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Sri Sri Iswar Lakshmi Janardan Jiew and ors. by their Shebaits Lalit Mohan Roy and anr. Vs. Eradatullah Mallik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.119
AppellantSri Sri Iswar Lakshmi Janardan Jiew and ors. by their Shebaits Lalit Mohan Roy and anr.
RespondentEradatullah Mallik and ors.
Cases Referred and Budree Das. Mookim v. Chooney Lal Johury
Excerpt:
civil procedure code (act xiv of 1882), section 539 - suit by minor whether maintainable,--'person', meaning of. - .....court below in support of its decision is concerned, it cannot, in our opinion, be maintained. the district judge has held in substance that a suit under section 539 cannot be maintained by an infant who is interested in a public religious and charitable trust, though he is properly represented by a next friend. this view is clearly erroneous, and no intelligible reason has been suggested why the term 'person' in section 539 should be restricted to persons sui juris.3. the result, therefore, is that the decree of dismissal made bythe district judge is set aside, the plaintiffs are allowed to withdraw the suit as against the defendant eradatullah mallik with liberty to bring a fresh suit against him, upon the same cause of action; and the case is remanded to the court of first instance to.....
Judgment:

1. This is an appeal on behalf of the plaintiffs in an action commenced by them under Section 539 of the Code of 1832, against the trustees of a public religious and charitable trust, and, a transferee of trust property from them. The Court below has dismissed the suit on two grounds, first, that it is bad for misjoinder of parties and causes of action; and secondly, that the second plaintiff has no cause of action and as under Section 539 of the Code there must be at least two plaintiffs, the first plaintiff can obtain no relief. The learned Vakil for the appellants has asked for leave to withdraw the suit as against the transferee defendant Eradatullah with liberty to bring a fresh suit as against him in view of the decisions of this Court in the cases of Budh Singh Dhudhuria v. Nirad Baran Roy 2 C.L.J. 431 and Budree Das. Mookim v. Chooney Lal Johury 33 C. 789 : 10 C.W.N. 581. As one of the appellants is an infant, the question arises whether such leave ought to be granted. We are of opinion that the application is clearly for the benefit of the infant concerned, and we, therefore, sanction the application made on behalf of the plaintiffs-appellants. If the suit is withdrawn as against the transferee defendant, the objection raised on the ground of misjoinder of parties and causes of action disappears.

2. In so far as the second ground assigned by the Court below in support of its decision is concerned, it cannot, in our opinion, be maintained. The District Judge has held in substance that a suit under Section 539 cannot be maintained by an infant who is interested in a public religious and charitable trust, though he is properly represented by a next friend. This view is clearly erroneous, and no intelligible reason has been suggested why the term 'person' in Section 539 should be restricted to persons sui juris.

3. The result, therefore, is that the decree of dismissal made bythe District Judge is set aside, the plaintiffs are allowed to withdraw the suit as against the defendant Eradatullah Mallik with liberty to bring a fresh suit against him, upon the same cause of action; and the case is remanded to the Court of first instance to be dealt with on the merits as against the other defendants. The defendant No. 18 will, however, be entitled to the costs allowed in his favour by the decree of the District Judge. There will be no order as to costs in this Court.


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