1. The plaintiff Rattonbai on the 5th April last brought an administration suit against the executors of her late husband, and on the 9th April obtained a rule nisi and an interim injunction against them. On the 2nd May the defendants' solicitors gave notice to the solicitor of the plaintiff that the plaintiff was a minor suing without a next friend, and the plaint must be struck off the file in consequence. The plaintiff's solicitor at once replied that if the plaintiff was really a minor, he would at once take steps to have her father appointed her next friend and the plaint and proceedings amended accordingly. On the 7th May inspection was given to the plaintiff's solicitor of the plaintiff's horoscope, and after that inspection the plaintiff's solicitor proposed that the plaint and proceedings should be amended by the insertion of the name of the father of the plaintiff as her next friend. Nothing was done by either party until the close of the May vacation; and on the 6th June 1888 the defendant's attorneys gave notice of an application for an order that the plaint should be taken off the file under Section 442 of the Civil Procedure Code. That application came on for argument before me last Monday, when also an application was made to amend the proceedings by the insertion of the name of the plaintiff's father as her next friend.
2. As regards the law of the case, there is no doubt that an infant cannot prosecute an action either in person or by solicitor, but only through an adult person known as 'the next friend of the minor.' There is no doubt also that if an infant do sue either in person or by solicitor, the defendant may, under Section 442, apply to have the proceedings set aside. The omission is not more than an irregularity. It is not a case of nullity. But the cases cited by Mr. Starling show that the Courts, both in England and in India, as a rule, only strike the plaint off the file where it appears on the face of the plaint, that it was filed by a person who was a minor, or when it is proved that it was filed with the knowledge that the plaintiff was a minor, and with the intention of deceiving the Court and evading the payment of costs in case the plaintiff failed in the claim. When the fact of minority is a bond fide question of evidence, and the defendant's allegation is found correct, then the usual course is to suspend all proceedings and to allow sufficient time to enable the minor to have himself properly represented in the suit by a next friend : see Beni Ram Bhutt v. Ram Lal Dhukri I.L.R. 13 Cal. 189 ; Chitty's Practice, Vol. 2, p. 1017; and other authorities cited by Mr. Starling.
3. Now, in this case, the father of the plaintiff was, no doubt, the instigator of the suit. But the suit does not appear, on the face of it, to be a vexatious one. He states on oath that he believed his daughter was of age. Her horoscope does not seem to have been in his possession. She was, as a matter of fact, some sixteen months under age. Mr. Jardine argued that it was impossible to believe that a father could honestly have made such a blunder. I am inclined to doubt whether parents all the world over follow the ages of their children with the accuracy Mr. Jardine ascribes to them. I think the blunder may have been honestly made. At any rate, in presence of the statement under oath, I will not decide that knowledge of the true age was fraudulently concealed, especially as the father expressed his willingness at once to be placed upon the record as his daughter's next friend. I will not therefore strike off the plaint. Still the father was guilty of gross carelessness. He must have known a horoscope was in existence, and he ought to have consulted it. I can only admit him on the record as next friend on his payment of all the costs of the present application, as I think the defendant was justified in coming to the Court.