Banerji, J.:— The suit which has given rise to this appeal was brought on behalf of a minor for the avoidance of a sale-deed executed by his certificated guardian. The plaint in the suit was filed by a person who described himself as the next friend of the plaintiff. As he was not the certificated guardian, the court ordered notice to issue to the certificated guardian as required by section 440. This order was passed on an application made by the next friend who instituted the suit on behalf of the minor. Notice was served on the certificated guardian but he showed no cause. The court then proceeded to settle issues, and recorded some evidence but no formal order was recorded granting leave to the new-next friend to institute the suit. The case was transferred to the court of the learned District Judge, and before him an objection was taken to the effect that as no leave had been granted under section 440, the suit was not maintainable. This objection prevailed in the court below, and the suit has been dismissed. The learned judge was of opinion that leave to institute the suit ought to have been formally granted and recorded. Section 440 requires that 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. As we have said above, notice was issued to the certificated guardian as required by the section; it was served on him but he did not appear and show cause. It is true that no formal order granting leave was recorded by the court but as the court framed the issue and examined witnesses, it must be presumed that the court did grant leave to the person who presented the plaint, after being satisfied that it was for the welfare of the minor that that person should be permitted to institute the suit on the minor's behalf. The court below was therefore wrong in dismissing the suit. As the suit was dismissed upon a preliminary ground, and in our opinion that ground cannot he supported, we set aside the decree of the court below, and remand the case to that court under section 562 of the Code of Civil Procedure, with directions to re-admit it under its original number in the register, and dispose of it on the merits. The appellants will have the costs of this appeal, including fees on the higher scale. Other costs will abide the event.
2. Appeal allowed, cause remanded.