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1921 Supreme(Mad) 41
IN THE HIGH COURT OF MARAS
Kancherla Kanakayya
Versus
Mulpuru Kotayya
Decided On : 4 February, 1921
A next friend of a minor cannot transfer a decree to a third party without the leave of the Court, and the court can give its sanction at any stage.
Headnote:
Transfer of Decree - Next Friend of a Minor - The court held that a next friend of a minor cannot transfer a decree to a third party without the leave of the Court, as every agreement by a next friend on behalf of a minor with reference to the suit requires the leave of the court. The word 'suit' in this rule does not only refer to a suit in which a decree has not been passed, and the court can give its sanction at any stage.
Fact of the Case:
The next friend of a minor sought to transfer a decree in the minor's favor to a third party without the leave of the Court.
Finding of the Court:
The Court found that the next friend of a minor cannot transfer a decree to a third party without the leave of the Court, and the matter was remanded to the District Munsif for consideration whether the transfer would be for the benefit of the minor.
Issues: The issue was whether a next friend of a minor can transfer a decree to a third party without the leave of the Court.
Ratio Decidendi: Every agreement by a next friend on behalf of a minor with reference to the suit requires the leave of the court, and the word 'suit' in this rule does not only refer to a suit in which a decree has not been passed.
Final Decision: The appeal was remanded to the District Munsif for consideration whether the transfer would be for the benefit of the minor, and costs in this and in the Lower Appellate Court will abide the result.
1. The question in this appeal is whether the next friend of a minor can after obtaining a decree in the minors favour transfer that decree to a third party without the leave of the Court.
2. A transfer involves an agreement between the transferor and the transferee, and under Order 32, Rule 7 every agreement by a next friend on behalf of a minor with reference to the suit in which he acts requires the leave, of the court.
3. There is no reason for reading the word "suit" in this rule as meaning only a suit in which a decree has not been passed.
4. We do not find anything in the context to suggest this, and we must dissent from the opinion of Abdur Rahim and Odgers, JJ. in Govindarajulu Naidoo v. Ranga Rao (1920) 40 M.L.J. 124 on this point and follow that of Sadasiva Ayyar and Moore, JJ., in Shaik Davud Rowthcr v. Paramasami Pillai (1915) 31 M.L.J. 207 which adopts a contrary view and does not seem to have been brought to the notice of the learned Judges who decided Govindarajulu Naidoo v. Ranga Row (1920) 40 M.L.J. 124.
5. There is nothing to prohibit the court giving its sanction at any stage. The appeal will be remanded to the District Munsif of Nuzwid for consideration whether the transfer will be for the benefit of the minor and for passing orders accordingly. Costs in this and in the Lower Appellate Court will abide the result.
