1. The 1st plaintiff, a minor, sued the 1st defendant by his guardian for possession of the suit property, as his by survivorship, and for a declaration that the will purporting to have been made by his deceased father, on which the 1st defendant relied, was null and void. This will vested the property in the 1st defendant in trust for the 1st plaintiff in case he should attain majority and in trust for a temple in case of his failure to do so. 1st plaintiff died a minor. 2nd plaintiff the present appellant, was placed on the record as his legal representative; subject to objection to be disposed off in the final judgment. The 2nd plaintiff then had the other defendants impleaded, as representing the temple and as having taken possession of the property on its behalf in accordance with the will on the 1st plaintiff's decease.
2. The Lower Appellate Court held and these defendants have argued here, that the 2nd plaintiff's cause of action is not identical with the 1st plaintiff's and that the former therefore cannot carry on the latter's suit. We cannot follow the learned Sub-ordinate Judge in his argument based on the alleged division of the will into two portions, one of which it was, he held unnecessary for the 1st plaintiff to have declared inoperative. It is in fact doubtful whether the 1st plaintiff was under any obligation to ask for relief in respect of the will at all, since it was the foundation, not, of his claim, but of the 1st defendants' defence, and it was for the 1st defendant to propound it and establish its validity. But in any case, the 1st plaintiff sued, alleging that the property had vested in him and that he was entitled to possession of it notwithstanding the will, and the 2nd plaintiff was entitled, as his heir, to prosecute that suit. The facts that the 2nd plaintiff impleaded fresh defendants, to whom the property had been transferred and that he alleged the transfer to them as consequent on the 1st plaintiff's death are immaterial, when the former alleged that both the 1st defendant and the other defendants took the property under colour of the same title, that based on the will. We observe further that, not only was this allegation in the plaint and the foundation, on which the 1st plaintiff and after him the 2nd plaintiff were bound to base their claim, but it was not denied by the defendants subsequently impleaded, who set up no separate title or tresspass on their part.
3. Here the Lower Appellate Court's decision is supported further on the ground that the cause of action of a minor, such as the 1st plaintiff's is personal to him, since it would be open to him to reprobate his guardian's action on attaining majority and therefore does not survive to his heir. We have been shown no authority for this contention and it does not commend itself on its merits.
4. The second appeal must therefore be allowed. The Lower Appellate Court's decision is set aside and it is directed to restore the appeal to its file and dispose of it according to law. The costs in this Court will be costs in the cause.