Richard Garth, C.J.
1. We have great doubt whether we ought not to reverse the judgments of both Courts, and to dismiss the plaintiff's suit upon the ground that it is not properly brought.
2. It is in form a suit by 'Gour Monee Dassee, widow of Sumbho Nath Dass, deceased, and manager on behalf of her minor son Nilmoney Dass.' But the real claimant is Nilmoney Dass, the minor, and the suit has been dealt with from first to last by the lower Courts upon that footing.
3. The suit, therefore, in point of form, is brought in the name of the wrong person.
4. We have had other cases before us, in which the same mistake has been made, and Courts of First Instance are very much to blame for not obliging plaintiffs to put their claims in proper shape, before they allow such suits to proceed.
5. The fact of the Munsiff having omitted to do this in the present case has been the means of causing the parties great delay and expense, and very nearly of defeating the plaintiff's claim altogether, although he has succeeded in both Courts upon the merits.
6. Under Section 440 of the Code, a minor plaintiff must always now sue by his next friend; and under Section 443* a minor defendant must defend by a guardian appointed by the Court. The effect of Section 3, Act XL, 1858, read with Section 440 of the Code is, that a minor plaintiff must not only always sue by his next friend, but when the suit relates to the minor's estate, the person representing the minor must either hold a certificate under the Act, or must obtain the sanction of the Court for the suit to proceed.
7. The form in which the plaintiff should have sued in this case is, 'Nilmoney Dass, the minor son of Sumbho Nath Dass, deceased, by his mother and next friend Gour Monee Dassee, etc.' The Courts of First Instance should always see that suits by minors are brought in this form.
8. We have had great doubt whether we ought not to dismiss the case on this ground; but we find that the Court of First Instance has construed the heading of the plaint as if it were a suit by the minor by his next friend; and both Courts have, dealt with the case, and tried the merits of it, as if it had been brought in that form.
9. We think, therefore, that we are justified, under Section 578, as the objection is one which has not affected the determination of the suit on the merits, in confirming the judgments of the Courts below.
10. It must be thoroughly understood, however, with reference to the final decree, that it is made in favour of the minor as plaintiff and not of his mother Gour Monee Dassee. As regards the contention that the suit is bad, because the Court never gave the sanction necessary under Section 3, Act XL, 1858, it seems that the Munsiff, on the defendant's objection, put in issue the question whether a certificate under the Act was necessary, and deciding, rightly enough, that the permission of the Court was sufficient, proceeded to hold that the mere admission of the plaint sufficiently indicated that sanction was accorded. In this we think he was wrong; but we may reasonably hold that the effect of the decision on the issue was in this instance to give permission. The appellants further urge that the Court was wrong in allowing the name of another minor plaintiff to be added at a very late stage. It is sufficient, however, to say that the objection was deliberately not pressed in the lower Appellate Court. Section 32 of the Code, moreover, gives a wide discretion to the Court.
11. The appeal will be dismissed with costs.
*[Guardian ad litem to be appointed by Court.
Section 443: Where the defendant to a suit is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor, to put in the defence for such minor, and generally to act on his behalf in the conduct of the case.
A guardian for the suit is not a guardian of person of person or property within the meaning of the Indian Majority Act, 1875, Section 3.]