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Kaai Doss Vs. Kassim Sait - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1893)ILR16Mad344
AppellantKaai Doss
RespondentKassim Sait
Excerpt:
civil procedure code - act xiv of 1882, section 443--defence of minority--procedure on trial of preliminary issue. - - section 443 is taken from rule 11 of the calcutta high court, dated 10th june 1874, the words 'on being satisfied of the fact of his minority' being added (see belchamber, 570). the apparent intention is not to treat one who alleges that he is a minor as not being a minor and thereby to ignore the general principle that a minor cannot act for himself, but to indicate that a finding that he is really a minor is necessary to the appointment of a guardian for the suit and to act on his behalf generally in the conduct of the case......by section 443; that a preliminary issue should be recorded raising the question whether or no the defendant is a minor; that it should be tried and adjudicated upon in the same way in which any other material issue is tried and decided; that if the defendant is found to be a minor, a guardian for the suit should be appointed for him; and that if he is found not to be a minor, the guardian appointed for the inquiry indicated by section 443 should cease to act, the defendant conducting his own case.2. wilson and king, attorneys for defendant.
Judgment:

1. A minor cannot be treated as if he was of full age during the investigation of any material averment in a suit. He must always be represented by a guardian, and no order made without his being so represented is valid under Section 444 of the Code of Civil Procedure. The general rule is that though a minor may appear by an attorney or pleader, he can only plead or conduct the defence by his guardian. Section 443 is taken from Rule 11 of the Calcutta High Court, dated 10th June 1874, the words 'on being satisfied of the fact of his minority' being added (See Belchamber, 570). The apparent intention is not to treat one who alleges that he is a minor as not being a minor and thereby to ignore the general principle that a minor cannot act for himself, but to indicate that a finding that he is really a minor is necessary to the appointment of a guardian for the suit and to act on his behalf generally in the conduct of the case. No sufficient reason appears from the letter of reference for trying the question of minority, which is as material as any other question in the suit, by affidavits instead of in the regular way. We are of opinion that on minority being alleged and denied, a guardian should be appointed for the purposes of the inquiry contemplated by Section 443; that a preliminary issue should be recorded raising the question whether or no the defendant is a minor; that it should be tried and adjudicated upon in the same way in which any other material issue is tried and decided; that if the defendant is found to be a minor, a guardian for the suit should be appointed for him; and that if he is found not to be a minor, the guardian appointed for the inquiry indicated by Section 443 should cease to act, the defendant conducting his own case.

2. Wilson and King, Attorneys for Defendant.


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