JUDGMENT

Harrison, J. - The plaintiff, Mt. Durga Devi, purporting to have attained majority brought this suit against Gur Narain. An objection was taken that she was still a minor, to which she replied that she was over 18 and under 21 years of age and that in his order, dated 27th Obtober 1920, the Senior Subordinate Judge had declared her to be a major, she having had a guardian, who had died and the Senior Subordinate Judge having held that, as she had married, the guardianship had lapsed and that she was a major. The facts were all candidly and truly stated, and the Subordinate Judge held that under Section 3 of the Majority Act, she was still a minor, that the fact that she was a minor was apparent on the face of the plaint and that, therefore, although an application for amendment had been put in, the application being to the effect that permission should be given to amend if the Court were of opinion that the plaintiff was still a minor, such permission should not be granted, passed an order that the plaint should be taken off the file and returned to the presenter. This forms the subject matter of the present application and it is urged that the order of the Sanior Subordinate Judge justified and legalised the action taken by the plaintiff in suing as a major, and that anyhow the amendment of the plaint should have been allowed. It has been held by all the High Courts in India except this, and the authorities are to be found in Gordhasdas Jadowji v. Harivalubhdas Bhaidas [1897] 21 Bom 281, Sadho Lal v. Murlidhar [1907] 29 All. 672, Jaraomull [Jagon Ram Marwari] v. Mahadeo Prosad Sahu [1909] 36 Cal. 768, Jambagothechi v., Rajamannaswami Mudaliar [1920] 11 L.W. 596 a ruling of the Madars High Court, and Harihar Prasad Singh v. Edul Singh [1920] 5 P.L.J. 460 a ruling of the Patna High Court, that where once a guardian has been appointed under Act VIII of 1890, however that guardianship may terminate, the minor cannot attain majority until the age of 21. A Division Bench of the Allahabad High Court once took the opposite view but that view was dissented from in Sadho Lal v. Murlidhar [1907] 29 All. 672, a Full Bench ruling The law on the subject, therefore, is perfectly clear and the order of the Senior Subordinate Judge can in no way affect the position. On the second point, however, it appears to me that the Subordinate Judge is wrong. The fact of minority is not apparent on the face of the plaint but was discovered after an enquiry. The defendant challenged the right of the plaintiff to sue as a major and on the enquiry which ensued it was discovered that the plaintiff was mistaken in thinking that she was a major as was also the Senior Subordinate Judge and that she was in fact a minor. Under these circumstances the case falls under the sub-division given as (ii)(b) under Order 32, Rule 2 by Mr. Mulla in his Commentary at page, 723, that is, where the fact is ascertained upon objection by the defendant and enquiry by the Court and it is held that the plaintiff had no knowledge of his minority and no intention of deceiving the Court. Where these facts exist an opportunity should be given on application being made to amend the plaint. The application was made, though it was not the unconditional application as it should have been but was in the common but incorrect form of a conditional application asking the Court first to decide whether it was necessary to amend the plaint and, if so, to give permission for the amendment. In spite of this irregularity there being no question as to the bona fides of the plaintiff, I think permission should have been given and I, therefore, accept the revision and direct the lower Court to allow amendment of the plaint within such time as it may fix on payment of Rs. 32 costs to the defendant. The costs of this revision will be borne by the parties.