Code of Civil Procedure, 1908:
Or. XXXII, rr.1,3,6,7,9,12,13 and 14 – Suit by plaintiff No.1 on his as well as on behalf of his minor brother (Plaintiff No.2) – Against their father (defendant No.1) – Seeking declaration that they were entitled to 2/3rd share in the property and sale deed executed by their father (defendant No.1) in favour of defendant No.2 was not binding on their 2/3rd share – Trial court dismissed the suit on merit – First appellate court decreed the suit – High court, in second appeal, dismissed the suit on the ground that plaintiff No.1 could not act as the guardian of plaintiff No.2 during the life-time of their father i.e. defendant No.1 (the natural guardian of plaintiff No.2) without permission of the court – On appeal, held: Plaintiff No.1 does not come within meaning of ‘guardian’ as specified in sub-section (b) of s.4 of Hindu Guardianship Act – Present case is governed by Or. XXXII of CPC – A suit by a minor can be filed by the ‘next friend’ of the minor and no permission is necessary for the ‘next friend’ to institute the suit – But if suit is filed against the minor, it is obligatory for the plaintiff to get the appropriate ‘guardian ad litem’ appointed by the Court – A decree cannot be set aise even where formalities for appointment of a guardian ad litem have not been observed, if no prejudice is caused to the minor defendant – In the present case ‘next friend’ was competent to represent the minor – Further no prejudice was caused to the minor plaintiff – If the natural guardian has adverse interest against minor, he cannot represent the minor in a law suit – The interest of natural guardian, in the present case was adverse to the minor plaintiff – Rules 12, 13 and 14 also empowers the minor on attaining majority, either to proceed with or to abandon the suit – The minor plaintiff in present suit continued the suit after attaining majority – Principles arising out of Guardian and Wards Act, 1890 and Hindu Guardianship Act, may not be apposite to the ‘next friend’ appointed u/Or. XXXII CPC – Therefore, impugned order relying upon provisions of Hindu Guardianship Act to non-suit plaintiff No.2 is not justified – Matter remitted to High Court for fresh decision 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 within the meaning of a “Guardian” as specified in sub-section (b) of Section 4 of the Hindu Guardianship Act. But the present facts are not governed by the provisions of Hindu Guardianship Act; rather they are governed by Order XXXII CPC. [Para 6][183-DE]
2. A bare reading of Order XXXII, Rule 1 of CPC makes it amply clear that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the “next friend” of the minor. The next friend need not necessarily be a duly appointed guardian as specified under Sub-Section (b) of Section
4 of Hindu Guardianship Act. “Next friend” acts for the benefit of the “minor” or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The afore-said provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order XXXII of CPC. Order XXXII Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad 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 suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the plaintiff to get the appropriate guardian ad litem appointed by the Court for such minor. A “guardian ad litem” is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs. [Para 6][140-C-G]
Kaliammal, minor by Guardian, Patta Goundan v.
Ramaswamy Goundan AIR 1949 Mad. 859; K. Kumar
v. Onkar Nath AIR 1972 All 81; Gopalaswamy Gounder v. Ramaswamy Kounder AIR 2006 Ker 138 – referred to.
3. The decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. In the case of minor defendants, where the permission of the Court concerned under Order XXXII Rule 3 of the CPC is not taken, but the decree has been passed, in the absence of prejudice to the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the minor defendant for setting aside the decree. In the present case, the suit was filed on behalf of the minor and therefore the next friend was competent to represent the minor. Further, admittedly no prejudice was caused to plaintiff no. 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 1960 Raj. 189; Rangammal v. Minor Appasami & Ors. AIR 1973 Mad. 12; Chater Bhuj Goel v. Gurpreet Singh AIR 1983 Punjab 406; Shri Mohd. Yusuf and Ors. v. Shri Rafiquddin Siddiqui ILR 1974 (1) Delhi 825 – referred to.
4. “Guardian” as defined under the Hindu Guardianship Act is a different concept from the concept of “next friend” or the “Guardian ad litem”. Representation by “next friend” of minor plaintiff or by “guardian ad litem” of minor defendant is purely temporary, that too for the purposes of that particular law suit. [Para 9][142-D]
5. Instituting a suit on behalf of minor by a next friend or to represent a minor defendant in the suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a “next friend” and a “guardian ad litem” is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires. [Para 16][145-A-C]
6. There is no hurdle for a natural guardian or duly constituted guardian as defined under Hindu Guardianship Act to represent minor plaintiff or defendant in a law suit. But such guardian should not have adverse interest against minor. If the natural guardian or the duly constituted guardian has adverse interest against the minor in the law suit, then a next friend or guardian ad litem, as the case may be, would represent the minor in the civil litigation. [Para 10][142-E]
7. The rights and restrictions of the natural guardian provided under the Hindu Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading of Order XXXII of the CPC would go to show that wherever the legislature 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 Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order XXXII of the CPC. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited only for the suit and after the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under sub-section
(b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order XXXII, Rule 1 of the CPC, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act. [Para 12][143G-H; 144-A-B]
9. Order XXXII, Rules 12, 13 and 14 of the CPC empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Plaintiff No. 2 on attaining majority has continued with the suit, which means he has elected to 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 represented plaintiff No.2 in the present suit as his guardian, because his interest was adverse to that of plaintiff No.2. A number of allegations are made against the natural guardian by plaintiff no.2 in the suit while questioning the validity of the sale deed. On the other hand, plaintiff no.1 (elder brother of plaintiff No.2) who did not have any adverse interest to that of plaintiff no.2, has properly represented plaintiff No.2 as his next friend. The plaintiff No.2 has not made a single allegation against the plaintiff No.1/his next friend, after he attained majority. The minor-plaintiff No.2 had attained majority within one year from the date of filing of the suit. Evidence of PW1 was recorded much prior to the recording of evidence of any of the witnesses, plaintiff No.2 had attained majority and he had by then elected to continue with the suit. It is also relevant to note that plaintiff No.2 is pursuing the matter from 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 the provisions of Hindu Guardianship Act to non-suit plaintiff No.2 is not justified. Having regard to the totality of the facts and circumstances of the case, it would be just and proper if the matter is remitted to the High Court for a fresh decision on merits in accordance with law. [Para 17][145-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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