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Maina Hari Tarde Vs. Shankar Moru Tarde - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 392 of 1918
Judge
Reported in(1920)22BOMLR787; 57Ind.Cas.540
AppellantMaina Hari Tarde
RespondentShankar Moru Tarde
DispositionAppeal dismissed
Excerpt:
guardians and wards act (viii of 1890), section 36-guardian of minor's property-suit against the guardian-leave of the court-leave can be obtained subsequent to the filing of the plaint.;a suit brought against the guardian of the property of a minor under' the provisions of section 36 of the guardians and wards act, 1890, is in order even if the leave of the court is obtained subsequent to the filing of the plaint. - - there are cases in which the failure to obtain the leave of the court required by a particular act is fatal to those proceedings. we think that the court was perfectly right in coming to the conclusion that that mistake was remedied by the order made giving leave to the plaintiff's guardian to continue the suit. 2. i agree, but i should like to add this. i think that..........obtain the leave of the court under section 36 of the guardians and wards act before he filed this suit. leave as a matter of fact was obtained on the 26th january 1910 before the suit came on for hearing. there are cases in which the failure to obtain the leave of the court required by a particular act is fatal to those proceedings. for instance it has been held that if leave, when it is necessary, is not obtained under clause 12 of the letters patent, the mistake cannot be remedied after the suit has been filed, because it is only by obtaining leave that the plaintiff in such a suit can bring it within the jurisdiction of the court. but in this case it appears to us from the provisions of section 36 of the guardians and wards act that leave of the court must be obtained by a person who.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff a minor filed this suit by his next friend for an account under Section 36 of the Guardians and Wards Act, VIII of 1890. The 1st defendant is the guardian of the property appointed by the District Court of Satara. The defendants Nos. 2 and 3 are the sons of the 1st defendant and are alleged to be managing the minor's property under the 1st defendant. The trial Court took an account and directed that the defendants should pay the minor plaintiff' 's next friend the sum of Rs. 540 only and the costs of this suit. In appeal that decree was confirmed.

2. The only point which has been taken in Second Appeal is that the whole of this proceeding should be avoided because the plaintiff's next friend did :not obtain the leave of the Court under Section 36 of the Guardians and Wards Act before he filed this suit. Leave as a matter of fact was obtained on the 26th January 1910 before the suit came on for hearing. There are cases in which the failure to obtain the leave of the Court required by a particular Act is fatal to those proceedings. For instance it has been held that if leave, when it is necessary, is not obtained under Clause 12 of the Letters Patent, the mistake cannot be remedied after the suit has been filed, because it is only by obtaining leave that the plaintiff in such a suit can bring it within the jurisdiction of the Court. But in this case it appears to us from the provisions of Section 36 of the Guardians and Wards Act that leave of the Court must be obtained by a person who wishes to institute a suit against a guardian merely for the protection of the guardian and such a provision does not go to the jurisdiction of the Court. If the suit is filed without leave, then as soon as the attention of the Court is drawn to that fact, the proceedings will be stayed; but I do not think that the proceedings are entirely nullified for want of leave. It would be open to a Court on a proper application by the plaintiff' to remedy such a mistake, and if it thinks fit to empower the plaintiff to continue the proceedings against a guardian. In this case the plaintiff's next friend is as a matter of fact the guardian of his person. No doubt he considered himself as such guardian empowered to look after the interests of the minor when he saw that those interests were not being properly looked after by the guardian of the property. That no doubt was the cause of the mistake. We think that the Court was perfectly right in coming to the conclusion that that mistake was remedied by the order made giving leave to the plaintiff's guardian to continue the suit. Therefore I think the order of the Court below was correct and the appeal must be dismissed with costs.

Heaton, J.

2. I agree, but I should like to add this. The directions contained in an Act of the Legislature are intended to be followed, and it seems to me that it cannot be said that a suit of this kind is rightly filed when it is filed without leave previously obtained of the Court. But it does not follow that if this is not done the plaint must be handed back to the plaintiff to be redated and again handed back to the Court after leave is obtained. I think that everything that the section requires is obtained if you regard the suit as effectively filed on the day on which leave is given by the Court. This might be a very material matter if a question of limitation arose. In this case, however, there is no such question and I think the appeal must be dismissed with costs.


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