been established that Bisesar Pandey had any special means of knowing the date of the birth of the plaintiff. It may be that Bisesar Pandey was asked some years later to prepare her horoscope and he was given the date and time of her birth by a person whose name is not disclosed. So that even if Pandit Sriniwas Sastri is correct that he saw the horoscope prepared by Bisesar Pandey stating that the plaintiff was born in Kartic 1970 Sambat, in my opinion, this evidence is in the nature of hearsay evidence. It is also unsafe to rely upon such evidence to hold as a fact that the plaintiff was born in 1970 Sambat. But the matter does not rest here. The learned District Judge of Gaya in his Order no. 290 of the 25th March, 1933, already referred to, had to decide whether he should relinquish the superintendence of the estate by removing the guardians under section 41 of the Guardians and Wards Act. He passed an order on hearing the minor and the guardians in which he held that the plaintiff would attain majority on the 16th October, 1934. This order was passed by a Court of competent jurisdiction and in my opinion is final between the plaintiff and the guardians who were all parties to that order. The order is also strong evidence to establish the truth of the allegation made in the petition for the appointment of a guardian for the plaintiff which was filed in 1927. There is no reason to suppose that a wrong or false age was given in that petition, for these reasons I would accept the finding of the learned Subordinate Judge that the evidence of the mother of the plaintiff should be accepted in this case when she states that her daughter was born in Kartic 1970 Sambat.

Before parting with this question I would like to express my disapproval of the manner in which the learned Subordinate Judge treated the evidence of Babu Lalit Kumar Das, an Advocate, who gave evidence for the defendants as D.W 10. This gentleman's age in 1940 was given at 59 and he was a practising pleader since April, 1919. He says in his evidence that he went to the house of the plaintiff in order to receive a vakalatnama and to get instructions before he filed the petition, exhibit B, in the guardianship case which was rejected on the 25th March, 1933. He says that the lady put her thumb-impression and signature on the vakalatnama in his presence, that her father also attested signature in his presence and that he received instructions for drafting the petition personally from the lady herself, that the contents of the petition were explained to the lady who put her signature on the petition in his presence. He then says that he was satisfied that she put her signature on the petition when she understood its contents. Notwithstanding this very clear evidence the learned Subordinate Judge has chosen to disbelieve it because he says that this witness took the unusual course of going to the house of the plaintiff and staying there for over an hour in order to get the petition typed and to have it signed by her. I do not see anything unusual in this course—it was quite a natural course to take. The Advocate was aged 59 and the lady apparently would have no objection to appear before an elderly man like him. It would have been very unusual if a pardanashin lady of the status of the plaintiff and of her age had gone to the house of an Advocate to give instructions; nor do I see anything unusual in the Advocate's staying in the house of the lady for over an hour. Arrangements had to be made for the interview, instructions had to be taken from the lady and after the Advocate was satisfied that the lady really understood the nature of the transaction a petition had to be drafted and typed out, and then the signature and thumb-impression of the lady had to be taken. This would ordinarily take over an hour. The learned Subordinate Judge then observes that the thumb-impression of the plaintiff on the vakalatnama is not clear. It is not expected that a lawyer would be an expert in taking thumb-impressions. The learned Subordinate Judge also says that the witness omitted to make the plaintiff sign the petition to the effect that she understood its contents, but the learned Subordinate Judge omitted to consider that the plaintiff, herself has not come forward in the witness box to deny this petition which bears her signature or that it was signed by her without understanding its contents; there is no denial that the blurred thumb-mark is not hers. The learned. Subordinate Judge also observes that although the witness knew that Gobind Lal Pathak, the father of the plaintiff, was of weak intellect he did not think it inadvisable to act on his instructions. But the witness took the precaution of taking instructions from the lady herself. As I have stated Just now in the absence of the lady from, the witness-box it is impossible to approve of the language of the criticisms which have been advanced by the learned Subordinate Judge against the evidence of this respectable witness. For myself I am quite prepared to believe the evidence of this witness. It appears to indicate what was normally to be expected in the usual course of such a transaction.

Mr. P.R Das also argued that the suit of the plaintiff was barred by limitation against the guardians because the suit has been brought beyond the period of limitation fixed by Article 89 of the Indian Limitation Act. This argument he advanced in the alternative and can only succeed if it was held that the plaintiff was born in Kartic 1968 Sambat. The learned Subordinate Judge has considered this alternative aspect of the case and applied Article 120 of the Indian Limitation Act so that the suit was not barred even if it was held that the plaintiff was born in Kartic 1968 Sambat. In my opinion the learned Subordinate Judge was right.

Article 89 of the Indian Limitation Act only applies if the suit is by a principal against his agent. It was argued that a guardian is an agent on behalf of his ward and reliance was placed upon the well-known case of Annapagauda Tammangauda v. Sangadigyapa. All that was decided in that case was that where a guardian makes a payment bona fide for the benefit and in the interest of his ward such payment should be held to be a payment by a person duly authorised. The learned Chief Justice observed that such a person is an agent if he acts for the benefit or protection of the property of the ward as provided by section 27 of the Guardians and Wards Act. Attention was also drawn to the provisions of section 21 of the Limitation Act which was amended in 1927. But the amendment in my opinion does not support the argument advanced before us. The amendment would rather show that for the purposes of that section the payment by a guardian must be held to be a payment by an agent duly authorised on his behalf. The Legislature does not enact that for the purposes of the Indian Limitation Act the guardian shall be treated as an agent of his ward. The case of Beti Maharani v. Collector of Etawah, referred to in argument, does not advance the argument any further. In my opinion the guardian is not an agent and the relationship between the guardian and his ward is not that of a principal and agent but is in the nature of a fiduciary relationship as has been held in a number of cases. But even if it is assumed that the guardian was an agent the question arises when did this agency terminate in this case. The agency did not terminate before the 16th October, 1934, because the learned District Judge who was in charge of this estate actually by an order, dated the 25th March, 1933, decided in the presence of the guardians that they will remain as guardians till the 16th October, 1934. Even if therefore it be assumed as a question of fact that the plaintiff was born in Kartic 1968 Sambat, the order of the Court decided that the relationship of guardian and ward would continue between the present plaintiff and her guardian till the 16th October, 1934. The suit was filed on 6th November, 1937, the day that the Court re-opened after the annual Civil Court Vacation.

The result is that there is no escape from the conclusion that the suit of the plaintiff is not barred by limitation whether Article, 89 of the Indian Limitation Act is held applicable or not and whether the plaintiff is held to have been born in Kartic 1968 Sambat or Kartic 1970 Sambat.

No other argument was advanced before us on any other question of fact on behalf of defendants nos. 1 and 7. Defendant no. 2 has not appealed.

It was then argued that the learned Subordinate Judge should not have granted any decree for costs at all at a preliminary stage but should have reserved the determination of this matter at the time of the final decree when it would be found out what sum, if any, was due from the defendants. I am unable to agree with this contention. The defendants vehemently contested the maintainability of the suit of the plaintiff and disputed their liability to account. If they had taken the plea that they had no objection if an account was taken, the matter would have been different, but they denied the very right of the plaintiff to sue as an assignee. They also asserted that the suit was barred by limitation and defendants nos. 1, 3 and 7 denied their liability to account at all. In such a case the defendants should be properly held liable for the costs of the litigation even at a preliminary stage. This view of the matter is clear from a decision of their Lordships of the Judicial Committee in Hurronath Roy Bahadoor v. Krishna Coomar Bukshi, which was very rightly brought to our notice after the conclusion of the argument by Mr. P.R Das.

It was also urged that the learned Subordinate Judge should not have taken Rs. 70,000 as the basis upon which to determine the costs payable by the defendants. This argument is also unsound. It is now decided by a Full Bench decision of this Court that the plaintiff when he brings a suit for account is bound to value his suit tentatively by doing his best to give a fair estimate of the relief which he hopes to obtain, and that he must not fix the valuation arbitrarily in order to avoid payment of the proper court-fees or over-value it. In this case the plaintiff valued the claim at Rs. 70,000. I cannot hold that this valuation was arbitrary because in paragraph 21 of the plaint the plaintiff had ample materials prima facie to claim this sum which had been found by the auditors to have been misappropriated by the guardians. Such being the case the learned Subordinate Judge, in my opinion, was Correct in taking this sum as the valuation of the suit and by calculating costs on that basis.

The result is that I would allow the appeal of defendants 3, 4, 5, 6 and 6 series, that is to say, the appeal of Babu Madholal Dhenri, Babu Biseshar Lal Ahir alias Sundar Babu, Babu Mohan Lal Ahir, Babu Narain Lal Ahir, Babu Ramji Ahir, Babu Shayamji Ahir, Ghasi Babu, Raja Babu, Bindi Babu and Sonu Babu (appellants 2 to 11 in this Court) and dismiss the suit of the plaintiff against them. The plaintiff will pay the costs of this appeal and of the Court below to these defendants appellants, but half the hearing fee in this Court and also in the Court below. The appeal of defendants 1 and 7, that is to say, of Srimati Mani Devi and Babu Narain Lal Katariar (appellants 1 and 12 of this Court) is dismissed with costs.

Harries, C.J:— I agree.

H.R.K

Appeal partly allowed.