Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Maksud Ali And Ors. vs Newaj on 10 August, 1885
Equivalent citations: (1885) ILR 12 Cal 131
Author: Ghose
Bench: Norris, Ghose


Ghose, J.

1. We see no ground to interfere in this case. The suit was instituted by the plaintiffs Nos. 1 and 2 and a third plaintiff, the minor daughter of one Moonshi, who was represented by her next friend the plaintiff No. 2; and the object of the suit was to recover possession of the lands in suit upon the ground that they belonged to the said Moonshi; and that upon Moonshi’s death they had devolved upon the plaintiffs.

2. The defendant in the Court of First Instance, amongst other things, pleaded that the plaintiff No. 2 was not the proper person to represent the interests of the minor plaintiff; but the Court of First Instance overruled that objection ; and upon the question of title, it held that the property belonged to Moonshi and was in Moonshi’s possession up to his death.

3. The lower Appellate Court has substantially confirmed the findings of the first Court.

4. The learned vakil for the defendant-appellant contends before us in the first place, that, inasmuch as no written permission was granted to the plaintiff No. 2 to represent the minor, the suit ought to have been dismissed.

5. We are of opinion that this ground cannot be sustained. Section 440 of the Code of Civil Procedure, read in connection with Section 3 of Act XL of 1858, does not, as contended for by the vakil, enjoin such a written permission being granted by the Court to the next friend of a minor, when the latter is a plaintiff. The suit in the present case, as already stated, was instituted in the name of the minor by her next friend the plaintiff No. 2; the plaint was duly received by the Court, and the suit was allowed to proceed. It is, therefore, to be presumed that the Court accepted the plaintiff No. 2 as a fit person to re-present the interests of the minor. But more than this, we find that the Court of First Instance dealt with the question, whether the plaintiff No. 2 was a proper guardian of the minor, and whether he should be allowed to prosecute the suit on her behalf, and decided both questions in the affirmative. In this state of things, we are of opinion that this ground cannot be maintained.

6. The learned vakil for the appellant next contends that the lower Appellate Court has decided the case upon an altogether different issue from that upon which the first Court decided it.

7. We are of opinion that this ground also cannot be maintained. Both the lower Courts have substantially found that the property belonged to Moonshi, and that upon his death it devolved upon the plaintiffs. Whether, upon Moonshi’s death, the property devolved upon all the three plaintiffs, or to the minor plaintiff alone, is a question which has not been, and which need not have been, gone into in the present case. That is’ a question which may hereafter be raised, if occasion should arise, as between the plaintiff No. 3, the minor daughter, and the plaintiffs Nos. 1 and 2, the nephews of Moonshi. We are, therefore, of opinion that the appeal should be dismissed with costs.

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