ABDUL RAHIM ABDUL SIDIQUE Vs. SHANTILAL VANECHAND

JUDGEMENT

(1.) A very short point of law arises in this revision application. The facts giving rise to the revision application are few and may be briefly stated as follows. the plaintiffs filed a suit against the defendants to recover possession of a motor truck under an agreement dated 6th January 1962. The agreement was executed by the first defendant who is the son of the second defendant. The defendants in their written statement contended that the first defendant was a minor at the date of the suit and the suit was therefore incompetent against him. The defendants also alleged that since at the date of the agreement the first defendant was a minor the agreement even if executed by him was void. Various other defences were also raised on behalf of the defendants but it is not necessary to refer to them for the purpose of deciding the present revision application. On the pleadings of the parties several issues were raised by the learned trial Judge and out of those issues he decided to try the following two issues as preliminary issues :

(2.) The main contention urged on behalf of the defendants was that since the first defendant alleged that he was a minor at the date of the suit it was not competent to the learned trial Judge to decide the preliminary issues without holding an inquiry for the purpose of satisfying himself as to whether the first defendant was in fact a minor or not and therefore the decision of the learned trial Judge on the preliminary issues was without jurisdiction. This contention is clearly well-founded and it is not possible to support the decision of the learned trial Judge. It is now well-settled that a minor cannot be treated as if he were of full age during the investigation of any material averment in the suit. If a defendant in a suit claims to be a minor the Court trying the suit must first satisfy itself as to his minority for if in fact he is a minor no question arising in the suit can be decided without appointing a guardian for him. The Court must even for the purpose of holding an inquiry into the minority of the defendant appoint a guardian for the defendant. Not to do so would be to assume the defendant who claims to be a minor not to be a minor and thereby to ignore the general principle that a minor cannot act for himself. It is therefore evident that since the first defendant raised the plea that he was a minor at the date of the suit the learned trial Judge should have first held an inquiry into the minority of the first defendant after appointing a guardian for him and if the first defendant was found to be a minor at the date of the suit the learned trial Judge ought to have appointed a guardian for the first defendant and then proceeded to decide the preliminary issues and if on the other hand the first defendant was found not to be a minor at the date of the suit the learned trial Judge should have allowed the first defendant to conduct his own defence and proceeded to decide the preliminary issues. The learned trial Judge was clearly in error in deciding the preliminary issues without appointing a guardian for the first defendant and satisfying himself as to the fact of minority of the first defendant. The decision of the learned trial Judge must accordingly be held to be without jurisdiction and hence liable to be revised in the exercise of the revisional jurisdiction of this Court.

(3.) The plaintiffs however urged that this contention was not raised on behalf of the defendants at the hearing of the preliminary issues before the learned trial Judge and the defendants should not therefore be allowed to raise it for the first time in the present revision application. But there is no substance in this plea of the learned trial Judge and moreover if the first defendant was a minor as alleged by him he was incompetent to defend the suit on the preliminary issues and in that event it could not be validly urged against him that he should have raised this point before the learned trial Judge. It was also contended on behalf of the plaintiffs that in any event the first defendant had become a major subsequent to the decision of the learned trial Judge and he was therefore now competent to defend the suit. But that does not help the plaintiffs for if the case of the first defendant be true he was a minor at the date of the trial of the preliminary issues and the learned trial Judge could not therefore proceed with the trial of the preliminary issues without appointing a guardian for him. It is no doubt true that the first defendant was a minor at the date of the filing of the revision application through his next friend but even on his own case he became a major long prior to the date of the hearing of the revision application and the revision application cannot therefore be thrown out on the ground that it was filed by him without a next friend.