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Girish Chunder Chowdhry Vs. Abdul Selam, a Minor, Represented by Bishesher Sen, and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal55
AppellantGirish Chunder Chowdhry
RespondentAbdul Selam, a Minor, Represented by Bishesher Sen, and ors.
Cases Referred and Chunee Mul Johary v. Brojo Nath Roy Chowdhry
Excerpt:
minority - suit by minor--certificate of administration--act xl of 1858, section 3. - .....against him. there was no appeal by the other defendants against whom the decree was passed. the district judge, on an application being made by the minor on attaining majority for discharging the guardian under the provisions of the procedure code, allowed an objection to be taken to the frame of the suit based upon a statement contained in the afore said application. that statement amounted to this, that on the date of the institution of the suit girish chunder chowdhry was over 18 years of age; and the judge says: 'the suit was instituted on the 1st august 1883; so that, unless appellant was a ward of court under act xl, the suit below should have been rejected in limine. as it is not clear whether he was or was not such ward, the case may stand over till the 16th of september, at.....
Judgment:

1. At the time when the case was argued before the Subordinate Judge, it seems that a somewhat similar objection was pressed, but the Subordinate Judge dismissed it, with the remark that it was not put in issue, and not only was it not put in issue, but, as already pointed out, it was an admitted fact that the plaintiff was a minor, and that his property was managed by his guardian and mother Khyama Sunduri Chowdhrani. An appeal was preferred against the decision of the Subordinate Judge by the plaintiff against the defendant No. 5, the suit having been dismissed as against him. There was no appeal by the other defendants against whom the decree was passed. The District Judge, on an application being made by the minor on attaining majority for discharging the guardian under the provisions of the Procedure Code, allowed an objection to be taken to the frame of the suit based upon a statement contained in the afore said application. That statement amounted to this, that on the date of the institution of the suit Girish Chunder Chowdhry was over 18 years of age; and the Judge says: 'The suit was instituted on the 1st August 1883; so that, unless appellant was a ward of Court under Act XL, the suit below should have been rejected in limine. As it is not clear whether he was or was not such ward, the case may stand over till the 16th of September, at the request of his pleader, who consents to pay Rs. 10 postponement fees.' Then it was taken up afterwards, and the District Judge found that an application for a certificate was made by the mother on the 18th of May 1875, and an order was passed in March 1876 appointing her manager and guardian of her son, but there was nothing to show that a certificate was actually issued. In this state of things the District Judge, being of opinion that the suit was not properly brought in the name of Girish Chunder Chowdhry as a minor represented by his mother, dismissed the whole suit even against the defendants Nos. 1, 2, and 4. As regards the defendants Nos. 1, 2, and 4, it is quite clear that the District Judge was not right in setting aside the decree of the Court below. That part of the decree of the first Court was not before him, and ha had no right to interfere with it. That part of the decree of the District Judge must;, therefore, be set aside. Then, as regards the defendant No. 5, against whom the appeal was preferred, it seems to us that the objection upon which the suit was dismissed should not have been allowed by the District Judge to be put forward by the respondent. Not only was no objection taken by the respondent at first upon this point, but the respondent admitted that the plaintiff was a minor, and that his property was managed by his mother Khyama Sundari. That being so, the point should not have been allowed to be urged in the lower appellate Court; but even if it had been open to the defendant No. 5 to urge this objection, we should have been inclined to hold that, under Section 3 of the Majority Act, the plaintiff Girish Chunder Chowdhry was a minor at the date of the institution of the suit. Section 3 of the Majority Act says 'Every minor, of whose person or property a guardian has been or shall be appointed by any Court of Justice, and every minor under the jurisdiction of any Court of Wards, shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.' The question is, whether in this case the guardian was appointed under Act XL of 1858 by a Court of Justice. In this case we find that on an application (we must take it that it was so, as it; is not proved otherwise) by the mother to be appointed manager of the minor's estate and guardian of his person, an order was made appointing her his guardian, and according to the admission of the defendant she was managing the property of the minor. Under these circumstances we are of opinion that the requirements of Section 3 of the Majority Act were fulfilled. Whether the person appointed actually took out a certificate or not is not material in the view which we take of the provisions of Section 3 of the Majority Act. As soon as an application is made for the appointment of a guardian, and an order is passed appointing a person to be guardian of the minor, the minor becomes a ward of Court, and when he becomes a ward of Court,. we think it was the intention of the Legislature to extend the period of majority to 21 years under the Act. The language of the section is also in favour of this view. It simply says: 'Every minor of whose person or property a guardian has been or shall be appointed by any Court of Justice.' It does not say that every minor in respect of whose person or property a certificate of guardianship has been issued. It being the intention of the Legislature to extend the age of minority to 21 years in those cases where a minor becomes a ward of Court, and the language of Section 3 of the Indian Majority Act carrying out this intention, we are inclined to think that, upon a proper construction of this section, the age of minority is extended to 21 years when an order is made appointing a guardian. Our attention has been called to three decisions of this Court in the cases of Stephen v. Stephen 8 C. 714; Stephen v. Stephen 9 C. 901 ; and Chunee Mul Johary v. Brojo Nath Roy Chowdhry 8 C. 967. The last mentioned decision is in favour of the view we now take; the other two take a contrary view. If the point was actually before us, with great deference to the Judges who decided those cases, we should be inclined to hold that the plaintiff should not be considered to have attained his majority when the plaint was filed.

2. We reverse the decision of the lower appellate Court and remand: the case to that Court to be decided as between the plaintiff and the defendant No. 5. Costs as between the plaintiff and the defendant No. 5 will abide the result.

3. The defendants Nos. 1 to 4 must pay the costs of the plaintiff in this appeal.


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