1. This is a suit which was filed on behalf of the minor plaintiff, who is a boy of six years of age, by a man named Shamji Muljee as next friend. It appears that after the institution of the suit Shamji Muljee disappeared from Bombay, and thereafter a woman named Radhabai applied to the Court for an order under g. 447 of the Civil Procedure Code for the appointment of a new next friend. The application was opposed by the first and second defendants, who were two of the executors of the father of the boy, on the ground that under the father's will a woman named Panbai had been appointed guardian of the person of the minor and that, therefore, under Section 440 of the Code the suit was a suit which could not be instituted except with the leave of the Court, which had not been obtained. That point was not decided by the learned Judge but by consent an order was made that Radhabai should be appointed next friend, she undertaking through her counsel to be responsible for all costs up to the date of that order not properly incurred and without prejudice to the contention of the defendants Nos. 1 and 2 that the suit as originally framed was bad under Section 440 of the Code of Civil Procedure. As the learned Judge did not decide that point, it falls to me to decide it as it has been argued by Mr. Davar on behalf of the first and second defendants.
2. Now the words of Section 440, which has been relied upon are 'If a minor has a guardian appointed or declared by an authority competent in this behalf, a suit shall not be instituted 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.'
3. It is conceded that Shamjee who instituted the suit as next friend was not a guardian 'appointed or declared by an authority competent in this behalf.' It is conceded that the leave of the Court was not obtained for the institution of the suit.
4. Now on behalf of the next friend it is contended that the suit was rightly instituted because the minor had no guardian 'appointed or declared by an authority competent in this behalf,' inasmuch as no guardian had been appointed by the Court.
5. On the other hand Mr. Davar for the first and second defendants contends that the minor had a guardian 'appointed and declared by an authority competent in this behalf,' because there was a guardian of the person of the minor appointed by the Will of his father, and a Hindu father has a power to appoint a guardian of the person of his minor son.
6. The last proposition is not disputed. There can be no question that a Hindu father has that power. But the difficulty which arises and which has given rise to argument is as to the meaning of the words ' authority competent in this behalf.' It is contended by Mr. Taleyurkhan that a Hindu father competent to appoint a guardian of his minor son is not ' an authority competent in that behalf.'
7. Now, I think, it is possible to decide whether the words 'authority in this behalf' have the limited meaning contended for by Mr. Taleyarkhan by a reference to Act VIII of 1890, by which Clause 2 of Section 440 was imported into the CivilProcedure Code. That Act contains certain sections at the end, two of which are amending sections, and to which I will refer. First of all there is Section 51 which contains these words:-' A guardian appointed by a Civil Court.' Section 52 contains these words: - 'The following shall be substituted in the Indian Majority Act:-'every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice'.' Section 53 which enacts the amendment of Section 440 of the Civil Procedure Code contains the expression which has been the subject of argument before me.
8. It will be observed that where in Act VIII of 1890 it is intended to limit the reference to 'appointed guardians 'to 'appointments by the Court' that is done, see S3. 51 and 52; but in the amendment of Section 440 of the Civil Procedure Code there is no such limitation but the words are ' a guardian appointed or declared by an authority competent in this behalf.' That I take it must mean something wider than the words of Section 52 which speaks of a guardian appointed or declared by any Court of Justice. I, therefore, think that they apply to a guardian appointed or declared by the will of a Hindu father, and for that reason I think that the suit was improperly instituted and cannot be continued by the present next friend.
9. The suit must, therefore, be dismissed with costs including costs reserved. The next friend to pay the costs of defendants 1 and 2.
10. I may add that I do not think the dismissal of the suit, so far as I can see, will be prejudicial to the minor, as the executors without any delay filed their accounts of administration in the office of the Ecclesiastical Registrar in August 1904, and they hold well invested the sum of Rs. 6200 and also ornaments worth Rs. 3000 in trust for the minor, and there are no charges made against them of wilful default in their administration.
11. Suit dismissed against defendants Nos. 1 and 2.
12. By consent of plaintiff and defendant No. 3. suit dismissed against defendant No. 3. No order as to costs as regards defendant 3.