R.S. Pathak, C.J.
1. This is a plaintiffs' appeal arising out of a suit for pre-emption.
2. The plaintiffs are three minors. The suit was instituted through their next friend. Ram Kishan. The trial Court decreed the suit. An appeal was filed by the vendees. On August 16, 1975 the learned District Judge, Solan allowed the appeal and dismissed the suit on the ground that Ram Kishan could not constitute himself the next friend of the minors as his interest in the suit was adverse to that of minors. The plaintiffs appeal.
3. The learned District Judge has come to the conclusion that Ram Kishan could not properly be the next friend of the minors because he was not related to the minors, and that it seemed that the real intention of Ram Kishan was to manage the land in dispute for his own benefit. Learned counsel for the appellants urges that the considerations which prevailed with the learned District Judge are erroneous, and that in any event the suit should not have been dismissed but the learned District Judge should have considered an application filed before him praying that the grandmother of the minors should be substituted as their next friend.
4. In my opinion, the considerations which weighed with the learned District Judge in dismissing the suit are misconceived. The learned District Judge has assumed, without any evidence to support the assumption, that Ram Kishan was pursuing the suit with the intention of seizing the property for himself. He has been influenced by the circumstance that Ram Kishan is not related to the minors. He has omitted to consider that the father of the minors, being the vendor in the impugned transaction, could not constitute himself the next friend of the minors. There were left only the mother and the grandmother of the minors, and it is not surprising that a man outside the family considered it appropriate to come forward and institute the suit for the minors.
5. However, even if the learned District Judge was of opinion that Ram Kishan was not an appropriate person to be the next friend of the minors, he should not have dismissed the suit. He should have investigated whether it was not possible to substitute somebody more appropriate as the next friend in place of Ram Kishan. In Kirat Narayan v. Chanchal Das. AIR 1921 Pat 103 (1) the Patna High Court held that if the court below was of the view that the interest of the next friend of the minor was adverse to that of the minor it should proceed under Rules 9 and 10 of Order 32 of the Code of Civil Procedure, but that it has no jurisdiction to dismiss the suit. In the present case, learned counsel for the appellants states that Ram Kishan is prepared to step down from the position of next friend, and that the mother or the grandmother of the minors may be constituted their next friend. The suggestion appears reasonable.
6. Accordingly, I set aside the judgment and decree of the learned District Judge dated August 16, 1975 and remand the case for fresh decision in accordance with the observations made above. The learned District Judge will take up the matter now and determine who should be appointed as the next friend of theminors in place of Ram Kishan. In the circumstances, there was no order as to costs.
7. The parties will appear before the learned District Judge on August 17, 1977. The record of the case will be sent down forthwith to the Court of the learned District Judge, Solan.