NAGAIAH AND ANOTHER versus SMT. CHOWDAMMA (DEAD) BY LRS. AND ANOTHER on 8 January 2018

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SUPREME COURT REPORTS

[2018] 1 S.C.R.

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NAGAIAH AND ANOTHER

v.

SMT. CHOWDAMMA (DEAD) BY LRS. AND ANOTHER

(Civil Appeal No. 22969 of 2017)

JANUARY 08, 2018B[ARUN MISHRA ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Code of Civil Procedure, 1908:

Or. XXXII, rr.1,3,6,7,9,12,13 and 14 – Suit by plaintiff No.1on his as well as on behalf of his minor brother (Plaintiff No.2) –CAgainst their father (defendant No.1) – Seeking declaration thatthey were entitled to 2/3rd share in the property and sale deedexecuted by their father (defendant No.1) in favour of defendantNo.2 was not binding on their 2/3rd share – Trial court dismissedthe suit on merit – First appellate court decreed the suit – HighDcourt, in second appeal, dismissed the suit on the ground thatplaintiff No.1 could not act as the guardian of plaintiff No.2 duringthe life-time of their father i.e. defendant No.1 (the natural guardianof plaintiff No.2) without permission of the court – On appeal, held:Plaintiff No.1 does not come within meaning of ‘guardian’ asspecified in sub-section (b) of s.4 of Hindu Guardianship Act –EPresent case is governed by Or. XXXII of CPC – A suit by a minorcan be filed by the ‘next friend’ of the minor and no permission isnecessary for the ‘next friend’ to institute the suit – But if suit isfiled against the minor, it is obligatory for the plaintiff to get theappropriate ‘guardian ad litem’ appointed by the Court – A decreeFcannot be set aise even where formalities for appointment of aguardian ad litem have not been observed, if no prejudice is causedto the minor defendant – In the present case ‘next friend’ wascompetent to represent the minor – Further no prejudice was causedto the minor plaintiff – If the natural guardian has adverse interestagainst minor, he cannot represent the minor in a law suit – TheGinterest of natural guardian, in the present case was adverse to theminor plaintiff – Rules 12, 13 and 14 also empowers the minor onattaining majority, either to proceed with or to abandon the suit –The minor plaintiff in present suit continued the suit after attainingmajority – Principles arising out of Guardian and Wards Act, 1890H

and Hindu Guardianship Act, may not be apposite to the ‘next friend’appointed u/Or. XXXII CPC – Therefore, impugned order relyingupon provisions of Hindu Guardianship Act to non-suit plaintiffNo.2 is not justified – Matter remitted to High Court for freshdecision on merit – Hindu Guardianship Act, 1956 – s.4(b) –Guardians and Wards Act, 1890.

Or.XXXII, rr.1 and 3 - ‘Next friend’ and ‘Guardian-ad-Litem’– Distinction between – Discussed – Hindu Guardianship Act, 1956.

Allowing the appeal and remitting the matter to High Court,the Court HELD: 1. Plaintiff no.1 did not and does not come withinthe meaning of a “Guardian” as specified in sub-section (b) ofSection 4 of the Hindu Guardianship Act. But the present factsare not governed by the provisions of Hindu Guardianship Act;rather they are governed by Order XXXII CPC. [Para 6][183-D-E]

Conclusion

2. A bare reading of Order XXXII, Rule 1 of CPC makes itamply clear that every suit by a minor shall be instituted in hisname by a person who in such suit shall be called the “next friend”of the minor. The next friend need not necessarily be a dulyappointed guardian as specified under Sub-Section (b) of Section4 of Hindu Guardianship Act. “Next friend” acts for the benefitof the “minor” or other person who is unable to look after his orher own interests or manage his or her own law suit (person notsui juris) without being a regularly appointed guardian as perHindu Guardianship Act. He acts as an officer of the Court,especially appearing to look after the interests of a minor or adisabled person whom he represents in a particular matter. Theafore-said provision authorises filing of the suit on behalf of theminor by a next friend. If a suit by minor is instituted without thenext friend, the plaint would be taken off the file as per Rule 2 ofOrder XXXII of CPC. Order XXXII Rules 1 and 3 of the Codetogether make a distinction between a next friend and a guardianad litem; i.e., (a) where the suit is filed on behalf of a minor and(b) where the suit is filed against a minor. In case, where the suitis filed on behalf of the minor, no permission or leave of the Courtis necessary for the next friend to institute the suit, whereas if A

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Athe suit is filed against a minor, it is obligatory for the plaintiff toget the appropriate guardian ad litem appointed by the Court forsuch minor. A “guardian ad litem” is a special guardian appointedby a court in which a particular litigation is pending to representa minor/infant, etc. in that particular litigation and the status ofguardian ad litem exists in that specific litigation in whichBappointment occurs. [Para 6][140-C-G]

Kaliammal, minor by Guardian, Patta Goundan v.Ramaswamy Goundan AIR 1949 Mad. 859; K. Kumarv. Onkar Nath AIR 1972 All 81; Gopalaswamy Gounderv. Ramaswamy Kounder AIR 2006 Ker 138 – referred Cto.

3. The decree cannot be set aside even where certainformalities for the appointment of a guardian ad litem to representthe defendant have not been observed. In the case of minordefendants, where the permission of the Court concerned underDOrder XXXII Rule 3 of the CPC is not taken, but the decree hasbeen passed, in the absence of prejudice to the minor defendant,such decree cannot be set aside. The main test is that there hasto be a prejudice to the minor defendant for setting aside thedecree. In the present case, the suit was filed on behalf of theEminor and therefore the next friend was competent to representthe minor. Further, admittedly no prejudice was caused to plaintiffno. 2. [Para 8][141-G-H; 142-A-C]

Brij Kishore Lal v. Satnarain Lal & Ors. AIR 1954 All.599; Anandram & Anr. v. Madholal & Ors.AIR 1960FRaj. 189; Rangammal v. Minor Appasami & Ors.AIR 1973 Mad. 12; Chater Bhuj Goel v. Gurpreet SinghAIR 1983 Punjab 406; Shri Mohd. Yusuf and Ors. v.Shri Rafiquddin Siddiqui ILR 1974 (1) Delhi 825 –referred to.

G4. “Guardian” as defined under the Hindu GuardianshipAct is a different concept from the concept of “next friend” orthe “Guardian ad litem”. Representation by “next friend” of minorplaintiff or by “guardian ad litem” of minor defendant is purelytemporary, that too for the purposes of that particular law suit.[Para 9][142-D]H

5. Instituting a suit on behalf of minor by a next friend or torepresent a minor defendant in the suit by a guardian ad litem isa time-tested procedure which is in place to protect the interestsof the minor in civil litigation. The only practical differencebetween a “next friend” and a “guardian ad litem” is that thenext friend is a person who represents a minor who commencesa lawsuit; guardian ad litem is a person appointed by the Court torepresent a minor who has been a defendant in the suit. Before aminor commences suit, a conscious decision is made concerningthe deserving adult (next friend) through whom the suit will beinstituted. The guardian ad litem is appointed by Court andwhereas the next friend is not. The next friend and the guardianad litem possess similar powers and responsibilities. Both aresubject to control by the Court and may be removed by the Courtif the best interest of the minor so requires. [Para 16][145-A-C]

6. There is no hurdle for a natural guardian or dulyconstituted guardian as defined under Hindu Guardianship Actto represent minor plaintiff or defendant in a law suit. But suchguardian should not have adverse interest against minor. If thenatural guardian or the duly constituted guardian has adverseinterest against the minor in the law suit, then a next friend orguardian ad litem, as the case may be, would represent the minorin the civil litigation. [Para 10][142-E]

7. The rights and restrictions of the natural guardianprovided under the Hindu Guardianship Act do not conflict withthe procedure for filing a suit by a next friend on behalf of theminor. Not only is there no express prohibition, but a reading ofOrder XXXII of the CPC would go to show that wherever thelegislature thought it proper to restrict the right of the next friend,it has expressly provided for it in Rules 6 and 7 of Order XXXII[Para 11][142-G-H; 143-A]

8. The principles arising out of the Guardians and WardsAct, 1890 and the Hindu Guardianship Act may not be appositeto the next friend appointed under Order XXXII of the CPC. Theappointment of a guardian ad litem to represent the defendant ora next friend to represent the plaintiff in a suit is limited only forthe suit and after the discharge of that guardian ad litem/nextfriend, the right/ duty of guardian as defined under sub-section A

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A(b) of Section 4 of the Hindu Guardianship Act (if he has no adverseinterest) automatically continues as guardian. In other words, anext friend representing the minor in the suit under Order XXXII,Rule 1 of the CPC, will not take away the right of the dulyappointed guardian under the Hindu Guardianship Act as long assuch guardian does not have an adverse interest or such dulyBappointed guardian is not removed as per that Act. [Para 12][143-G-H; 144-A-B]

9. Order XXXII, Rules 12, 13 and 14 of the CPC empowerthe minor plaintiff to take a decision either to proceed with thesuit or to abandon the suit, after attaining majority. Thus, afterCattaining majority, if the plaintiff elects to proceed with the suit,he may do so by making an application, consequent upon whichthe next friend ceases to represent the minor plaintiff from thedate of attaining majority by the minor. Plaintiff No. 2 on attainingmajority has continued with the suit, which means he has elected Dto proceed with the suit. [Para 11][143-C, F-G]

Dto proceed with the suit. [Para 11][143-C, F-G]

10. In the present case, respondent No.2/defendant 1,though was the father of plaintiff No.2 could not have representedplaintiff No.2 in the present suit as his guardian, because hisinterest was adverse to that of plaintiff No.2. A number ofEallegations are made against the natural guardian by plaintiff no.2in the suit while questioning the validity of the sale deed. On theother hand, plaintiff no.1 (elder brother of plaintiff No.2) who didnot have any adverse interest to that of plaintiff no.2, has properlyrepresented plaintiff No.2 as his next friend. The plaintiff No.2has not made a single allegation against the plaintiff No.1/his nextFfriend, after he attained majority. The minor-plaintiff No.2 hadattained majority within one year from the date of filing of thesuit. Evidence of PW1 was recorded much prior to the recordingof evidence of any of the witnesses, plaintiff No.2 had attainedmajority and he had by then elected to continue with the suit. ItGis also relevant to note that plaintiff No.2 is pursuing the matterfrom the date of attaining majority till this date on his own.Therefore, it was not open for the High Court to non-suit plaintiff No.2. [Paras 13, 14][144-C-F]

11. Therefore, the impugned order relying upon theHprovisions of Hindu Guardianship Act to non-suit plaintiff No.2 is A

not justified. Having regard to the totality of the facts andcircumstances of the case, it would be just and proper if the matteris remitted to the High Court for a fresh decision on merits inaccordance with law. [Para 17][145-D]

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 22969of 2017.

From the Judgment and Order dated 08.01.2013 of the High Courtof Karnataka at Bangalore in Regular Second Appeal No. 1102 of 2004.

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Nikhil Majithia (For Yadav Narender Singh), Adv. for theAppellants.

Nishanth Patil, Parsanna Mohan, Anup Jain, Advs. for theRespondents.

The Judgment of the Court was delivered by F

MOHAN M. SHANTANAGOUDAR, J. 1. The judgmentdated 08.01.2013 passed by the High Court of Karnataka at Bangalorein Regular Second Appeal No. 1102 of 2004 is called in question in thisappeal by the unsuccessful plaintiffs.

2. Brief facts leading to this appeal are: Original Suit No. 228 of1989 was filed by the appellants herein (plaintiffs 1 and 2 respectively inthe suit) praying for a declaration that the suit schedule property is thejoint property of the appellants along with their father Kempaiah(defendant no.1 in the suit/respondent no.2 herein) and that they areentitled to 2/3[rd] share in the said property; that the sale deed executed G

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Aby the father-Kempaiah (defendant no.1 in the suit/respondent no.2herein) in favour of defendant no.2/respondent no.1-Chowdamma wasnot binding on their 2/3[rd] share in the suit schedule property. A relief forpermanent injunction was also sought. A certain set of other facts wasalso pleaded which may not be material for the disposal of this appeal.It is relevant to note that at the time of filing of the suit, i.e. on 24.01.1985,Bthe appellant no.2 herein, namely, Krishna was aged about 17 years.The appellant no.1/Plaintiff No.1 herein being the elder brother of appellantno.2 filed the suit not only on his personal behalf but also on behalf of thesecond appellant-second plaintiff (who was a minor).

3. The trial Court dismissed the suit on merits. The first AppellateCCourt allowed the Regular Appeal No. 90 of 2003 filed by theunsuccessful plaintiffs and decreed the suit. Aggrieved by the judgmentof the first appellate Court, the unsuccessful defendant no.2-Chowdamma/purchaser of the property filed Regular Second Appealbefore the High Court of Karnataka at Bangalore.

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By the impugned judgment, the High Court has allowed the appealand dismissed the suit mainly on the ground that the plaintiff no.1 beingthe elder brother could not act as the guardian of plaintiff no.2 during thelife-time of Kempaiah, the father of the plaintiffs (defendant no.1),inasmuch as plaintiff no.1/appellant no.1 was not appointed as a guardianEof the minor plaintiff no. 2 by any competent Court. Since the firstdefendant is the father of plaintiff no.2, he was the natural guardian andhence he could only represent plaintiff no.2 and none else.

It is to be noted that no issue was raised in the trial Court withregard to competency of plaintiff No.1 to represent plaintiff no.2 in theFsuit. Even in the first appellate Court, such question was not raised,hence not considered. However, the High Court seems to have permittedsuch question to be raised for the first time in the second appeal, since itis purely a question of law.

4. Hence, the only question to be decided in this appeal is, whetherGthe first plaintiff being the elder brother of minor second plaintiff (at thetime of filing of the suit) could have filed the suit on behalf of the minoras his next friend/guardian.

5. The High Court, while coming to the conclusion that the firstplaintiff could not have acted as a guardian of the minor- second plaintiff,has relied upon Section 4(b) of the Hindu Minority and Guardianship ActH

(hereinafter called as ‘Hindu Guardianship Act’). Sub-Section (b) ofSection 4 of the Hindu Guardianship Act reads as under:

“(b) “guardian” means a person having the care of the personof a minor or of his property or of both his person and property,and includes—

(i) a natural guardian,

(ii) a guardian appointed by the will of the minor’s father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactmentrelating to any court of wards;”

As mentioned supra, the High Court has ruled that defendant no.1,being the father of minor plaintiff no.2, is the natural guardian of plaintiffno.2 and consequently plaintiff no.1 could not have acted as the guardianin the suit on behalf of minor plaintiff, particularly when he was notappointed as a guardian by any competent court of law. In our consideredopinion, the High Court has totally misdirected itself while concludingso.

6. There cannot be any dispute that the plaintiff no.1 did not anddoes not come within the meaning of a “Guardian” as specified in sub-section (b) of Section 4 of the Hindu Guardianship Act. But the presentfacts are not governed by the provisions of Hindu Guardianship Act;rather they are governed by Order XXXII of the Code of Civil Procedure(hereinafter referred to “Code”). To decide the present controversy itwould be relevant to note the following provisions as contained in OrderXXXII, Rules 1, 3, 6, 7, 9, 12, 13 and 14 of the Code (as amended inKarnataka State, since the matter is from Karnataka State) :

1. Minor to sue by next friend.–Every suit by a minor shall beinstituted in his name by a person who in such suit shall be calledthe next friend of the minor.

18[Explanation: In this Order, “minor” means a person who hasnot attained his majority within the meaning of Section 3 of theIndian Majority Act, 1875 (9 of 1875), where the suit relates toany of the matters mentioned in clauses (a) and (b) of Section 2of that Act or to any other matter.]

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2. Where suit is instituted without next friend, plaint to betaken off the file.– (1) Where a suit is instituted by or on behalfof a minor without a next friend, the defendant may apply to havethe plaint taken off the file, with costs to be paid by the pleader orother person by whom it was presented.

(2) Notice of such application shall be given to such person, andthe Court, after hearing his objections (if any) may make suchorder in the matter as it thinks fit.

3. Qualifications to be a next friend or guardian.— (1) Anyperson who is of sound mind and has attained majority may act asnext friend of a minor or as his guardian for the suit:

Provided that the interest of that person is not adverse to that ofthe minor and that he is not, in the case of next friend, a defendant,or, in the case of a guardian for the suit, a plaintiff

(2) Appointed or declared guardians to be preferred and to besuperseded only for reasons recorded.— Where a minor has aguardian appointed or declared by competent authority, no personother than the guardian shall act as the next friend of the minor orbe appointed his guardian for the suit unless the Court considers,for reasons to be recorded, that it is for the minor’s welfare thatanother person he permitted to act or oe appointed as the casemay be.

(3) Where the defendant is a minor, the Court on being satisfiedof the fact of his minority shall appoint a proper person to beguardian for the suit for the minor. A person appointed as guardianunder this sub-rule, shall, unless his appointment is terminated byretirement or removal by order of Court on application made forthe purpose or by his death, continue throughout all proceedingsin the suit or arising out of the suit including proceedings in anyappeal or in revision and any proceedings in execution of a decreeand the service of any process in any such proceeding on the saidguardian if duly made shall be deemed to be good service for thepurposes of such proceedings.

(4) An order for the appointment of a guardian for the suit may beobtained upon an application in the name and on behalf of theminor or by the plaintiff. The application where it is by the plaintiff shall whenever necessary set forth in the order of their suitabilitya list of persons who are competent and qualified to act as guardianfor the suit for the minor defendant.

(5) The application referred to in the last preceding sub-rule whethermade by the plaintiff or on behalf of the minor defendant shall besupported by an affidavit verifying the fact that the proposedguardian has not or that no one of the proposed guardians has anyinterest in the matters in controversy in the suit adverse to that ofthe minor and that the proposed guardian or guardians are fitpersons to be so appointed. The affidavit shall further stateaccording to the circumstances of each case particulars of anyexisting guardian appointed or declared by competent authority,the name and address of the person, if any, who is the de factoguardian of the minor, the names and addresses of persons, if any,who, in the event of either the natural or the de facto guardian orthe guardian appointed or declared by competent authority, notbeing permitted to act, are by reason of relationship or interest, orotherwise suitable persons to act as guardians for the minor forthe suit.

(6) An application for the appointment of a guardian for the suit ofa minor shall not be combined with an application for bringing onrecord the legal representative of a deceased party.

(7) No order shall be made on any application under sub-rule (4)above except upon notice to the minor and also to any guardian ofthe minor appointed or declared by an authority competent in thatbehalf, or where there is no such guardian upon notice to thefather or natural guardian of the minor or where there is no fatheror natural guardian upon notice to the person in whose actualcare the minor is and after hearing any objection which may beurged on behalf of any person so served with notice. The noticerequired by this sub-rule shall be served at least seven clear daysbefore the day named in the notice for hearing of the application.

(8) Where none of the persons mentioned in the last precedingsub-rule is willing to act as guardian, the Court shall direct noticeto other person or persons proposed for appointment as guardianeither simultaneously to some or all of them or successively as itmay consider convenient or desirable in the circumstances of the A

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case. The Court shall appoint such person as it thinks proper fromamong those who have signified their consent and intimate thefact of such appointment to the person appointed by registeredpost unless he is present at the time of appointment either in personor by pleader.

(9) No person shall be appointed guardian for the suit without hisconsent and except in cases where an applicant himself prays forhis appointment as guardian notices issued shall clearly requirethe party served to signify his consent or refusal to act as guardian.

(10) Where the Court finds no person fit and willing to act asguardian for the suit the Court may appoint any of its officers or apleader of the Court to be a guardian and may direct that costs tobe incurred by that officer or pleader in the performance of hisduties as guardian shall be borne either by the parties or by anyone or more of the parties to the suit or out of any fund in Court inwhich the minor is interested and may give direction for therepayment or allowance of the costs as justice and thecircumstances of the case may require.

(11) When a guardian for the suit as a minor defendant is appointedand it is made to appear to the Court that the guardian is not inpossession of any or sufficient funds for the conduct of the suit onbehalf of the defendant and that the defendant will be prejudicedin his defence thereby, the Court may from time to time order theplaintiff to advance moneys to the guardian for the purpose of hisdefence and all moneys so advanced shall form costs of the plaintiffin the suit. The order shall direct that the guardian as and whenrequired by the Court shall file into Court the account of the moneysso received by him.”—

6. Receipt by next friend or guardian for the suit of propertyunder decree for minor. – (1) A next friend or guardian for thesuit shall not, without the leave of the Court, receive any moneyor other movable property on behalf of a minor either—

(a) by way of compromise before decree or order, or (b) under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not beenappointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared,is under any disability known to the Court to receive the money orother movable property, the Court shall, if it grants him leave toreceive the property, require such security and give such directionsas will, in its opinion, sufficiently protect the property from wasteand ensure its proper application:

28[Provided that the Court may, for reasons to be recorded,dispense with such security while granting leave to the next friendor guardian for the suit to receive money or other movable propertyunder a decree or order, where such next friend or guardian—

(a) is the manager of a Hindu undivided family and the decree ororder relates to the property or business of the family; or (b) is the parent of the minor.]

Provided that the Court may in its discretion dispense with thesecurity in cases where the next friend or guardian for the suit isa manager of a joint Hindu family or the Karnavan of a Tharwador the Ejaman of an Aliyasanthana family and the decree is passedin favour of such joint family or Tharwad or theAliyasanthanafamily as the case may be.

7. Agreement or compromise by next friend or guardianfor the suit.–(1) No next friend or guardian for the suit shall,without the leave of the Court, expressly recorded in theproceeding, enter into any agreement or compromise on behalf ofa minor with reference to the suit in which he acts as next friendor guardian.

(2) Where an application is made to the Court for leave to enterinto an agreement or compromise or for withdrawal of a suit inpursuance of a compromise or for taking any other similar actionon behalf of a minor or other person under disability, the affidavitin support of the application shall set out the manner in which theproposed compromise, agreement or other action is likely to effectthe interests of the minor or other person under the disability andthe reason why such compromise, agreement or other action isexpected to be for the benefit of the minor or other person underdisability, where in such a case the minor or the other personunder disability is represented by counsel or pleader, the saidcounsel or pleader shall also file into Court along with the A

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application a certificated to the effect that the agreement orcompromise or action proposed is in his opinion for the benefit ofthe minor or other person under disability. If the Court grantsleave under sub-rule (1) of this Rule, the decree or order of theCourt shall expressly recite the grant of the leave sought from theCourt in respect of the compromise, agreement or other action asaforesaid after consideration of the affidavit and the certificatementioned above and shall also set out either in the body of thedecree itself or in a schedule annexed thereto the terms of thecompromise or agreement or the particulars of other action.

(3) Any such agreement or compromise entered into without theleave of the court so recorded shall be voidable against all partiesother than the minor.

9. Removal of next friend.–(1) Where the interest of the nextfriend of a minor is adverse to that of the minor or where he is soconnected with a defendant whose interest is adverse to that ofthe minor as to make it unlikely that the minor’s interest will beproperly protected by him, or where he does not do his duty, orduring the pendency of the suit, ceases to reside within India, orfor any other sufficient cause, application may be made on behalfof the minor or by a defendant for his removal; and the Court, ifsatisfied of the sufficiency of the cause assigned, may order thenext friend to be removed accordingly, and make such other orderas to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declaredby an authority competent in this behalf, and an application ismade by a guardian so appointed or declared, who desires to behimself appointed in the place of the next friend, the Court shallremove the next friend unless it considers, for reasons to berecorded by it, that the guardian ought not to be appointed thenext friend of the minor, and shall thereupon appoint the applicantto be next friend in his place upon such terms as to the costsalready incurred in the suit as it thinks fit

12. Course to be followed by minor plaintiff or applicant onattaining majority.– (1) A minor plaintiff or a minor not a partyto a suit on whose behalf an application is pending shall, on attainingmajority, elect whether he will proceed with the suit or application.

(2) Where he elects to proceed with the suit or application, heshall apply for an order discharging the next friend and for leaveto proceed in his own name.

(3) The title of the suit or application shall in such case be correctedso as to read henceforth thus:—

“A,B., late a minor, by C.D., his next friend, but now having attainedmajority”.

(4) Where he elects to abandon the suit or application, he shall, ifa sole plaintiff or sole applicant, apply for an order to dismiss thesuit or application on repayment of the costs incurred by thedefendant or opposite party or which may have been paid by hisnext friend.

(5) Any application under this rule may be made ex parte; but noorder discharging a next friend and permitting a minor plaintiff toproceed in his own name shall be made without notice to the nextfriend.

13. Where minor co-plaintiff attaining majority desires torepudiate suit.–(1) Where a minor co-plaintiff on attainingmajority desires to repudiate the suit, he shall apply to have hisname struck out as co-plaintiff; and the Court, if it finds that he isnot a necessary party, shall dismiss him from the suit on suchterms as to costs or otherwise as it thinks fit.

(2) Notice of the application shall be served on the next friend, onany co-plaintiff and on the defendant.

(3) The costs of all parties of such application, and of all or anyproceedings theretofore had in the suit, shall be paid by suchpersons as the Court directs.

(4) Where the applicant is a necessary party to the Suit, the Courtmay direct him to be made a defendant.

14. Unreasonable or improper suit.–(1) A minor on attainingmajority may, if a sole plaintiff, apply that a suit instituted in hisname by his next friend be dismissed on the ground that it wasunreasonable or improper.

(2) Notice of the application shall be served on all the parties A

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concerned; and the Court, upon being satisfied of suchunreasonableness or impropriety, may grant the application andorder the next friend to pay the costs of all parties in respect ofthe application and of anything done in the suit, or make suchother order as it thinks fit.

14-A. When a minor defendant attains majority either he or theguardian appointed for him in the suit or the plaintiff may apply tothe Court to declare the said defendant a major and to dischargethe guardian and notice thereof shall be given to such among themas are not applicants. When the Court by order declares the saiddefendant as major it shall by the same order discharge theguardian and thereafter the suit shall be proceeded with againstthe said defendant as a major.

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A bare reading of Order XXXII, Rule 1 of the Code makes itamply clear that every suit by a minor shall be instituted in his name bya person who in such suit shall be called the “next friend” of the minor.DThe next friend need not necessarily be a duly appointed guardian asspecified under Sub-Section (b) of Section 4 of Hindu Guardianship Act.“Next friend” acts for the benefit of the “minor” or other person who isunable to look after his or her own interests or manage his or her ownlaw suit (person not sui juris) without being a regularly appointed guardianEas per Hindu Guardianship Act. He acts as an officer of the Court,especially appearing to look after the interests of a minor or a disabledperson whom he represents in a particular matter. The afore-saidprovision authorises filing of the suit on behalf of the minor by a nextfriend. If a suit by minor is instituted without the next friend, the plaintwould be taken off the file as per Rule 2 of Order XXXII of the Code.FOrder XXXII Rules 1 and 3 of the Code together make a distinctionbetween a next friend and a guardian ad litem; i.e., (a) where the suit isfiled on behalf of a minor and (b) where the suit is filed against a minor.In case, where the suit is filed on behalf of the minor, no permission orleave of the Court is necessary for the next friend to institute the suit,Gwhereas if the suit is filed against a minor, it is obligatory for the plaintiffto get the appropriate guardian ad litem appointed by the Court for suchminor. A “guardian ad litem” is a special guardian appointed by a courtin which a particular litigation is pending to represent a minor/infant, etc.in that particular litigation and the status of guardian ad litem exists inthat specific litigation in which appointment occurs. Various High Courts H

have also adopted this view. The Madras High Court in Kaliammal,minor by Guardian, Patta Goundan v. Ramaswamy Goundan, AIR1949 Mad. 859 observed that there is no need of sanction of the Courtfor a next friend to sue, if he is not incapacitated. This was also theview taken by the High Court of Allahabad in K. Kumar v. OnkarNath, AIR 1972 All. 81.

7. The Kerala High Court upheld the same in no uncertain termsin Gopalaswamy Gounder v. Ramaswamy Kounder, AIR 2006 Ker138. In that case, the High Court observed that any person who doesnot have any interest adverse to that of the minor can figure as his nextfriend. It held as follows:

“Law does not contemplate the appointment of a next friend for aminor who institutes a legal proceeding either as a Plaintiff or asa Petitioner. The object of a minor being represented through anext friend is only for the purpose of enabling the opposite partyto look upon the next friend for costs, if any, ordered against theminor…”

…. …. ….

Where the minor institutes a proceeding as a Plaintiff or applicantany person who does not have any interest adverse to that of theminor can figure as his next friend. The mere fact that the minor’smother Selvi was appointed as the guardian of the minor inexecution proceedings where the minor was impleaded as anadditional Respondent, will not disable Gopalaswamy Kounderfrom styling himself as the next friend of the minor for the purposeof filing the petitions under Order 21, Rule 90 Code of CivilProcedure There was absolutely no necessity for the next friendto seek his appointment as the next friend nor was the court belowjustified in dismissing the said application. Even in a case wherethe proceedings are instituted by the minor through his next friend,the real Plaintiff or applicant is the minor himself and not the nextfriend.”

8. Not only, is there no provision for appointment of next friend bythe Court, but the permission of the Court is also not necessary.

However, even in respect of minor defendants, various High Courtsare consistent in taking the view that the decree cannot be set aside A

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Aeven where certain formalities for the appointment of a guardian adlitem to represent the defendant have not been observed. The HighCourts have observed in the case of minor defendants, where thepermission of the Court concerned under Order XXXII Rule 3 of theCode is not taken, but the decree has been passed, in the absence ofprejudice to the minor defendant, such decree cannot be set aside. TheBmain test is that there has to be a prejudice to the minor defendant forsetting aside the decree. For reference, see the cases of Brij KishoreLal v. Satnarain Lal & Ors., AIR 1954 All. 599, Anandram & Anr.v. Madholal & Ors. AIR 1960 Raj. 189 Rangammal v. MinorAppasami & Ors. AIR 1973 Mad.12, Chater Bhuj Goel v.CGurpreet Singh AIR 1983 Punjab 406 & Shri Mohd. Yusuf andOrs. v. Shri Rafiquddin Siddiqui. ILR 1974 (1) Delhi 825.

In the matter on hand, the suit was filed on behalf of the minorand therefore the next friend was competent to represent the minor.Further, admittedly no prejudice was caused to plaintiff no. 2.

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9. “Guardian” as defined under the Hindu Guardianship Act is adifferent concept from the concept of “next friend” or the “Guardian adlitem”. Representation by “next friend” of minor plaintiff or by “guardianad litem” of minor defendant is purely temporary, that too for the purposesof that particular law suit.

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10. There is no hurdle for a natural guardian or duly constitutedguardian as defined under Hindu Guardianship Act to represent minorplaintiff or defendant in a law suit. But such guardian should not haveadverse interest against minor. If the natural guardian or the dulyconstituted guardian has adverse interest against the minor in the lawFsuit, then a next friend or guardian ad litem, as the case may be, wouldrepresent the minor in the civil litigation.

11. It is by now well settled and as per the provisions of OrderXXXII of Code that any person who is of sound mind, who has attainedmajority, who can represent and protect the interest of the minor, who isa resident of India and whose interest is not adverse to that of the minor,Gmay represent the minor as his next friend. Such person who isrepresenting the minor plaintiff as a next friend shall not be party to thesame suit as defendant. Rules 6 and 7 of Order XXXII of the Codespecifically provide that the next friend or guardian in the suit shall notwithout the leave of the Court receive any money or immovable property H

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and shall not without the leave of the Court enter into any agreement orcompromise. The rights and restrictions of the natural guardian providedunder the Hindu Guardianship Act do not conflict with the procedure forfiling a suit by a next friend on behalf of the minor. Not only is there noexpress prohibition, but a reading of Order XXXII of the Code would goto show that wherever the legislature thought it proper to restrict theright of the next friend, it has expressly provided for it in Rules 6 and 7 ofOrder XXXII of the Code. Rule 9 of Order XXXII – apart from otherfactors, clarifies that where a next friend is not a guardian appointed ordeclared by the authority competent in this behalf and an application ismade by the guardian so appointed or declared who desires to be himselfappointed in the place of the next friend, the Court shall remove the nextfriend unless it considers, for reasons to be recorded, that the guardianought not to be appointed as the next friend of the minor. Order XXXII,Rules 12, 13 and 14 of the Code empower the minor plaintiff to take adecision either to proceed with the suit or to abandon the suit, afterattaining majority. Thus, after attaining majority, if the plaintiff elects toproceed with the suit, he may do so by making an application, consequentupon which the next friend ceases to represent the minor plaintiff fromthe date of attaining majority by the minor. Order XXXII Rule 12 of theCode requires the minor plaintiff to have the option either to proceedwith the suit or to abandon the suit and does not at all provide that if nosuch election is made by the minor plaintiff on attaining majority, the suitis to be dismissed on that ground. In case, if the Court discovers duringthe pendency of the suit that the minor plaintiff has attained majority,such plaintiff needs to be called upon by the Court to elect whether heintends to proceed with the suit or not. In other words the minor whoattained majority during the pendency of the matter must be informed ofthe pendency of the suit and in the absence of such a notice the minorcannot be imputed with the knowledge of the pendency of the suit. So,before any adverse orders are to be made against the minor who hasattained majority, the Court has to give notice to such person. Of course,in the present matter, under the facts and circumstances, such occasiondid not arise, since plaintiff no. 2 on attaining majority has continued withthe suit, which means he has elected to proceed with the suit.

12. The principles arising out of the Guardians and Wards Act,1890 and the Hindu Guardianship Act may not be apposite to the nextfriend appointed under Order XXXII of the Code. The appointment of a AB

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Aguardian ad litem to represent the defendant or a next friend to representthe plaintiff in a suit is limited only for the suit and after the discharge ofthat guardian ad litem/next friend, the right/ duty of guardian as definedunder sub-section (b) of Section 4 of the Hindu Guardianship Act (if hehas no adverse interest) automatically continues as guardian. In otherwords, a next friend representing the minor in the suit under Order XXXII,BRule 1 of the Code, will not take away the right of the duly appointedguardian under the Hindu Guardianship Act as long as such guardiandoes not have an adverse interest or such duly appointed guardian is notremoved as per that Act.

13. In the case on hand, respondent No.2/defendant 1, thoughCwas the father of the plaintiff no.2 could not have represented plaintiffno.2 in the present suit as his guardian, because his interest was adverseto that of plaintiff no.2. A number of allegations are made against thevendor of the property i.e. against the natural guardian by plaintiff no.2in the suit while questioning the validity of the sale deed. The action ofDrespondent no.2 herein (defendant no.1) in selling the property withoutany valid reason and family necessity is the subject matter in the suit.On the other hand, plaintiff no.1 (elder brother of plaintiff no.2) who didnot have any adverse interest to that of plaintiff no.2, has properlyrepresented plaintiff no.2 as his next friend. The plaintiff no.2 has notmade a single allegation against the plaintiff no.1/his next friend, after heEattained majority.

14. The minor-plaintiff no.2 had attained majority within one yearfrom the date of filing of the suit. The suit, as afore-mentioned, was filedon 21.04.1985 when the plaintiff No.2 was 17 years of age. Thus plaintiffno.2 attained the age of majority on or about 20.04.1986. Evidence ofFPW1 (the first witness of the plaintiffs) was recorded on 15.10.1992,which means, much prior to the recording of evidence of any of thewitnesses, plaintiff no.2 had attained majority and he had by then electedto continue with the suit. It is also relevant to note that plaintiff no.2 ispursuing the matter from the date of attaining majority till this date on hisGown. Therefore, it was not open for the High Court to non-suit the plaintiffno.2 for the afore-mentioned reasons.

15. Though records are not produced before us to show that plaintiffno.2 had filed a formal application for discharging the next friend afterhe attained majority, the fact remains that he has continued with theHproceedings on his own, from the trial Court to this Court. The same clearly shows his intention of continuing with the litigation. He has notabandoned his claim but has elected to continue with civil action.

16. To sum up, instituting a suit on behalf of minor by a next friendor to represent a minor defendant in the suit by a guardian ad litem is atime-tested procedure which is in place to protect the interests of theminor in civil litigation. The only practical difference between a “nextfriend” and a “guardian ad litem” is that the next friend is a person whorepresents a minor who commences a lawsuit; guardian ad litem is aperson appointed by the Court to represent a minor who has been adefendant in the suit. Before a minor commences suit, a consciousdecision is made concerning the deserving adult (next friend) throughwhom the suit will be instituted. The guardian ad litem is appointed byCourt and whereas the next friend is not. The next friend and the guardianad litem possess similar powers and responsibilities. Both are subject tocontrol by the Court and may be removed by the Court if the best interestof the minor so requires.

17. In view of the above discussion, we are of the opinion that theimpugned order relying upon the provisions of Hindu Guardianship Actto non-suit the plaintiff no.2 is not justified. Having regard to the totalityof the facts and circumstances of the case, it would be just and proper ifthe matter is remitted to the High Court for a fresh decision on merits inaccordance with law. Accordingly, this appeal is allowed to the aforesaidextent, the judgment of the High Court is set aside and the matter isremitted to the High Court for a fresh decision on merits, in accordancewith law. Needless to mention, that we have not expressed any opinionon the merits of the case. There shall be no order as to costs.

Kalpana K. Tripathy Appeal allowed.

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