RAHUL AMIN Vs. SHANKAR LAL

JUDGEMENT

(1.) The three connected appeals before us arise out of one single suit. This was filed by Ruhul Amin, the appellant before us, as long ago as the 24 of March, 1916. The object was to set aside a transfer purporting to have been effected by a sale-deed of the 16 of November, 1906, executed by various persons, and, amongst others, by the mother of the plaintiff, who purported to act on behalf "of the plaintiff, then a minor, as his natural guardian. There was a long array of defendants, including numerous subsequent transferees of the property concerned. In the written statements of at least two of these defendants the point was taken that the plaintiff had attained majority prior to the institution of the suit, and that the plaint purporting to be signed and verified on his behalf by a next friend, namely, the father's sister's son of the plaintiff, was not valid in law, and that there had been no valid presentation of the plaint. It is impossible for us to say why the trial court ignored these pleadings at the time of the settlement of the issues. Both parties are to blame for not having insisted upon an issue being struck on a pleading of this nature, which went to the very root of the case. The plaintiff, in particular, finding it alleged against him that the suit was not even lawfully before the court, should have, in our opinion, taken prompt action. He- could either have accepted the plea regarding his majority as true in fact and asked permission to present the plaint formally to the court himself after making the trifling amendment which would have been necessary, or if he desired to stand by the allegation of his minority, he should have asked for an issue on the point. In the result the trial court went into the merits of the case and decreed a part only, though a substantial part, of the plaintiff's claim.

(2.) There were three appeals filed, one by the plaintiff himself, and one each by two sets of defendants who were dissatisfied with the decision of the trial court. The defendants who-appealed again made it a ground of objection in the lower- appellate court that there had been no valid plaint presented" to the trial court, and that the whole of the proceedings of that court were vitiated by this defect. The lower appellate court entertained this plea. It went into the facts of the case, and it found that the plaintiff had actually been born in the year 1890, so that he was over 25 years of age when the plaint was filed on his behalf by his father's sister's son. The learned Additional District Judge upon this state of facts held that-there was an incurable defect in the whole of the proceedings: in the trial court, that the decree of that court in favour of the plaintiff was a bad decree. He dismissed the plaintiff's appeal, allowed the appeals filed by the two sets of defendants-and dismissed the suit.

(3.) It is unnecessary to inquire whether the lower appellate-court could or could not have substituted for the decree of the-trial court an order returning the plaint to the plaintiff, to be presented again after proper amendment. There is some authority for the adoption of this course in a decision of the Madras High Court, which has been laid before us; but there-is no decision of this High Court lending support to such a view of the law. If there was never any valid plaint before the- court, the proper order would seem to be one rejecting the-petition tendered as a plaint and leaving it to the plaintiff to-take such further action as he might think proper. In the present circumstances the question hardly arises, because by the time the learned Additional District Judge came to dispose of the appeals before him, the period of limitation, even reckoned from the date given in the plaint, had expired.