A.H. Khan JUDGMENT
1. The facts out of which this second appeal arises in short are that Ramchandra Rao Shitole, as the next friend of Vijaysinghrao (minor) filed a suit in the Court of the Civil Judge, Gwalior alleging that the sale made by the father of the minor, of a part of a house in favour of Jeewanlal was without necessity, that the sale should be set aside and that the possession of the property in dispute be handed over to the guardian, Among other pleas raised by the defendant, one was that because the property in dispute had been sold by the natural guardian, only the minor on attaining majority could bring a suit for setting aside the sale, and that during the subsistence of the minority, the suit by the present guardian of the minor (who is, by the way, admittedly a guardian appointed by the court under Guardians and Wards Act) does not lie and the suit is therefore premature. The trial Court upheld this contention and, dismissed the suit as being premature. This decision was affirmed in appeal by the learned District Judge, Gwalior. This is now plaintiff's second appeal.
2. According to English Common Law, the rights of minors were specially protected, and time did not run against minors. They were allowed to institute a suit within a specified time after the impediment of minority was removed. This principle has been incorporated in Section 6 of the Limitation Act. But this protection, which was extended to the minors, did not prevent a minor from instituting a suit through his next friend during minority. This is evident from Order 32, Rule 1 C. P. C. It will thus be observed that a minor has two rights : (1) he can bring a suit within a specified time after the termination of his minority, (2) that even during the subsistence of his minority, he can institute a suit through his next friend.
3. In the present suit, of the two remedies open to a minor the latter has been adopted namely, the institution of the suit through the next friend. The decisions of the courts below seem to suggest that because it is open to the minor to bring a suit after the termination of his minority, he cannot during the continuation of his minority file a suit through his next friend. No authority has been cited by the lower courts for the extraordinary view taken by them. One of the obvious advantages in allowing a minor to institute a suit during his minority is that much of the valuable evidence may be lost, if the suit were to be instituted only after the minor had attained majority, and this appears to be one of the reasons why Order 32 Rule 1 C. P. C, was enacted. To hold that a minor during his minority cannot institute a suit would render the provisions of Order 32, Rule 1 C. P. C. futile and superfluous.
4. In the view that I take of the matter, I have no doubt that the suit is maintainable and it cannot be dismissed as being premature.
5. For reasons stated above, the appeal is allowed and setting aside the judgments of both the courts below, the case is sent back to the trial Court for the decision of issues that have remained undecided. Costs of this appeal shall be provided in revised decision of the trial Court.
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