A suit for maintenance by a minor represented by a next friend is maintainable against the father if the father is in law liable to maintain the child, as per the Hindu Adoptions and Maintenance Act, 1956 and the Maintenance Act.

1. The only question for decision in this second appeal is as to whether a suit for maintenance at the instance of a minor plaintiff represented by a next friend is maintainable against the father who is the natural guardian of the minor under the Hindu Minority and Guardianship Act 1956 (hereinafter referred to as the Guardianship Act).

2. The Ist plaintiff was a minor 9 months old on the date of the suit. He was represented by his maternal uncle as the next friend and the suit was for a declaration that the defendant the father of the minor Ist plaintiff is liable to maintain the Ist plaintiff and for future maintenance from the date of suit at the rate of Rs. 50/-per month. The plaint, refers to the marriage of Krishnakumari Amma to the defendant in May 1972, the birth of the Ist plaintiff during the subsistence of the marriage, and the divorce between Krishnakumari Amma and the defendant as per a registered document Ext. BI, at a time when the 1st plaintiff was only forty days old. The 1st plaintiff is being looked after and maintained by the 2nd plaintiff his maternal uncle. The defendant in his written statement contended that as per the divorce deed Ext. BI, the mother had undertaken to maintain the child. She is possessed of 61 cents of double crop paddy land in absolute rights and 21 cents as per an Otti deed, from the income of which the minor is being maintained.

3. The trial court found the defendant liable to maintain the child and granted a decree for maintenance at the rate of Rs. 30/- per month from the date of the suit. In appeal at the instance of the defendant, the lower appellate court has reversed the decision of the trial court and has dismissed the suit on the ground that the next friend is not competent to represent the minor and file a suit for maintenance against the father who is the legal and natural guardian of the minor under the Guardianship Act.

4. The court below has relied on the decision of a learned single judge of the Orissa High Court in Sobha Dei and another v. Bhima and others (AIR. 1975 Orissa 180) in support of its view that a minor represented by a next friend is precluded from claiming maintenance against his father who is the natural guardian entitled to represent the minor. The learned judge of the Orissa High Court has relied on the decision in Narain Singh v. Sapurna Kuer (AIR 1968 Pat. 318) in support of the proposition that a Hindu minor represented by a next friend is precluded from claiming maintenance against its natural guardian. The decision of the Patna High Court does not support the proposition laid down by the learned judge. The decision relates to the right of the mother of a Hindu minor to act as its guardian for the disposal of the minor's property when the father who is the legal and natural guardian under S.6 of the Guardianship Act is alive. As per S.6, the natural guardian of a Hindu minor in respect of its person as well as its property is the father and after him, the mother who is entitled to a preferential right to custody of a minor below the age of 5 years. It is quite clear from S.6 itself that the right to represent the minor as guardian is of the father and the mother becomes the natural and legal guardian only in the absence of the father. The decision of the Patna High Court is not an authority for the proposition that a suit by the minor represented by a next friend for maintenance will not lie against the father its natural guardian. With great respect I am unable to agree with the view expressed by the learned judge of the Orissa High Court to the above effect and according to me a suit by a minor represented by a next friend for maintenance is maintainable against the father, if the father is in law liable to maintain the child.

5. Sub-section (1) of S.20 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Maintenance Act) enjoins that a Hindu is bound during his or her lifetime, to maintain his or her legitima