KRISHNA AIYAR Vs. CHAKRAPANI; SANTHANA CHETTIAR; KRISHNA AIYAR

JUDGEMENT

(1.) I think that in the circumstances the lower Court was justified with reference to Order XXXIX, Rule 10, of the Code of Civil Procedure in paying out the money deposited by the 1st defendant.

(2.) The only objection to its procedure, which requires full consideration, is that based on its failure to demand security from the next friends of the minor 2nd plaintiff and 6th defendant.

(3.) The 2nd plaintiff s guardian, the 1st plaintiff, resists this objection on the ground that he was entitled to receive the money, because it belonged, not to the 2nd plaintiff, but to the joint family composed of the 2nd plaintiff and himself as managing member. It is no doubt true that the plaintiffs claimed partition in their plaint as between their branch of the family and other members of it; and Harihar Pershad Singh v. Mathura Lal 35 C. 561 : 12 C.W.N. 598 : 8 C.L.J. 256 supports their contention. But on the other hand, a later decision of the Privy Council, Ganesha Row v. Tulja Ram Row 19 Ind. Cas. 515 : 36 M. 295 : 17 C.W.N. 765 : 11 A.L.J. 589 : 18 C.L.J. 1 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 : 40 I.A. 132., decides that a managing member, who is also a next friend, can do nothing in the former capacity for which the leave of the Court would be required, if he acted in the latter. Following the later authority, I hold that the lower Court, in paying out to the 1st plaintiff on 2nd plaintiff s behalf without security, acted without jurisdiction.