ORDER

Sulaiman and Young, JJ. - The present suit for pre-emption was instituted by Wali Mahammad Khan alleged to be 17 years and 11 months old, under the guardianship of his mother (presumably stepmother). The defendants did not challenge the fact of the minority of the plaintiff; but a rival pre-emptor did so. The plaintiff when questioned stated that his father and mother had died when he was still a child and he did not know his correct age. The trial Court while discussing which course was preferable for Wali Mohammad, either to file the suit as major or through his next friend remarked:

In my opinion the course adopted by him was the proper one. It has not done any harm if in such a doubtful case it was (he has) chosen to file the suit through his next friend. He has himself been prosecuting his suit and has also made his statement as a witness. If he (be) major, he himself understands his interest and if (not) he is represented by his next friend.

It accordingly disallowed the objection.

2. The appellate Court without giving any specific reasons beyond remarking that the appeals could not be properly disposed of without a finding on the question of minority sent that issue for a finding. The opinions of the medical witnesses were divided and the other oral evidence was not very satisfactory, but an entry in a register of a village school in the handwriting of a deceased teacher turned the scale. The Munsif found that the plaintiff was more than 18 years old at the time of the institution of the suit. The appellate Court has thought that that was the sole point for determination and held that he was major. It has relied mainly on the entry in the register and was not impressed by the suggestion that the entry was forged. If it were necessary to find the exact date of the birth of the plaintiff and to determine whether he was within three years of his attainment of majority when the trial Court decided the suit, it may be a question whether the entry made by the teacher, without proof of his special means of knowledge was at all admissible.

3. But the only point urged in appeal is that the fact that the plaintiff was a major at the time of the institution of the suit was not sufficient for the dismissal of the claim. The view of the Court below is supported by the case of Sheorania v. Bharat Singh [1897] 20 All. 90 : (1897) A. W. N. 203 decided (1) when the old CPC was in force and Ruhul Amin v. Shanker Lal A. I. R. 1924 All. 54 : 77 I. C. 30 : 45 All. 701. The last mentioned case fully supports the view of the lower appellate Court.

4. It may be mentioned that the High Courts of Calcutta, Madras and Lahore, have dissented from the view expressed in Sheorania v. Bharat Singh [1897] 20 All. 90 : (1897) A. W. N. 203. These cases are collected in Mr. Mullah's commentary, who prefers the other view (810).

5. Without going to the other High Courts there are observations in cases of this Court also which are not easily reconcilable with the previously mentioned cases.

In the Full Bench case of Rajit Ram v. Katesar Nath [1896] 18 All. 396 : 1896 A.W.N. 102 (FB) it was laid down that if the verification of plaint was discovered to be defective the plaint may be amended, for such a defect would not of necessity result in the dismissal of the suit.

6. In the case of Basdeo v. John Smidt [1899] 22 All. 55 : (l899) A. W. N. 172 it was held that the mere fact that the plaint in a suit had not been signed by the plaintiff named therein or by any person duly authorized by him in that behalf would not necessarily make the plaint absolutely void; and that a defect in the signature of the plaint or the absence of signature, could be cured by amendment at any stage of the suit, if the suit was in fact filed with the knowledge and by the authority of the plaintiff.

7. In the case of Bombay Baroda and Central India Ry. Co. Ltd. Vs. Siyaji Mills Co., Ltd. , it was held that when a suit is instituted by a proper agent with the knowledge and by the authori