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Jhalo Bibi and anr. Minor by Her Guardian and Next Friend Jhalo Bibi Vs. Alim Buksh Fakir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal48
AppellantJhalo Bibi and anr. Minor by Her Guardian and Next Friend Jhalo Bibi
RespondentAlim Buksh Fakir
Cases ReferredDurga Charan Shaha v. Nilmoney Dass I.L.R.
Excerpt:
minor, sttit by - next friend--certificate under act xl of 1858--objection to frame of suit. - .....appeal: first, that the first plaintiff had no authority to represent the second plaintiff, her minor daughter. but. the finding on the first issue is to the effect that the court did give sanction to the lady to represent her minor daughter. that, we think, is sufficient on the authority of the case of durga charan shaha v. nilmoney dass i.l.r. 10 cal. 134.2. another point taken is an objection to the form in which the suit was brought. the first plaintiff purports to sue for herself and as guardian of her minor daughter. the suit ought to have been brought by jhalo bibi, and by her minor daughter safina bibi by jhalo bibi, her mother and next friend. but the objection was not taken at any stage of the case to that incorrect description. no one appears to have been misled by it......
Judgment:

Wilson and Beverley, JJ.

1. We see no ground for interfering in this case.

Two points have been raised in this appeal: first, that the first plaintiff had no authority to represent the Second plaintiff, her minor daughter. But. the finding on the first issue is to the effect that the Court did give sanction to the lady to represent her minor daughter. That, we think, is sufficient on the authority of the case of Durga Charan Shaha v. Nilmoney Dass I.L.R. 10 Cal. 134.

2. Another point taken is an objection to the form in which the suit was brought. The first plaintiff purports to sue for herself and as guardian of her minor daughter. The suit ought to have been brought by Jhalo Bibi, and by her minor daughter Safina Bibi by Jhalo Bibi, her mother and next friend. But the objection was not taken at any stage of the case to that incorrect description. No one appears to have been misled by it. Everybody proceeded on the understanding that what was meant was that the minor appeared by her mother as next friend. So strongly does that appear that in the memorandum of appeal by which the matter has been brought before us, the appellant himself describes the minor's suit in this way. No injustice has been done, and the remedy given is undoubtedly right. That being so, we think we are justified in following the course taken in the case above quoted, and saying that under those circumstances the objection ought not to be held fatal to the case. Of course, as in that case, the decree ought to be and must be regarded as a decree, not in favour of the widow in her own interest and as guardian of her minor daughter, but as a decree in favour of her as widow and of her minor daughter suing by her.

3. The appeal will be dismissed with costs.


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