Proper representation of a minor in a suit and the necessity of fulfilling mandatory provisions of the Civil Procedure Code for a minor's representation.

Sundaram Chetty, J.

1. This appeal arises out of a suit filed by the plaintiffs (respondents) for the recovery of a sum of Rs. 15,446 alleged to be due on account of the payment of a decree debt in C. R. No. 55 of 1912 in the Chief Court of Lower Burma, instituted by the Bank of Rangoon, against the present plaintiffs firm as 1st defendant and S. A. Firm as the 2nd defendant. The suit is one for contribution, and interest also is claimed at what is called the Rangoon Nadappu rate, namely, 0-13-6 per cent. per mensem. In paragraph 4 of the plaint it is alleged that in respect of a joint loan of Rs. 20,000 contracted by the aforementioned two firms from the Bank of Rangoon, the said decree was obtained. The defendant in his written statement raised several pleas, one of which is that he was not really a party to the said suit, as there was no S. A. Firm as a legal entity and no business was carried on under that style by the defendant or by any persons on his behalf. He further stated that the plaintiffs should strictly prove the truth, the validity and the binding character of the loan and the decree passed thereon. The Lower Court passed a decree in favour of the plaintiffs.

2. The way in which the suit proceeded to trial, and the nature of the issues framed clearly show that the plaintiffs wanted to enforce the defendants liability for contribution on the basis of the decree alleged to have been obtained against both the firms. It is curious that the plaint is silent as to who was really represented by the S.A. Firm mentioned as the 2nd defendant in that suit. We find from the evidence that the defendants late adoptive father Subramaniam Chetty was carrying on the money-lending business as the sole proprietor under the name and style of S. A. Firm. He died leaving a will, in which he gave authority to his widow to make an adoption. Some time after his death, the present defendant, while he was a minor, is said to have been adopted by the widow in pursuance of her husbands authority. There is no doubt that at the time of the institution of the former suit the present defendant was a minor. This fact is not alleged in the plaint at all, but is indicated in the written statement. However, the question of his minority arises for consideration in determining his objection that he was not a party at all to the said suit. The evidence adduced on the plaintiffs side is to the effect, that subsequent to the death of Subramaniam Chetty, the business of the S. A. Firm was slowly wound up and they had to run that business for some time before winding it up. One Chinniah Chettiar is said to have been the executor appointed under the will of Subramaniam Chetty, and his power-of-attorney agent was Chokkalingam Chettiar (P.W. 2). The loan of Rs. 20,000 referred to in the plaint was borrowed by P.W. 2 as the agent appointed By the executor. He was succeeded by another agent Murugappa Chettiar who was mentioned in the former suit as the agent of S. A. Firm. The question is whether the present defendant who was then a minor was really represented at all in the former suit as the 2nd defendant. It is argued that under Order 30, Rule 10, Civil Procedure Code, any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. The rule may probably justify the suit as against Subramaniam Chettiar or the executor appointed by him, if the words "any person carrying on business" occurring in the aforesaid Rule 10 should be taken to mean one who is himself actually carrying on business. It is doubtful if those words apply to one who as the guardian or agent or representative of another person is carrying on the business. Be this as it may, the question that is pertinent to the present case is, whether the defendant who was really a minor at the time of the institution of that suit could be simply sued in the name of S. A. Firm, and if so, whether the other requisites laid down i