BHUDILAL MANJI Vs. MORARJI PREMJI

JUDGEMENT

(1.) This is a suit which was filed on behalf of the minor plaintiff, who is a boy of six years of age, by a man named Shamji Muljee as next friend. It appears that after the institution of the suit Shamji Muljee disappeared from Bombay, and thereafter a woman named Radhabai applied to the Court for an order under g. 447 of the Civil Procedure Code for the appointment of a new next friend. The application was opposed by the first and second defendants, who were two of the executors of the father of the boy, on the ground that under the father's will a woman named Panbai had been appointed guardian of the person of the minor and that, therefore, under Section 440 of the Code the suit was a suit which could not be instituted except with the leave of the Court, which had not been obtained. That point was not decided by the learned Judge but by consent an order was made that Radhabai should be appointed next friend, she undertaking through her counsel to be responsible for all costs up to the date of that order not properly incurred and without prejudice to the contention of the defendants Nos. 1 and 2 that the suit as originally framed was bad under Section 440 of the Code of Civil Procedure. As the learned Judge did not decide that point, it falls to me to decide it as it has been argued by Mr. Davar on behalf of the first and second defendants.

(2.) Now the words of Section 440, which has been relied upon are "If a minor has a guardian appointed or declared by an authority competent in this behalf, a suit shall not be instituted on behalf of the minor by any person other than such guardian except with the leave of the Court granted after notice to such guardian."

(3.) It is conceded that Shamjee who instituted the suit as next friend was not a guardian "appointed or declared by an authority competent in this behalf." It is conceded that the leave of the Court was not obtained for the institution of the suit.