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could not sue as next friend without getting a certificate under section 2, Act XX of 1864– Murlidhur vs. Supdu, I. L. R., 3 Bom., 149; Daji Himat vs. Dhirajram, I.JL. R., 12 Bom., 18.
A foreign certificate of guardianship was not sufficient-Maganbhai Purshotamdas vs. Vithoba, 7 Bom., 7; but an order granting a certificate under Act XL of 1858 was, though the certificate ha not been actually taken out-Sahai Nand vs. Mungniram, I. L. R., 12 Cal., 542 ; I. L. R., 17 Cal., 347 ; 16 Ind., App., 195 ; and see Harendra vs. Moran, I. L. R., 15 Cal., 40 ; but without a proper certificate the Courts might refuse to hear even a natural guardian-Lalla Boodhmul vs. Lalla Gowree, 4 W. R., 71.
Permission to Sue.-But Act XX of 1864 did not prevent a person carrying on as next friend a suit for a minor without a certificate--Nag Thakur vs. Madnaji. I. L. R., 8 Bom., 239; if no guardian had been appointed under the Act-Jador Mulji vs. Chhagan, I. L. R., 5 Bom., 306. The same rule was followed under Act XL of 1858–Luchmiput vs. Amir, 1. L. R., 9 Cal., 176, if he had obtained the permission of the Court-Russick Das vs. Preonath, I. L. R., 10 Cal., 102; but the permission need not have been in writingNevraj vs. Muksud Ali, I. L. R., 12 Cal., 131 ; Jogi Singh vs. Kunj Behari, I. L. R., 11 Cal., 809; Durga vs. Nilmoney, I. L. R., 10 Cal., 135; though properly speaking it should be formally recorded as an act of judicial discretion open to appeal-Mrinamoyi Dabia vs. Jogodishure, I. L. R., 5 Cal., 450 ; in the order sheet-Bhaba Pershad vs. The Secretary of State ; Parmeshar vs. Bela, I. L. R., 9 Alla., 509; I. L. R., 14 Cal., 159, and before the institution of the suit-Russick Das vs. Preonath, I. L. R., 10 Cal., 102.
In no case should money decreed be paid to the next friend unless he had obtained a certificate under Act XL of 1858-Khajah Mahomed Khan vs. Mahomed Rajendro Kishore, 2 Sev., 847 ; Janaki vs. Hafiz, I. L. R., 13 Cal., 47, and under Act XX of 1864, the case of a decree being given in favour of the minor the Court appointed an administrator under the Act-Nag Thakur vs. Madnaji, I. L. R., 8 Bom., 239.
Present Law.-Act XL of 1858, and Act XX of 1864 have been repealed by Act VIII of 1890, and the present law is found in the sections of the Code amended by this Act, namely, sections 440, 443, 446, 461 and 464.
Misdescription.-Where a mother sued for the property of her minor son, in her own name, not even saying she was guardian, and the first Court allowed the suit, but did not expressly sanction it, the Court in appeal could not reverse the decision on the ground that it was not properly laid. Such an objection was considered " as in no way affecting the merits of the case”-Goonoo Monee vs. Ram Kumol, 17 W. R., 144; for if a plaintiff minor has a cause of action no objection to the authority of his next friend will be admitted in appeal-Hurdey Narain vs. Pundit, 11 Ind. App., 26; and where a suit was brought by A for herself and as guardian of B, and the error did not affect the merits of the case, an objection to the form was not listened to in special appeal-Alim vs. Jhalo, I. L. R., 12 Cal., 48.
If a minor has been sued, the suit will not be set aside for a mere misdescriptionJogi Singh vs. Kunj Behari, I. L. R., 11 Cal., 509; Bhala Pershad vs. Ram Sakh Dabi, 1. L. R., 14 Cal., 159; Suresh Chunder vs. Jugut, I. L. R., 14 Cal., 204 ; Natesay Yan vs. Nara Jimmayyas, I. L. R., 13 Mad., 481 ; Hart Saran vs. Bhubaneswari, 1. L. R., 16 Cal., 40; 15 Ind. App., 195. In other cases the Courts have set aside a judgment, even in special appeal, if not properly laid against the minor-Babaji vs. Maruti, 11 Bom., 182; and held that a decree passed under other circumstances would not bind him-Mrinamoyi Dabia vs. Jogodishuri, I. L. R., 5 Cal., 450 ; 5 C. L. R., 361 ; followed in Vishnu vs. Ram Chandra, 1. L. R., 11 Bom., 130; Issur Chunder vs. Nobo Kristo, 7 C. L. R., 407 ; Daji vs. Kashibai, I. L. R., 12 Bom., 18; Ganga Prosad vs. Ambica, I. L. R., 14 Cal', 754; and the purchaser with notice would be compelled to deliver up possession--Jungee Lall vs. Sham Lall, 20 W. R., 120; and this view was to a certain extent up held by the members of the Judicial Committee of the Privy Council, who decided that a suit against a father in his own right and as guardian of his minor son is not a suit against the minor-Narain Mitter vs. Kishen Soondery, 11 B. L. R. (P. C.), 171, 191 ; Shonai Bewa vs. Monoram Mundle, 11 C. L. R., 15; and see Guru Churn vs. Kali Kishen, I. L. R., 11 Cal., 402 ; Ganga Prosad vs. Umhica, I. L. R., 14 Cal., 754; and that the manager of an estate is not the guardian of an infant co-proprietor so as to bind him by a decree-Doorga Persad vs. Kesho, 9 Ind. App: 27; see also Debi Dutt vs. Subodra, I. L. R., 2 Cal., 283. But where a Hindu widow during the course of a litigation adopted a son, but did not put him on the record, it was held that she was justified in pursuing the litigation bond fide for his benefit, and he was bound by the decree-Hari Saran vs. Bhubaneswari, I. L. R., 16 Cal., 40; 15 Ind. App., 195.
Costs.- When a next friend retains an attorney to act for the infant, no contract is created between
the attorney and the infant upon which the attorney can sue the infant for costs-Radhanath Bose vs. Lalloprosunno Ghose, 2 Ind. Jur., N. S., 269; Devkabai vs. Jefferson, I. L. R., 10 Bom., 248, and see Steed vs. Pierce, L. R., 18 Eq., 192; see, however, Watkins vs. Dhunnoo, I. L. R., 7 Cal., 140.
The next friend may be ordered to pay costs, and if so, he cannot levy them from the minor's estate - The Collector of Mymensing vs. Kali Chunder Chowdhry, Š. D., 1st of Sept. 1860 ; see, however, Devkabai vs. Jefferson, I. L. R., 10 Bom., 248 ; but this is not done unless he has instituted a useless suit without due consideration-Kenrick vs. Wood, L. R., 9 Eq., 333; or it is proved that the plaintiff is not a minor-Palmer vs. Walesúy, L. R., 3 Ch. App., 732; and whenever it is possible the Courts will allow his costs out of the infant's estate for any proceeding instituted for the infant's benefit, although unsuccessful, provided he appears to have acted bona fide-Slaines vs. Maddox, Mosl., 319; Cross vs. Cross, 8 Beav., 455; but not otherwise-Geereeballa vs. Chunder Kant, I. L. R., 11 Cal., 213; Devakabai vs. Jetterson, I. L. R., 10 Bom., 248 ; and where a guardian is personally held liable for costs, it should be stated in the decree or order of Court; since ordinarily he is only liable in his representative capacity-Komul Chunder vs. Surbessur Doss, 21 W. R., 298; Omrao Singh vs. Prem Narain Singh, 24 W. R., 264.
Where an action was commenced in the name of a married woman by her next friend who, when challenged, could not produce his authority : Held, that the action should be dismissed with costs to be paid by the solicitors of the next friend-Schjott vs. Schjott, 19 C. D., 94. See“ Court of Wards,' infra.
Minority of English Subjects.- If not domiciled in India is 21 years—Rohilkhand vs. Kumaun Bank I, L. R., 7 Alla., 490.
Minority if Guardian Appointed.-Where a guardian has been appointed before the age of 18 disability extends till the age of 21-Act IX of 1875, section 3, Act VI of 1890, section 52.-Rudrà vs. Bholanath, I. L. R.,
12 Cal., 612. See also Birjmohun Lal vs. Rudra Perkash, I. L. R., 17 Cal., 944.
Evidence of Minority.-The appearance of the alleged minor may be taken into consideration in deciding the question of minority-Khetter Mohan Ghose vs. Ramessur, W. R., 1864, p. 304 ; but it is not evidence of the highest order-Kalee Haldar vs. Sreeram Ghose, W. R., 1864, p. 366.
Where the defendant contended that the suit could not be carried on without a guardian, because the plaintiff was a minor, and the plaintiff failed to prove his majority, and the suit was dismissed : Held, that the Court should have appointed a next friendMoorlee Dhur vs. Nathoonee Mahtoom, 25 W. R., 184.
Limitation.- A suit by a next friend on behalf of a minor is governed by the law of limitation applicable to the minor-Khodabux vs. Budree Narain, I. L. R., 17 Cal., 137; and see Yeknath vs. Waman, I. L. R., 10 Bom., 240. It does not remove his disability-Anantharama vs. Kuruppanan, I. L. R., 4 Mad., 119, which is purely personalBudra Kant vs. Nobo Kishore, 12 c. L. R., 269. Thus, during minority a guardian may make two or more applications for execution, however long the interval between them Mun Mohun Buksee vs. Gunga Soondery, 11 C. L. R., 34 ; 1. L. R., 9 Cal., 181.
Court of Wards.-See Act IX of 1879 (B. C.) A female ward cannot give up her rights in favour of the next heir without the sanction of the Court-Government vs. Monehur Deo, W. R., Sup. No. 39; nor can she bind her estate by debt or mortgageBal Krishna vs. Masuma Bibi, I. L. R., 5 Alla., 142; 9 Ind. App., 182.
Where a suit was brought by the Court of Wards on behalf of the minor Ram Chunder Deo Dhulub Deb," and the officer, who had caused it to be instituted, had left the country, it was held that the suit was wrongly brought, and that no costs could be given against the Court of Wards, or the minor in person, and the defendants were made to pay the costs as they were to blame for allowing it to proceed in an irregular wayBikromajeet Mullo vs. Court of Wards, 21 W. R., 312.
Practice : Wrong Form.-Where a suit is brought in violation of this section, the plaint should be returned-Russick Das vs. Preonath, I. L. R., 10 Cal., 102. 441. Every application to the Court on behalf of a minor
(other than an application under section Applications to be made by next friend or 449) shall be made by his next friend, or guardian ad litem.
his guardian for the suit. This section applies to H. C. and P. S. C. C.
Next Friend, -If a guardian ad litem has not been appointed for a defendant, a next friend can apply to Court-Jotendronath vs. Rajkristo, I. L. R., 16 Cal., 771. 442. If a plaint be filed by or on behalf of a minor
without a next friend, the defendant may Plaint filed without next friend to be taken apply to have the plaint taken off the file, off file.
with costs to be paid by the pleader or other person by whom it was presented. Notice of such
application shall be given to such person Costs.
by the defendant; and the Court, after hearing his objections, if any, may make such order in the matter as it thinks fit.
This section applies to H. C. and P. S. C. C.
Taken off the File. -See Chinnia vs. Bauban Saib, 5 Mad., 433; Radha Kristo vs. Ram Chander, 11 W. R., 300; Beni Ram vs. Ram Lall, 1. L, R., 13 Cal., 189; Rattonbai vs. Chabildas, I. L. R., 13 Bom., 7.
Costs.- The person presenting the plaint is liable for costs when a plaint is filed by a minor without a next friend-Shonai Bewa vs. Monoram, 11 C. L. R., 15.
Neither this section nor section 441, ante, gives a Court authority to make a minor's estate liable for costs-- Amichand vs. The Collector of Sholapur, I. L. R., 13 Bom., 234.
Scope of the Section.-This section refers to a case, where on the face of the plaint, it appears that it was filed by a person who was a minor. It does not contemplate any enquiry into the question of minority-Beni Ram vs. Ram Lall, I. L. R., 13 Cal., 199. Remand.
No objection can be taken as to the minority of a plaintiff after remand by the High Court, unless the point was urged in the Appellate Court-Beni Ram vs. Ram Lall, I. L. R., 13 Cal., 189. Appeal. -See the case of Beni Ram vs. Ram Lall, I. L. R., 13 Cal., 189.
443. Where the defendant to a suit is a minor, the Guardian ad litem to Court, on being satisfied of the fact of his be appointed by Court.
minority, shall appoint a proper person to be guardian for the suit for such minor, to put in the defence for such minor, and generally to act on his behalf in the conduct of the case.
Where an authority competent in this behalf has appointed or declared a guardian or guardians of the person or property, or both, of the minor, the Court shall appoint him or one of them, as the case may be, to be the guardian for the suit under this section unless it considers, for reasons to be recorded by it, that some other person ought to be so appointed.
This section applies to H. C. and P. S. C. C. The last paragraph has been added by Act VIII of 1890.
As to this section see Rohilkhand vs. Kumaun Bank, I. L. R., 7 Alla., 490.
The manager of an estate was not the guardian under Act XL of 1858, of an infant co-proprietor of that estate for the purpose of defending a suit, unless he has obtained a certificate-Doorga Persad vs. Kesho, 9 Ind. App., 27; and the cases under“ MISDESCRIPTION," section 440, ante. And now see the last paragraph of section 440, ante.
A guardian ad litem should always be appointed by the Court--5 Mad., App., viii ; but not until it is proved to the satisfaction of the Court that the party is a minor (has been served with summons, if a defendant) and has had notice of the application to appoint-Suresh Chunrler vs. Jugut, I. L. R., 14 Cal., 204; otherwise the minor's name should be struck out of the record-Radha Kristo vs, Ram Chunder, 11 W. R., 300; but see In re Brocklebank, 6 C. D., 358. The guardian may be a different person from the natural guardian-Etwaree vs. Ram Narain, 13 W. R., 231.
A suit may be brought before a guardian is appointed, and limitation counts from the date of the plaint and not from the appointment of the guardian-Khem Karn vs. Har Dayal, I. L. R., 4 Alla., 37 : but the plaintiff should make early application to have a guardian appointed, and then the Judge should appoint a guardian-In re Motiram
Rup Chand, 11 Bom., 21 ; but no order of appointment should issue without the consent of the party appointed, and if no relative or friend of the minor can be found willing to take out a certificate under the Minors' Act, and appear as guardian, the Judge should appoint an officer of Court or some respectable nominee of the minor- Babaji vs. Maruti, 1i Bom., 185 ; Dhondiba vs. Kusa, 6 Bom., 219; Issur Chunder vs. Nobo Kisto, 7 C. L. R., 407 ; Jadow Mulji vs. Chhagan, I. L. R., 5 Bom,, 306: Woolf vs. Pemberton, 6 C. D., 19; for it is the duty of the Court to see that a minor's interests are properly represented-Nursinghmoyee Gooptia vs. Peary Soondree, 2 Sev., 699; and if an officer of Court be appointed he should not be paid for his trouble-Kerakoose vs. Serle, 3 Moore, 329. As to appointing a Nazir, guardian ad litem, see Mohan Ishwar vs. Haku Rupa, I. L. R., 4 Bom., 638.
The order should run as follows on application made on behalf of the minor under tion 456 :
On Plaintiff's Application.-"Upon motion, &c., who alleged that the defendant C D is a minor and has been duly served with summons, and has not appeared, although the time for doing so expired upon the and upon reading an affidavit ofand affidavit of notice to A, the person with whom the defendant C D was living at the time of service (if infant not residing with father or guardian) and to the father (or guardian) of the minor, let E be assigned guardian to the said defendant C D by whom he may defend this action-Pemberton, 112. As to who may be appointed a guardian, see sections 456, 457, post.
On Defendant's Application.-“Let A be assigned guardian of the infant B, by whom he may defend this action.”
Satisfied of the Fact of His Minority.- See Suresh Chunder vs. Jugut, I. L. R., 14 Cal., 204. 444. Every order made in a suit or on any application
before the Court, in or by which a minor Order obtained without next friend or is in any way concerned or affected, withguardian may be dis- out such minor being represented by a charged.
next friend or guardian for the suit, as the case may be, may be discharged, and, if the pleader of the
party at whose instance such order was Costs.
obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.
This section applies to H. C. and P. S. C. C.
This section enacts that no order by which a minor may in any way be concerned or affected can legally be made without him being represented by a next friend or guardian for the suit. - Amichand ys. The Collector of Sholapur, I. L. R., 13 Bom., 234.
445. Any person being of sound mind and full age may Who may be next
act as next friend of a ininor, provided his friend.
interest is not adverse to that of such minor, and he is not a defendant in the suit.
This section applies to H. and P. S. C.C
Asirun Bibi vs. Sharip Mundle, I. L. R., 17 Cal., 488.
446. If the interest of the next friend of a minor is Removal of next adverse to that of such minor, or if he is
so connected with a defendant whose interest is adverse to that of the minor, as to make it unlikely
that the minor's interest will be properly protected by him, or if he does not do his duty, or, pending the suit, ceases to reside within British India, or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal ; and the Court (if satisfied of the sufficiency of the cause assigned) may order the next friend to be removed accordingly.
If the next friend is not a guardian appointed or declared by an authority competent in this behalf
, and an application is made by a guardian so appointed or declared who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor.
This section applies to H. C. and P. S. C. C. The last paragraph has been added by
In a suit against A for himself and as guardian of B, a decree was given against both. Subsequently C petitioned, stating that she and not A was the guardian, and asked that the decree might be set aside as regards B. This was refused and C appealed, and the Appellate Court set aside the decree against B, although the respondent asked that C should be appointed next friend and the suit remanded : Held, that the Judge should have acceded to the respondent's request-Sheoburrut Singh vs. Lalljee, 13 W. R., 447. Unless otherwise ordered by the Court, a next
friend shall not retire at his own request friend.
without first procuring a fit person to be put in his place, and giving security for the costs already incurred. The application for the appointment of a new next friend
shall be supported by affidavit showing the Application for appointment of new next fitness of the person proposed, and also that
he has no interest adverse to the minor.
Act VIII of 1890.
Retirement of next
This section applies to H. C. and P. S. C. C.
An application to substitute a next friend must be made with notice to the defendants; such is the English procedure.
Án affidavit is necessary, although the application is not opposed by the defendants -Harrison vs. Harrison, 5 Beav., 31.
448. On the death or removal of the next friend of a
minor, further proceedings shall be stayed Stay of proceedings on
until the appointment of a next friend in
death or removal of next friend.
This section applies to H. C. and P. S. C. C.
On the death or removal of a next friend, it is the duty of the solicitor or pleader for the plaintiff to apply to the Court for an order, appointing a new next friend in his stead- Westby vs. Westby, 2 Coop. temp., Cott., 211.
In England, when a next friend dies, the paternal relations of the minor are first consulted as regards his successor-Talbot vs. Tālbot, L. R., 17 Eq., 317 ; Woolf vs. Pema berton, 6 O. D., 19.