A.R. Somnath Iyer, J.
(1) In O.S. No. 662 of 1954 on the file of the Munsiff at Kolar Gold Fields a suit was brought by a certain Madanlal, who was then a minor, by his next friend, his mother, against his two brothers for the recovery of a certain sum of money said to be due to the plaintiff. A decree was made in that suit in favour of the plaintiff and that decree directed the realisation of the amount of the decree by the sale of the joint family properties belonging to the two defendants in that suit. During the pendency of the suit the plaintiff had secured an attachment of certain properties. After the termination of the suit defendant-2 in the suit, presented an application under section 47 of the Code of Civil Procedure for an Order that the properties attached should be released from attachment. In support of that application the assertion made by that Defendant was that the suit properties were his separate properties not liable to be proceeded against in execution of the decree made against him. The Munsiff allowed that application and directed the release of the properties from attachment.
(2) Thereafter a suit was brought in O.S. No. 563 of 1958 in the same court under the provisions of Rule 63 of Order XXI of the Code of Civil Procedure for getting rid of the Order made on the application presented by defendant-2 in that previous suit. That defendant was the only defendant in the later suit and he will be referred to as the defendant in the course of this Order.
(3) When the second suit was brought, the plaintiff was still a minor. He was described in the plaint in the following way:
'M. Madanlal Dharival, Age 17, son of Misrilal Jain, Minor, by next friend mother Suvva Bayi, residing at Andersonpet, by her Agent J. Bansilal, Andersonpet, K.G.F.'
Bansilal who brought the suit as the power of attorney holder was one of the agents appointed under the general power of attorney by Suvva Bayi, mother and next friend of the plaintiff, executed by her on June 8, 1946. That general power of attorney authorised the agents, amongst whom Bansilal was one, to file suits on behalf of the minor, to sign plaints, written statements and all other documents to be filed in court for and on behalf of Madanlal. The power of attorney was executed by Madanlal's mother as the next friend of her son.
(4) A very singular contention was raised on behalf of the Defendant in the suit that the power of attorney was not validly executed and the ground urged in support of that submission was that the power of attorney executed by the minor himself, which he could not do as provided by section 183 of the Contract Act. The foundation for this argument was what was contained in the preamble to the power of attorney which reads:
'Know all men by these presents that I, Madanlal, son of J. Misrilal Dhariwal, age 31/2 years, Jain Money-Lender, residing at Andersonpet, represented by my mother and natural guardian Soova Bai, aged 23 years, hereby appoint................................................................................................................................ jointly or severally as my duly constituted agents under the circumstances mentioned below'
(5) It was urged before the Munsiff that the power of attorney is really one executed by the minor himself although he acted through his mother and natural guardian Soova Bai and that the execution of the power of attorney in that way was in law impossible.
(6) Very strangely the Munsiff accepted this argument and dismissed the suit on the ground that it was not properly instituted. In appeal, the Civil Judge concurred in that view and the plaintiff appeals.
(7) Since the courts below depended in support of their conclusion on a decision of the High Court of Bombay in Chunilal Bhagwanji v. Kanmal Lalchand, AIR 1944 Bom 201 which was considered by Kalagate J., as laying down the law at variance with the pronouncement of the Privy Council in Mohini Mohandas v. Bungsi Buddansaha Das, ILR 17 Cal 580 (PC) and of the High Court of Bombay in a later decision in Dahyabhai Giridhardas v. Bobaji Dahyaji : AIR1953Bom28 , he referred the second appeal under section 6 of the Mysore High Court Act to be disposed of and decided by a Bench, and so it is that it is now before us.
(8) Mr. Srinivasa Iyengar appearing for the Defendant with his usual frankness, conceded before us that the ground on which the Courts below dismissed the plaintiff's suit cannot be sustained. It is not easy to understand how the courts below could have ever found it possible to say that the power of attorney executed by the plaintiff represented by his mother and next friend, was not a good power of attorney. The provision of section 183 of the Contract Act was, in my opinion, utterly misused by the courts below for reaching the conclusion that it was not a good power of attorney. That section reads:
'Any person who is of the age of majority according to the law to which he is subject and who is of sound mind, may employ an agent.'
(9) This Section surely does not prohibit the employment of an agent for a minor by his guardian. The only prohibition which this section incorporates is that a minor cannot himself appoint an agent. There is nothing in this section which prohibits the guardian of a minor from appointing an agent for him.
(10) That this is the correct view to take was not disputed by Mr. Srinivasa Iyengar. We must therefore say that the decision of the courts below which rests on a plainly unsupportable ground must be vacated.
(11) But Mr. Srinivasa Iyengar urged before us that he could support the decrees of the Courts below on another ground. His submission was that the suit in the form in which it was brought was not permitted by the power of attorney executed in favour of Bansilal. The argument maintained was that Bansilal, without authority, used the name of the next friend of the Plaintiff for the institution of the suit and that the suit brought in her name without the requisite authority was not properly instituted. From the cause title of the plaint which I have extracted it is clear that the plaintiff is the minor represented by his next friend, his mother and again represented by Bansilal, the power of attorney holder. We were asked to say that although it was possible for Bansilal to bring the suit on behalf of the minor, it was not permissible for him to bring the suit on behalf of the minor represented by his next friend.
(12) The argument, to my mind, is extremely subtle and lacks substance. It is a well established rule that, although a power of attorney must be strictly construed as giving only such authority as it expressly or by necessary implication creates, the Court cannot (refuse?) recognition of the implied authority which every agent has, to do whatever is necessary or ordinarily incidental to the effective execution of the express authority conferred on him by the power of attorney. Although it may be, as Mr. Srinivasa Iyengar contends, that Bansilal is not authorised to state in the plaint which he may use for the institution of a suit on behalf of the minor that the minor is represented by his next friend, the mother, there is in the power of attorney a sufficiently comprehensive provision which created an implied authority in Bansilal by necessary implication, to describe the plaintiff as a minor represented by his next friend the mother. The relevant part of the power of attorney by which such implied authority for the effective execution of the express authority was conferred on Bansilal reads:--
'To sign plaints, written statements complaint petition, pleadings and all other papers to be filed in courts for and on behalf of me................... Generally to do all acts and things in connection with suits and other legal proceedings including the filing of papers and pleadings in courts both Civil and Criminal...'
(13) The authority conferred on Bansilal to do all acts and things in connection with suits and other legal proceedings is wide enough to include the authority to use the name of the next friend as the person representing the plaintiff in the suit which he was expressly authorised to institute on behalf of the minor. A refusal of the recognition of that power would amount to a transgression of well-known rules governing the construction of a power of attorney for delimitation of the implied authority of an agent in such circumstances.
(14) In my opinion, we should refuse to accede the argument that Bansilal did not have authority to bring the suit in the name of the minor represented by his next friend.
(15) I do not find anything in the decision of Beaumont, C.J., in AIR 1944 Bom 201 which can support the contrary view. Between the case before us and that decided by Beaumont C.J., there is not even the semblance of resemblance. That was a case in which a suit was brought on behalf of a minor by his next friend, his aunt. The plaint was signed and verified by one Saremal and the plaintiff's case was that Saremal was the fully authorised agent of the minor to present the plaint, to sign it and to appoint a pleader.
The trial court took the view that the plaint had to be signed by the next friend and not by a recognized agent. But the lower appellate Court took a different view although it thought that the next friend could appoint a recognized agent, but assumed that the power of attorney authorised Saremal to file a suit in the name of the minor using the name Bai Dhapu as next friend. Beaumont, C.J., dissenting from the view taken by the lower appellate court, pointed out that the suit was not brought on behalf of the aunt Bai Dhapu but was one brought on behalf of the minor and that there was nothing in the power of attorney to authorise Saremal to institute a suit in the name of the minor using the name of his aunt as his next friend. There was an application for amendment of the plaint which was however refused. I should also add that Beaumont, C.J., pointed out in his judgment that, in the power of attorney given to Saremal, there was not a word about the minor, or about Bai Dhapu being a next friend. This feature of the power of attorney is what distinguishes the Bombay case AIR 1944 Bom 201 from the case before us.
(16) It will be seen from the above narration that the decision of Beaumont, C.J., rested entirely upon his interpretation of the power of attorney executed by the plaintiff's suit in favour of Saremal in which Beaumont, C.J., was unable to find anything authorising Saremal to use the name of the aunt as the next friend of the minor. In the power of attorney before us there is enough material from which that authority could be deduced.
(17) It should be pointed out that in a later decision of the Bombay High Court in : AIR1953Bom28 , Chagla, C.J., was disposed to take the view that AIR 1944 Bom 201 was not correctly decided.
(18) Before concluding, I should point out that there is in form No. 86 contained in The Encyclopedia of Forms and Precedents, Volume I, Third Edition, a most complete answer to the doubt expressed by the courts below as the validity of the power of attorney executed in favour of Bansilal. That form makes it clear what should have been plain to the courts below, that the usual way in which a power of attorney, or for that matter any document, is executed on behalf of a minor is to state that the document of power of attorney is executed by the minor represented by his guardian whoever he may be.
And that form reads:
'A Power of attorney created the..................... day of............................ by (infant) of etc;
Whereas--(1)(Infant) a person not a full age is entitled to etc.
(2) Under the will of etc. (or as the case may be) I (guardian) of the etc., am the duly constituted guardian of the said (infant).
(3) It is expedient to appoint the attorney of the said (infant) in the management of the said (property).
Now this deed witnesseth that the said (infant) acting by me the said (guardian) appoints etc.'
(19) This appeal should, in my opinion, succeed. It is accordingly allowed and the decrees made by the Courts below are set aside. Since the courts below disposed of the suit in limine without adjudicating upon the merits, the suit is now remitted to the Munsiff for fresh disposal according to law.
(20) Costs in this Court and the lower appellate Court will be costs in the cause and will abide the eventual result.
(21) The Court fee paid on the memorandum of appeal will be refunded.
(22) I agree.
(23) Appeal allowed.