JUDGMENT

1. This appeal was referred to a Bench for decision on a point of law under Section 14(2), Oudh Courts Act, by the Honourable Radha Krishna Srivastava, J., now deceased. The point is whether Section 2(a), Majority Act, does or does mot prevent a Mahomedan girl of 15 years of age from bringing a suit otherwise than through a next friend. Section 2(a) rims as follows:

Nothing herein contained shall affect (a) the capacity of any person to act in the following matters (namely), marriage, dower, divorce and adoption.

2. In the present case the facts are that the respondent, who was at the time of bringing the suit 17 years of age, brought the suit through her next friend. No objection was taken in the trial Court, but after she had obtained her decree, it was argued in appeal that since she had brought the suit through her next friend and not by herself as she could and should have done under Section 2(a), Majority Act, the decree is a nullity. The authority for the proposition that in such circumstances the decree is a nullity is to be found in Suraj Bakhsh Singh v. Phaldan Singh, A.I.R. 1938 Oudh 213, a Bench decision of this Court:

When a Court dealing with a case finds that the plaintiff had attained majority before the institution of his case by the guardian, it has no jurisdiction to proceed with the suit.

3. Where such a decree has been passed without jurisdiction it is a nullity and the executing Court may refuse to execute it. The appellant's learned Counsel argues that Section 2(a) is a saving clause and the Majority Act has no application to anything connected with marriage, dower, divorce and adoption. Further he says that to bring a suit for dower is certainly to act in the matter of dower, and therefore the lady upon reaching the age of 15 could have brought the suit herself, and as it is shown that she was 17 at the time of filing the plaint, the decree is a nullity. We find, however, that Section 2(a) cannot be so broadly construed as this. As is pointed out by the respondent's learned Counsel, dower and divorce are themselves connected with marriage, and if the words "to act in the matter of marriage" were given the expanded meaning which is attached to them by the appellant's learned Counsel, then it would only be necessary to say, "the capacity of any person to act in the following matters, namely, marriage and adoption." He therefore argues that these words must be construed in a restricted sense, and that "to act in the matter of marriage" means only to enter into the contract of marriage. For this proposition he has some authority. Thus, it was held in Abi Dhunimsa Bibi v. Mahammad Fathi Uddin, A.I.R. 1918 Mad. 319 and Najmunnissa Begum v. Sirajuddin Ahmad Khan, A.I.R. 1939 Pat. 133 that to relinquish dower is not "to act in the matter of dower" within the meaning of Section 2(a), Majority Act. The contrary view was, however, held in Qasim Husain Beg. v. Kaniz Sakina, AIR1932All649 . In Maung Tun Aung v. Ma E Kyi, A.I.R. 1936 Rang. 212 it was held in respect of marriage that the words' "to act in the matter of marriage" were not applicable to a pre-nuptial agreement to contract a marriage in the future. Prom these rulings we see that three of the High Courts in India have given only a restricted meaning to Section 2(a) and we think that this is the correct view.

4. The respondent's learned Counsel also points out that though a Mahomedan minor of 15 years of age is permitted by Section 2(a) to marry, make a contract of dower, etc., she does not cease to be a minor. Section 2(a) merely relieves her of some of the consequences of her minority, but she remains a minor none the less. That being so, the provisions of Order 32, Rule 1, Civil P.C., still apply. So in respect of the institution of suits she will have to act through her next friend. We believe this to be the more correct view of the law. We therefore hold that Mt. Khatoon Banu was justified in suing for dower through her next friend and her dec