George Knox, Acting, C.J., Banerji and Richards, JJ.
1. The parties to this appeal are respectively Murlidhar, who was plaintiff in the Court below, and Sadho Lal, the present appellant, who was defendant. On the 6th of January 1904 the District Judge of Agra, acting under the provisions of Act No. VIII of 1890, appointed Sadho Lal guardian of the person and property of Murlidhar, who was then a minor of about 15 years of age. Sadho Lal continued to act as guardian up to the 11th of January 1906. He then applied to resign his office as guardian. The District Judge passed an order which was the subject of argument in the Court below, and which in the present appeal the appellant) claimed to be an order of absolute discharge. As we are able to decide this appeal upon the other pleas taken in the memorandum of appeal, we do not intend to do more than point out that all that the learned Judge of Agra in his order says is as follows: 'He is discharged under Section 40 of Act No. VIII of 1890 and has handed over Rs. 19-9-9, which Murlidhar's pleader accepts under protest, stating that he does not admit the correctness of the accounts. The discharge will not absolve Sadho Lal from liability for any fraud that may be subsequently discovered.' The learned Judge does not, as he might have done, declare him to be discharged from liability. After this order passed by the learned Judge, Murlidhar in person filed a suit in Court, in which he lays claim to certain money as being in the hands of Sadho Lal. The defence to the suit was that Murlidhar was still a minor and being a minor could not sue without a next friend. At the time when he instituted the suit Murlidhar had attained 18 years of age, but was admittedly below the age of 21. The Court of first instance overruled the plea of minority, but dismissed the suit on, other grounds. The lower appellate Courts agreed with the Court of first instance on the question of minority, but held that the suit was not barred by Act No. VIII of 1890, as held by the first Court. It accordingly remanded the case to the Court of first instance under the provisions of Section 562 of the Code of Civil Procedure for disposal on the merits. In appeal before us it was contended that, the respondent not having attained the age of 21 when he brought the suit was not competent to maintain it, and under the provisions of Section 444 of the Code of Civil Procedure the order of the lower Court ought to be discharged. Reliance was placed on the provisions of Section 3 of Act No. IX of 1875 as amended by Section 52 of Act No. VIII of 1890. The language of that section is plain and free from all ambiguity, and it would not really have been necessary to have this appeal decided by a Full Bench of this Court, but for the ruling in the case of Patesri Partap Narain Singh v. Champa Lal Weekly Notes, 1891, p. 118. The learned Judges who decided that case held that the mere fact of the appointment of a guardian would not operate to postpone the attainment of majority by a minor till he reaches the age of 21. That case was, however, a case instituted before Section 3 of Act No, IX of 1875 had been amended. The amendment makes it very clear that the Legislature does intend that when a guardian has been appointed, even if that guardian afterwards resigns or for any other reason ceases to act as guardian, the attainment of majority by a minor is postponed until he has completed his age of 21 years. The same view was taken by the Bombay High Court in the case of Gordhandas Jadowji v. Harivalubhdas Bhaidas (1896) I.L.R., 21 Bom., 281. As the suit was instituted before the plaintiff had attained the age of 21, the institution of the suit by the minor before he attained majority was a violation of the provisions of Section 440 of the Code of Civil Procedure. In view of the order that we are about to make we think it well to draw attention to the provisions of Section 36 of Act No. VIII of 1890. The appeal is decreed; the orders of both the Courts below are set aside, and the case is sent back to the Court of first instance with directions to return the plaint to be represented, if thought desirable, by a next friend, after that next friend has obtained the necessary sanction from Court. We make no order as to costs.