Krishna Aiyar v. Chakrapani

1. I think that in the circumstances the lower Court was justified with reference to O. 39, R. 10 of the CPC 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 ??? plaintiff and 6th defendant.

3. The 2nd plaintiff's guardian, the ??? 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.

4. 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(1) supports their contention. But on the other hand, a later decision of the Privy Council, Ganesha Row v. Tulja Ram Row(2), 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.

5. In the 6th defendant's case the question is whether his guardian ad litem, to whom payment was made without security, was exempt from the obligation to give it under O. 32, R. 6(2) of the CPC, on the ground that he was appointed guardian of the 6th defendant's property by the latter's father's will. Following Kanakasabhai Mudaliar v. Ponnusami Mudaliar(3) and Budhi Lal v. Morarji(4), I must hold that he has not been appointed guardian by competent authority and that he should, therefore, have been called on for security.

6. The lower Court's orders must be set aside. The next friends of the 2nd plaintiff and the guardian ad litem of the 6th defendant must give security for what they have drawn to the satisfaction of the lower Court within 15 days from the receipt by it of this order and must give such security before drawing any further sums. If security is not given as directed above, the next friend and guardian must pay back the money. They must pay the 1st defendant's costs of these petitions.

S.N/R.K

7. Petitions allowed.