Knox and Banerji, JJ.
1. The suit out of which this first appeal has arisen is a suit instituted by one Rai Sham Krishna, a major, and two others, who at the time of the institution were minors: they professed to sue under the guardianship of Rai Sham Krishna, the first plaintiff. It is admitted that Rai Sham Krishna was not appointed by any Court guardian of the minor co-plaintiffs, and that there was a person, namely, their mother, who was appointed guardian by a competent Court. No objection was taken in the written statement to the frame of the suit, and the suit proceeded to its first hearing on the 15th of September 1893, when issues were fixed in which no question was raised for decision as to the parties who were arrayed as plaintiffs whether they were or were not properly represented as plaintiffs in the suit. In the face of these facts it is somewhat difficult to understand the opening sentence in the judgment of the Court below, which sets out that the defendants had taken a preliminary objection to the effect that Rai Sham Krishna could not be the next friend of the plaintiffs numbers two and three, as there was a certificated guardian of the minors, and that the suit failed for non-joinder of parties. This objection could only have been taken orally, and there is no trace of its having been taken till the 15th of November 1895, in other words, till nearly three years had elapsed from the time when the suit was instituted and after the case had been fixed for some score of hearings. The Court below proceeded, however, to treat the objection as a very serious one. It held, under the authority of Section 440 of the Code of Civil Procedure, that Rai Sham Krishna could not institute the suit on behalf of the minor co-plaintiffs; that the only person who could institute a suit on their behalf was the guardian appointed by the Court, and that, as the minors were necessary plaintiffs in the case, the suit as instituted was ab initio void, failed and must be dismissed. For this view it further relied upon the case of Har Bilas v. Lachman Das Weekly Notes 1891, p. 42. As regards the case of Ear Bilas v. Lachman Das, we are of opinion that we need not consider it any further, as the case was decided before the passing of Act No. VIII of 1890, and that Act has made the law, in our opinion, sufficiently clear for us to follow without any regard to the cases decided before it was passed. Section 440 of the Code of Civil Procedure, as amended by Act No. VIII of 1890, provides, first, that every suit by a minor shall be instituted in his name by an adult person, and, secondly, that if a minor has a guardian appointed or declared by an authority competent in this behalf, such suit shall not be instituted on behalf of the minor by any person other than such guardian, except with the leave of the Court obtained in the way provided by that section. In-this suit, as it stands at present, we have the fact that the guardian appointed by an authority competent in that behalf has not instituted the suit on behalf of the two minor plaintiffs, and that no application has up to now been made to bring her as guardian upon the record. We have the further fact that Rai Sham Krishna, who posed as guardian, has never obtained the leave of the Court to sue on behalf of his minor brothers. The learned Counsel for the appellants attempted to meet this difficulty that was raised in his way by first contending that the mother of the minor co-plaintiffs had not been declared guardian by a competent authority. This contention was based upon the argument that we had before as the case of a joint Hindu family living jointly, the karta of which family was the plaintiff Rai Sham Krishna, that as such karta he was competent to manage and to institute suits respecting the joint family property, and that no need existed for the appointment of any guardian to the minors. In fact his contention went so far as to maintain that Act No. VIII of 1890 did not apply to the case of a joint Hindu family living jointly. It is not necessary to decide that question in the present case. We have the faot that a Court having jurisdiction to appoint a guardian for the minors has appointed as guardian the mother of the minors. In such a case we hold that Section 440 of the Code of Civil Procedure precludes any other person than the guardian so appointed from instituting a suit on behalf of the minors, except in the case pointed out in Section 440, i.e., when, after due notice has been given to such guardian and after hearing any objection which such guardian may desire to make with respect to the institution of the suit, the leave of the Court has been granted to another person to institute the suit on behalf of such minors. This being so, we so far agree with the Court below that the suit was not properly instituted on behalf of the minor plaintiffs. This did not, however, entail the dismissal of the suit as brought. There was from the beginning before the Court one plaintiff who was sui jurts, and further no objection was taken to the effect that the remaining plaintiffs were not properly represented. If the respondent wished to raise the objection that the minors were necessary parties to the suit, and that, inasmuch as they were not properly represented, they could not be considered to have been joined as parties, that objection as to non-joinder had by law to be taken at the earliest opportunity, and in any case before the first hearing. Section 34 expressly provides that any such objection not so taken shall be deemed to have been waived by the defendant. In this case, as we have already pointed out, the objection as to non-joinder of the plaintiffs was not taken until two years had elapsed from the date of the first hearing. The Court below was therefore not justified in dismissing the suit on the ground of non-joinder. While the case was slowly proceeding, one of the minor co-plaintiffs came of age and asked the lower Court to be permitted to proceed with the case, but permission was refused, and wrongly refused. The Court should have done what we now direct to be done in this case, and that is that the title of this suit be corrected and read henceforth, so far as that plaintiff is concerned, as 'Rai Butte Krishna, late a minor but now of full age.' This correction, which should have been made, would have cured the defect of non-joinder so far as Rai Butte Krishna was concerned. In the view we have taken it is immaterial whether the third plaintiff was properly represented or not. This case must, however, go back, and the Court will now have an opportunity of doing that which it should have done at a much earlier stage of the proceedings, namely, of allowing the third plaintiff to be properly represented, and this it can do by following the procedure laid down in Section 440 of the Code of Civil Procedure. The view we have just taken is, we find, similar to that adopted by the Calcutta High Court in the case of Beni Ram Bhutt v. Ram Lal Dhukri I.L.R. 13 Cal. 189.
2. We decree this appeal, and, as the Court below has gone wrong on a preliminary point, we set aside the decree of that Court and remand the case to the Court below with directions to readmit it under its original number on its file of pending oases and to proceed with it according to law. Costa here and hitherto will abide the event.