Bombay High Court
Budhilal Monji vs Morarji Premji on 22 March, 1907
JUDGMENT
Jenkins, C. J.
1. This appeal arises out of a suit instituted in the name of a minor, Budhilal Manji. by his next friend Shamji Mulji
2. By an order of the 8th of April 1905 the name of Shamji Mulji was removed and that of Bai Radhabai was substituted as next friend, but this was expressed to be without prejudice to the contention of defendants 1 and 2 that the suit as originally framed was bad under Section 440 of the Civil Procedure Code.
3. This saving clause refers to the last para of Section 440, which provides that:--Every suit by a minor shall be instituted in his name by an adult person, who in such suit shall be called the next friend of the minor, and may be ordered to pay any costs in the suit as if he were the plaintiff:
4. The defendant's contention is that by the will of Manji Jivraj, the minor's father, Bai Panbai was appointed the minor's guardian, and that as the provisions of the section have not been observed this suit should be dismissed.
5. Scott J. accepting this view has dismissed the suit, and from this decree the present appeal has been preferred.
6. The points urged before us arc (1) that assuming Bai Panbai has been appointed a guardian of the minor still she was not so appointed "by an authority competent in this behalf"; (2) that a Hindu father has not the power to appoint a testamentary guardian; (3) that if there is such a power, still Bai Panbai has not been appointed; and (4) that any defect has been cured by the order of the 8th April 1905.
7. If a Hindu father has power to appoint a testamentary guardian, it is not by virtue of any statute; for Section 47 of the Indian Succession Act is not made applicable by the Hindu Wills Act to the will of a Hindu.
8. If therefore the power exists it must be under Hindu Law as distinct from Statute Law, But assuming for the sake of argument that there is such a power, an appointment in exercise of it is not in my opinion an appointment "by an authority competent in this behalf." I do not think it would be in accordance with the ordinary use of language to speak of a father whose power (if any) rests on the general Hindu Law as "an authority competent in that behalf." Scott J. it is true held that a Hindu father did come within that description, but he came to this conclusion not because this would be the natural meaning of the words, but from a comparison of this phrase with others used in the Guardians and Wards Act whereby the paragraph under consideration was incorporated in the Civil Procedure Code.
9. He thought that the phrase "authority competent in this behalf" must mean something wider than a Court of justice, and therefore he held it must include a Hindu father purporting to appoint a testamentary guardian.
10. But then it was not pointed out to the learned Judge that by certain Acts a power of appointing guardians was vested in what might well be described as an authority competent in that behalf : See Act XXX of 1858 Section 11, Act XVII of 1885, Sections 11. 13 and 4, Act XIX of 1873 Sections 199, 193 and 3 (11), and Act XXVII of 1876, Sections 167, 168, 161 and 2 so that the ground of this reasoning is considerably weakened.
11. It is clear that Section 440 does not apply to all guardians, for it would be impossible to suggest that it applies to natural guardians.
12. And if the respondents' argument is right, a guardian appointed by a Hindu father would be entitled to the benefit of Section 440 though the father himself would not.
13. I can see no reason for straining the language of the section to the extent for which the respondent contends.
14. I have for the sake of argument assumed in the respondent's favour that a Hindu father can appoint a guardian of his minor son by will, but I do not so decide, as in the view I take of the section it is not necessary that I should.
15. The result is that the decree of the learned Judge must be reversed, and the case heard on its merits.
16. The respondents must pay the appellants' costs of the appeal.