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Secretaries to the Government of India (but not without such consent), be sued in any competent Court.
(2) Such consent may be given with respect to a specified suit or to several specified suits, or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the Prince, Chief, Ambassador or Envoy may be sued ; but it shall not be given unless the Prince, Chief
, Ambassador or Envoy(a) has instituted a suit in the Court against the person desiring to sue him, or
(6) by himself or another trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immoveable propery situate within those limits and is to be sued with reference to such possession or for money charged on that property.
(3) No such Prince, Chief, Ambassador or Envoy shall be arrested under this Code, and, except with the consent of the Governor-General in Council certified as aforesaid, no decree shall be executed against the property of any such Prince, Chief, Ambassador or Envoy.
(4) The Governor-General in Council may, by notification in the Gazette of India, authorize a Local Government and any Secretary to that Government to exercise, with respect to any Prince, Chief, Ambassador or Envoy named in the notification, the functions assigned by the foregoing sub-sections to the Governor-General in Council and a Secretary to the Government of India, respectively.
(5) A person may, as a tenant of immoveable property, sue, without such consent as is mentioned in this section, a Prince, Chief, Ambassador or Envoy from whom he holds or claims to hold the property.
This section has been substituted by Act VIII of 1888, section 30. It applies to 'H. C. and P. S. C. C.
Compare section 2, Act XIII of 1863, and the case of Begum Bibee vs. The King of Oudh, 11 W. R., 116.
The Rajah of Tipperah is subject to the Courts of British India in respect of the lands held within it, otherwise not, except in the cases mentioned in this section-Bir Chunder vs. Ishan Chunder, 3 C. L. R., 417; and he may institute a suit in his own name through his recognized agent-Beer Chunder vs. Ishan Chunder, I. L. R., 10 Cal., 136 ; see also Beer Chunder vs. Raj Coomar, I. L. R., 9 Cal., 535.
As to the Raja of Cherraponjee, see Hajon Manik vs. Bur Sinj, I. L. R., 11 Cal., 17.
The Desai of Patadi is a ruling Chief within this section-Kambhai vs. Himatsangja, I. L. R., 8 Bom., 415.
Immoveable Property.-A suit to have maintenance charged on an estate is not a suit for immoveable property-Beer Chunder vs. Raj Coomar, 12 C. L. R., 473 I. L. R., 9 Cal., 535; compare Mahalakhsmamma vs. Venkataratnamma, I. L. R., 6 Mad., 83, p. 87.
434. A Sovereign Prince or ruling Style of Princes and Chiefs as parties to Chief may sue, and shall be sued, in the
name of his State : Provided that in giving the consent referred to in the last foregoing section the Governor-General in Council or Local Government, as the case may be, may direct
, that any such Prince or Chief shall be sued in the name of an agent or in any other name.
This has been newly inserted, and the former section has become section 229B. (supra).-See Act VII of 1888, sections 39 and 40.
Description.-The State should sue by the name by which it has been recognized by this country. In a monarchy all the public rights and interest of the nation are vested in, and represented by, the monarch ; in a republic, they are the property of the State. Hence, in the former case, the suit should be entitled "The Emperor of Austria vs. A”-; or, "The King of Spain vs. B." ; in the latter, the name of the State must be used, and the plaint should describe the case as “ The United States of America vs. A”United States of America vs. Wagner, 2 Ch. App., 582.
CHAPTER XXIX. SUITS BY AND AGAINST CORPORATIONS AND COMPANIES. 435. In suits by a Corporation, or by a Company autho
rized to sue and be sued in the name of an Subscription and verification of plaint. officer or of a trustee, the plaint may be subscribed and verified on behalf of the Corporation or Com. pany by any director, secretary or other principal officer of the Corporation or Company, who is able to depose to the facts of the case.
Act VIII of 1859, section 26. This section applies to H. C. and P. S. C. C.
Plaints. In all suits by or against a Corporation or any Company authorized to sue and be sued in the name of an officer or trustee, the name of the Corporation or the names of the officers or trustees of the Company shall be inserted in the plaint as plaintiff or defendant, as the case may be--Ram Doss vs. Stephenson, 10 W. R., 366; it cannot be sued through its agent-Nubeen Chunder vs. Stephenson, 15 W. R. 534; Campbell vs. Jackson, I. L. R.. 12 Cal., 41. In cases of an unincorporated or unregistered Company, the names of individuals must be given, if known; if not, the plaintiff should sue the Company by the name under which it carries on business, stating his inability to describe them better-Koylas Chunder vs. Ellis, 8 W. R., 45. Such a Company cannot sue in its own name by its secretary-The Mhd. Association vs. Baksh Ram, 1. L. R., 6 Alla., 284.
Where the actuary of an Insurance Company, established in London by Act of Parliament, which gave him the privilege of suing there on behalf of the Company, sued in India, it was held, though the Act did not extend to this country that he might sue, inasmuch as the insured must be assumed to have notice of the Act under which he could sue and be sued, and the contract might be considered as in effect made by aim only-Jones vs. Tagore, Fulton, 388.
Corporation. -As to the attributes of a Corporation, see The Cantonment Committee vs. Barjorji, I. L. R., 14 Bom. 286, p. 289.
Relief. As to the remedies against a Corporation, compare Glossop vs. Heston Board, 12 C. D.; 102 ; and The Municipal Commissioners of Madras vs. Branson, I. L. R. 3 Mad., 20.
Plaint.-Where a suit is preferred by a Corporation or registered Company, the plaint may be verified by any principal officer having a knowledge of the facts. In a suit against a Corporation, interrogatories may be delivered, with the sanction of the Court, to any of its officers-Section 124, ante ; Wilson vs. Church, 9, C. D., 552.
436. When the suit is against a Corporation or against Service on Corpora
a Company authorized to sue and be sued tion or Company. in the name of an officer or of a trustee, the summons may be served
(a) by leaving it at the registered office (if any) of the Corporation or Company, or
(6) by sending it by post in a letter addressed to such officer or trustee at the office (or, if there be more offices than one, at the principal office in British India) of the Corporation or Company, or
(c) by giving it to any director, secretary or other principal officer of the Corporation or Company;
and the Court may require the personal appearance of any director, secretary or other principal officer of the Corporation or Company who may be able to answer material questions relating to the suit.
Act VIII of 1859, sections 45, 63. This section applies to H. C. and P. S. C. C.
An executive engineer of a Railway Company is not an officer within para. (c) on whom service may be made-Hanlon vs. The India Branch Railway Comi Hyde, 197.
executor or administrator, when the conRepresentation of beneficiaries in suits
tention is between the persons beneficially concerning property interested in such property and a third per
son, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made such parties.
15 and 16 Vict., 86, s 42. Judicature Acts, Order 16, Rule 7. This section applies to H. C. and P. S. C. C.
And a Third Person.-If beneficiaries are added a few of them may be made to represent the whole body-Gas Light and Coke Co. vs. Tovse, 35 C. D, 519, p. 526. It seems to apply to cases in which the contention is between the persons beneticially interested on the one hand, and a stranger on the other, and not to any contention between the beneficiaries themselves-Hamond vs. Walker, 3 Jur. N. S., 686.
Trustees Sufficient.-In England a bare trustee, unless for persons under a disability, cannot sustain a petition for adjudication of bankruptcy against the debtorEx-parte Colley, 9 O. D. 307; and in a suit for foreclosure against a trustee, the adult beneficial owner should be made a party-Mills vs. Jennings, 13 C. D., 639, 649 ; see, however, Ardesir vs. Hirabai, I. ì. R., & Bom., 474 ; but a trustee seeking to redeem represents the person beneficially interested--Mills vs. Jennings, 13 C. D., 639; so in a case for partition-Simpson vs. Denny, 10 O. D., 28, or for sale and partition-Stace vs. Gaye, 8 Ĉ. D., 451, the trustee is sufficient ; see also Bulley vs. Bulley, 8 C. D., 479, 489.
As to the position of executors to a Hindu, before the Hindu Wills Act, see Lallubhai vs. Mankuvarbai, I. L. R., 2 Bom., 388.
If one or more trustees will not or cannot sue, they should be made defendantsLuke vs. South Kensington Hotel Co., 11 C. D., 121.
Beneficiaries.-The parties beneficially interested should always be made parties in the cause when the executors or trustees are wholly uninterested in the matter-Clegg vs. Rowland, L. R., 3 Eq., 373 ; or they have from any cause an interest adverse to that of the beneficial owner-Payns vs. Parker, 1 Ch. App., 327 ; Beresford vs. Ramasubba, I, L. R., 13 Mad., 197 ; or refuse to sue-Maldrum vs. Scozen, 56 L. T. Rep., 472; and where one trustee sued another to realize a mortgage-security, the beneficial owners were made parties--Butler vs. Butler, 7 C. D., 120. It has been held that the heirs of a Hindu may sue trustees in respect of a breach of a charitable or religious trust, though they have no interest in the trust--Brojo Mohun vs. Hurrololl, 6 C. L. R., 58. As to claims against executors, &c., see section 44, rule f, ante.
The beneficial owner can sue to get the benefit of a decree obtained by his trusteeJuggobundho Coondoo vs. Nil Comul, W. R., 1864, p. 190.
As to the sale of deceased's farm for rent due by the executor, see Lord Talbot vs. Moran, 8 Q. B. D., 307.
Parties. -See “ JOINT INTEREST " under section 26, ante.
438. When there are several executors or administra. Joinder of executors
tors, they shall all be made parties to a suit and administrators.
against one or more of them : Provided that executors who have not proved their testator's will, and executors and administrators beyond the local limits of the jurisdiction of the Court, need not be made parties.
This section applies to H. C. and P. S. C. C.
The exemption extends only to executors who have not proved their testator's wills, and executors beyond local jurisdiction. If any executor has actually administered, he must be made a party, although he has renounced and disclaimed-Smithby vs. Hinton, 1 Vern., 31.
As to the distinction between the possession of an administrator ad litem, and a general administrator in administration suits, see Dowdeswell vs. Dowdeswell, 9 C.D., 294. 439. Unless the Court directs otherwise, the husband of
a married administratix or executrix shall Husband of married executrix not to join. not be a party to a suit by or against her.
This section applies to H. C. and P. S. C. C.
UNSOUND MIND. 440. Every suit by a minor shall be instituted in his Minor must sue by
name by an adult person, who in such suit
shall be called the next friend of the minor, and
may be ordered to pay any costs in the suit as if he were the plaintiff.
If a minor has a guardian appointed or declared by an authority competent in this behalf, a suit shall not be insti. tuted on behalf of the minor by any person other than such guardian except with the leave of the Court granted after notice to such guardian and after hearing any objections which he may desire to make with respect to the institution of the suit, and the Court shall not grant such leave unless it is of opinion that it is for the welfare of the minor that the person proposing to institute the suit in the name of the minor should be permitted to do so.
This section applies to H. C. and P. S. C. C. The last paragraph has been added by Act VIII of 1890.
Res Judicata.- A minor is as much bound by a judgment in his own action as if he were of full age-Modhoo Soodun vs. Prithee Bullub, 16 W. R., 231. See also Grish Chunder vs. Miller, 3 C. L. R., 17, and he and his property are bound by the decisionBonomallee Kesh vs. Hungshessur, 17 W. R., 492; and he is liable to arrest - Sherafutoollah vs. Adbedoonissa Bibee. 17 W. R., 374 ; and he cannot be heard on the ground of nonrepresentation by the Court executing the decree; but must apply for review or file a regular suit to procure an injunction restraining execution-Nowab Mahomed Nooroollah Khan vs. Har Churn Rai, 6 Alla., 98.
Setting Aside a Judgment.--As to the course which a minor on attaining his majority should adopt to get rid of a judgment prejudicial to his interests, see Dabee Duit Shahoo vs. Subodra Bibee, 25 W. R., 449; Raghubar vs. Bhikya, I. L. R., 12 Cal., 69 ; Venkatachalam vs. Mahalakshmamma, I. L. R., 10 Mad., 272 ; Duji Himat vs. Dhirajram, I. L. R., 12 Bom., 18; Mungniram vs. Gursahai, I. L. R., 17 Cal., 347. As to a compromise, see section 375, ante, and section 162, post.
Parties.- In a suit upon a mortgage, given by a Hindu governed by Mitakshara law sons born since the date of the mortgage are not necessary parties – Doolee Chand vs, Wooma Sunkur, 7 C. L. R., 429; but see Luchmun Doss vs. Giridhur Chowdhry, 6 C. L. R.. 473; I. L. R., 5 Cal., 855.
Description.---The plaint should describe the minor plaintiff as “A B, a minor inhabitant of X, by his next friend C. D, inhabitant of Y, sues E F, &c., and the minor defendant'as“ A B, a minor, of whom C D, inhabitant of Y, is next friend.; See also Mongula Dossee vs. Sharoda, 20 W. R., 48.
Next Friend.-A minor cannot sue alone-Noor Ahmed vs. Lulta, 2 Alla., 189 but by his next friend, who is a species of attorney whose duty it is to prosecute the minor's right-Bama Soonduree vs. Grish Chunder, 3 W. R., Act X, 138; and such a suit may be carried on in formâ pauperis-Misser vs. Mutty Lal, Fulton, 490.' But if the suit has been commenced, and defendant appears and makes no objection, the irregularity cannot be raised after judgment-In re Brocklebank, 6 C. D., 358 ; Kunhammud vs. Kutti, I. L. R., 12 Mad., 90.
A person cannot be made next friend of a plaintiff without his express consentsection 32, ante. He is not a party to the suit, nor can he appeal in his own nameBhobotarini vs. Sree Ram, I. L. R., 9 Cal., 629, and his duty ends with final judgmentthe object of his appointment being to have some person before the Court liable for costs, he incurs no greater responsibility-beerreeballa vs. Chunder Kant, I. L. R., 11 Cal., 213 ; see form in Saddasook Koolarig vs. Ram Chunder, I. L. R., 17 Cal., p. 631, and no other decree can be given against him personally-Brojo Mohun vs. Roodronath, 15 W. R., 192; nor can he execute a decree after the minor's decease-Hulodhur Roy vs. Judoonath, 14 W. R., 162.
Certificate.-By section 3, Act XL of 1858, no person in Bengal was entitled to institute or defend any suit connected with the estate of a minor, unless he had obtained a certificate under the Act, or the leave of the Court in which the suit was pending. But the next friend was entitled to sue for partition in the minor's name without permis. sion where the minor was a member of a joint Mitakshara family, and Act XL of 1858 did not apply-Gourrh Koeri vs. Gungadhur, 4 C. L. R., 398 ; I. L. R., 5 Cal., 219 ; see, however, Doorga Pershad vs. Kesho, 9° Ind. App., 27; and the remarks on it in Narsingrao vs. Venkaji, I. L. R., 8 Bom., 395 ; Babaji vs. Sheshgiri, I. L. R., 6 Bom., 595. A similar Act, Act XX of 1864, was in force in Bombay. And it was held that a widow suing to have charge of property in trust for her minor of greater value than Rs. 250,