Sasi
K.G.
01. INTRODUCTION
As a general rule only major persons can institute suits
in a civil suit. However Order XXXII provides for the institution of suits by
or against minors. This is an exception, mainly introduced for the protection
of the best interests of the minors.
02. SUITS UNDER CIVIL PROCEDURE CODE
Civil
Procedure Code is the procedural law dealing with the institution of civil
suits.
01. Civil Procedure Code
01. Historical Background
Till 1859, in India, there was no uniform codified law for the procedures
to be followed in Civil Courts. During the British rule, there were Crown
Courts in Presidency towns and Provincial Courts in Mofussils.
These Courts in Mofussil areas and Presidency towns were governed by different
systems of Civil procedure. In 1859, Civil Procedure Code (Act VII of 1859) was
passed as a uniform civil procedure Code. But this code was not made
applicable to the Supreme Courts (Crown Courts under the Royal Charter) and the
Sadar Diwani Adalats (Principal Courts under the Judicial Plan by the Governor
General).
In 1861, the Indian High Courts Act was passed and the Supreme Courts and
Sadar Diwani Adalats were abolished. Then the High Courts were established by
replacing the Supreme Courts at Madras, Bombay and Calcutta. Then the Civil
Procedure Code 1859 made applicable to these newly established High Courts.
The Code of 1859 was amended regularly from time to time and was
replaced by passing the Civil Procedure Code, 1877. The code of 1877 was
amended in 1878 and 1879 and the third civil procedure Code was enacted in
1882, which replaced the previous code. The Code of Civil Procedure 1882 was
also amended several times and ultimately the present code of Civil Procedure,
1908 was passed.
02. Objects of Civil Procedure Code
The Code of Civil Procedure, 1908 is a systematic collection of statutes,
body of laws so arranged as to avoid inconsistency and overlapping. The main
object of this civil procedure code is to consolidate and amend the laws
relating to the procedure and practices followed in the Civil Courts in India.
As such, it was enshrined in the preamble of the code that it was enacted to
consolidate and amend the laws relating to the procedure to be followed in the
civil courts having civil jurisdiction in India. The Civil Procedure Code
regulates every action in civil courts and the parties before it till the
execution of the degree and order. The Aim of the Procedural law is to
implement the principles of Substantive law. Code of Civil Procedure, 1908 ensures
fair justice by enforcing the rights and liabilities.
03. Extent and Application
The Civil Procedure Code was passed in 1908 and came into force from 1st
January 1909. The Code is applicable to the whole country except –
1.
The State of Jammu and Kashmir
2.
The state of Nagaland and the tribal areas[6]
There is also a provision that the concerned state governments may make the
provisions of this code applicable to the whole or part of the State of
Nagaland or such tribal areas by notification in the official gazette. This
code is applicable in the scheduled areas of the erstwhile State of Madras
(Lakshadweep), the East Godavari, West Godavari and Visakhapatnam agencies (Now
in Andhra Pradesh State).
04. Scope of Code of Civil Procedure, 1908
The Code is exhaustive on the matters directly dealt by it but it is
comprehensive in other issues. The framers of the code have provided inherent
powers to the court to meet such circumstances (where the code could not provide
a procedure) according to the principles of natural justice, equity and good
conscience. As this Code is a general procedural law, it does not contradict
with the local or special law in force. In the event of any conflict between
the civil procedure code and the special law, the special law will prevail over
the civil procedure code. In case the local or general law is silent on any
matter, then the provisions of the civil procedure code will prevail.
The Code of Civil Procedure, 1908 has two parts and they are –
1.
The Body of the Code
2.
The Schedule
The Body of the Code has 12 parts containing 158 sections. The Schedule is
the second part containing orders and rules. The Body of the Code lays down
general principles relating to Power of the court, and in the case of the
second part, that is, the Schedule provides for the procedures, methods and
manners in which the jurisdiction of the court may be exercised. Originally
there were five schedules when this code was enacted. Later the Schedules II,
III, IV and V were repealed by the subsequent amendments of the code.
The first schedule which is the only schedule to the code now has 51
orders. Each order contains rules that vary in numbers from order to order.
There are eight appendices giving model formats (Forms), such as –
Pleadings (Plaint and Written Statement formats), Process formats, Discovery,
Inspection and Admission, Decrees, Execution, Supplemental Proceedings, Appeal,
Reference and Reviews, Miscellaneous etc.
The various High Courts are empowered to alter or add any rules in the
schedules under Section 122 to 127, 129, 130 and 131 and such new rules should
not be inconsistent with the provisions of the body of the code.
The Provisions of the Body of the code can be amended only by the
legislature and the Courts cannot alter or amend the body of the code.
The Civil Procedure Code made the procedure to be followed in the Civil
Courts very simple and effective. Enforcement of rights, liabilities and
obligations of the citizens are dealt by this code. To say, in other words, the
Civil Procedure Code provides the mechanism for enforcement of rights and
liabilities.
The Civil Procedure Code is a general law and will not affect local or
special laws which are already in force. In case of any conflict with local or
special laws, the local or special law will prevail over the Civil Procedure
Code. In case, if the local or special law is silent about any particular
issue, then the Civil Procedure Code will apply.
The Civil Procedure Code has been amended several times to meet the needs
and requirements which are dynamic and changing from time to time. Between 1909
and 1976, the Code has been amended for more than 30 times. The Amendments of
1999 and 2002 are recent changes to the Code.
02. Suits
Suits mean litigations or
proceedings of a civil nature. The term suit is not defined in Civil Procedure
Code.
According to section 9 of the Code, the Courts shall have
jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred. A suit in which the right
to property or to an office is contested is a suit of a civil nature, notwithstanding
that such right may depend entirely on the decision of questions as to
religious rites or ceremonies. For the purposes of this section, it is
immaterial whether or not any fees are attached to the office referred to above
or whether or not such office is attached to a particular place.
According to section 10, no Court shall proceed with the
trial of any suit in which the matter in issue is also directly and substantially
in issue in a previously instituted suit between the same parties, or between
parties under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in India having
jurisdiction to grant the relief claimed, or in any Court beyond the limits of
India established or continued by the Central Government and having like
jurisdiction, or before the Supreme Court. The pendency of a suit in a foreign
Court does not preclude the Courts in India from trying a suit founded on the
same cause of action.
According to section 11, no Court shall try any suit or
issue in which the matter directly and substantially in issue has been directly
and substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same
title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided
by such Court.
According to section 15, every
suit shall be instituted in the Court of the lowest grade competent to try
it. According to section 16, Suits to be instituted where
subject-matter situate.
According to section 22, suit may be transferred to
another Court. According to section 26, every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed.
When a suit is filed before a competent civil court, the party has to pay
the prescribed court fee. If the suit is filed without the prescribed court
fee, the suit is liable to be rejected.
An indigent person, however may file a suit along with an application
stating that the plaintiff may not be able to pay the prescribed court fee due
to poverty, etc. In such circumstances, to help such persons to protect their
rights, the Civil Procedure Code, 1908 has provisions under Order XXXIII to
provide an exemption from the court fee. An Indigent person is the
one who is poor and cannot afford to pay the court fee. This kind of suits are
also called as “Pauper Suits”.
03. STATUS OF MINOR UNDER INDIAN LAWS
Indian laws provide special protective treatment to
minors.
01. Minor under Indian Contract Act
According
to section 11 of the Indian Contract Act, a minor or a person who is not of sound
mind cannot enter into a contract. According to section 183, a minor cannot
employ an agent and Section 184 forbids a minor to be an agent. According to
section 26, every agreement in restraint of the marriage of any person, other
than a minor, is void. Section 68 stipulates that if a person, incapable of
entering into a contract, or anyone whom he is legally bound to support, is
supplied by another person with necessaries suited to his condition in life,
the person who has furnished such supplies is entitled to be reimbursed from
the property of such incapable person.
02. Minor under Indian Penal Code
The concept of
child in Indian Penal Code, 1860 is not strictly in tune with minority but
varies largely and is classified into groups such as unborn child as in Section
316 Causing death of quick unborn child by act amounting
to culpable homicide, child under seven years as in Section 82 Act of a child under seven years of age, child between
seven to twelve as in Section 83 Act of a child
above seven and under twelve of immature understanding, child below
thirteen and fourteen as under Manipur State Amendment Act 30 of 1950 of
Section 375 Rape of Indian Penal Code, child below fifteen as per Section 375
Rape of Indian Penal Code, , child below sixteen as per Sections 375 Rape, 361 Kidnapping from lawful guardianship, 363A Kidnapping
or maiming a minor for purposes of begging, and 375 Rape, child under eighteen years as
in Sections 305 Abetment of suicide of child or insane
person, 361 Kidnapping from lawful guardianship, 363A Kidnapping or maiming a
minor for purposes of begging, 366A Procuration of minor girl, 372 Selling
minor for purposes of prostitution, etc, 373 Buying minor for purposes of
prostitution, etc. In Constitution of India the
provisions in regard to children are largely for those who are under fourteen
years as in Articles 21A, 24, 45, and 51A(k).
According to section 82 of IPC, nothing is an
offence which is done by a child under seven years of age. Section 83 mandates
that nothing is an offence which is done by a child above seven years of age
and under twelve, who has not attained sufficient maturity of understanding to
judge of the nature and consequences of his conduct on that occasion.
According to section 89, nothing which is done in
good faith for the benefit of a person under twelve years of age, or of unsound
mind, by or by consent, either express or implied, of the guardian or other
person having lawful charge of that person, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause or be known by the doer
to be likely to cause to that person:
According to section 90, a consent of a child below
12 years is not a consent as it is intended by any section of IPC, unless the
contrary appears from the context. According to
section 317 of IPC, whoever being the father or mother of a child under
the age of twelve years, or having care of such child, shall be punished with
imprisonment of either description for a term which may extend to seven years
,or with fine, or with both. This section is not intended to prevent the trial
of the offender for murder of culpable homicide, as the case may be, if the
child die in consequence of the exposure.
03. Minor under Indian Majority Act
Indian majority Act (Act No. 9 OF 1875)
which came into effect on 2nd March 1875 through a substitution by Act
33 of 1999, (w. e. f. 16. 12. 1999) has provided that the age of majority of
persons domiciled in India shall attain the age of majority on his completing
the age of eighteen years and not before.Clauses (a) and (b) of Section 2 of
the Indian Majority Act, 1875, lay down that nothing contained shall affect—(a)
the capacity of any person to act in the following matters, (namely),—marriage,
dower, divorce and adoption; and (b) the religion or religious rites and usages
of any class of citizens of India.
04. Guardians and Wards Act, 1890
Under
section 4 (2) of the Guardians and wards Act, 1890, "Guardian" means minor
for whose person or property or both there is a guardian. As per Section 4(3) a
"Ward" means a minor for whose person or property or both there is a
guardian.
05. Minor under Civil Procedure Code
The Civil Procedure Code, 1908 contains many provisions
concerning minors. Some of them are given below.
Order VII Plaint Rule 1 (d) provides that a plaint shall also
contain the particulars where the plaintiff or the defendant is a minor or a
person of unsound mind, a statement to that effect.
Order XI
Discovery and Inspection Rule 23 provides that that Order shall apply to minor plaintiffs and defendants,
and to the next friends and guardians for the suit of the persons under
disability.
Order XXIII Withdrawal and Adjustment of Suits Rule 1 runs as follows.
[[i]1 . Withdrawal of suit or
abandonment of part of claim— (1) At any time after the institution of a
suit, the plaintiff may as against all or any of the defendants abandon his
suit or abandon a part of his claim:
Provided that where
the plaintiff is a minor or other person to whom the provisions contained in
rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim
shall be abandoned without the leave of the Court.
(2) An application
for leave under the proviso to sub-rule (1) shall be accompanied by an
affidavit of the next friend and also, if the minor or such other person is
represented by a pleader, by a certificate of the pleader to the effect that
the abandonment proposed is, in his opinion, for the benefit of the minor or
such other persons.]
In Order XXXXIIA –
Suits relating to Matters Concerning the Family, Rule 1(2)(c) provides that
Order XXXIIA shall apply to a suit or proceeding in relation to the
guardianship of the person or the custody of any minor or other member of the
family, under a disability.
04. SUITS BY OR AGAINST MINORS UNDER CPC
01. Suits by Minors or Suits against Minors
Every
suit by or against a minor shall be filed as provided in Order XXXII of Civil
Procedure Code, 1908.
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. [O. 32, R. 1]. The next friend
should be a person who is of sound mind, who has attained majority, who is not
a defendant and whose interest is not adverse to that of the minor.
Where the
suit is instituted without a next friend the defendant may apply to have the
plaint taken off the file, with costs to be paid by the pleader off other
person by whom it was presented. [O. 32, R. 2].
Where a
suit has been instituted on behalf of the minor by his next friend, the court
may, at any stage of the suit either of its own motion or on the application of
any defendant and for reasons to be recorded, order the next friend to give
security for the payment of all costs incurred or likely to be incurred by the
defendant. Where such a suit is instituted by an indigent person, the security
shall include the court-fees payable to the Government. (O. 32, R. 2-A).
Where the
defendant is a minor, the court, on being satisfied of the fact of his
minority, should appoint a proper person to be guardian for the suit for such
minor, called the guardian ad litem.
An order
for the appointment of a guardian for the suit may be obtained upon application
in the name and on behalf of the minor or by the plaintiff.
A person
appointed as guardian for the suit for a minor shall, unless his appointment is
terminated by retirement, removal or death, continue as such throughout all
proceedings arising out of the suit including in any appellate or revisional
court and any proceedings in any execution of a decree. (O. 32, R. 3).
Where the
interest of the next friend is adverse to that of the minor or where he is
connected with a defendant whose interest is adverse to that of the minor, or
where he does not do his duty or, during the pendency of the suit, ceases to
reside within India, or on any other sufficient cause, the court may, on an
application made on behalf of the minor, order the next friend to be removed.
On the
retirement, removal or death of the next friend of a minor, further proceedings
are stayed until the appointment of a next friend in his place. Similarly, a
guardian may also be removed if he does not do his duty or is allowed to retire
by the court, and the court may appoint a new guardian in his place. (O. 32, R.
9).
Where the
minor plaintiff attains majority, he may elect to proceed with the suit or
elect to abandon it. If he elects the former course, he shall apply for an
order discharging the next friend and for leave to proceed in his own name. The
title of the suit will be corrected so as to read henceforth thus—
“A. B.,
late a minor by C.D., his next friend but now having attained majority.”
Where he
elects to abandon the suit, he shall, if sole plaintiffs apply for an order to
dismiss the suit in repayment of the costs incurred by the defendant or which
may have been paid by his next friend. (O. 32, R. 12).
Where the
minor applies to the court that the suit instituted in his name by his next
friend be dismissed on the ground that it was unreasonable or improper and the
court is satisfied of such unreasonableness or impropriety, it may grant the
application and order the next friend to pay the costs of all parties in
respect of the application and the suit, or make such other order as it thinks
fit. (O. 32, R. 14).
All the
above rules equally apply to persons adjudged to be of unsound mind.
Order
XXXII is reproduced below
ORDER XXXII
SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
1. Minor to sue by
next friend— Every suit by a
minor shall be instituted in his name by a person who in such shall be called
the next friend of the minor.
[[ii]Explanation—In this Order,
"minor" means a person who has not attained his majority within the meaning
of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit
relates to any of the matters mentioned in clauses (a) and (b) of section 2 of
that Act or to any other matter.]
2. Where suit is
instituted without next friend, plaint to be taken off the file— (1) Where a suit is instituted by or on behalf of a
minor without a next friend, the defendant may apply to have the plaint taken
off the file, with costs to be paid by the pleader or other person by whom it
was presented.
(2) Notice of such
application shall be given to such person, and the Court, after hearing his
objections (if any) may make such order in the matter as it thinks fit.
[[iii]2A . Security to be
furnished by next friend when so ordered— (1) Where a suit has been
instituted on behalf of the minor by his next friend, the Court may, at any
stage of the suit, either of its own motion or on the application of any
defendant, and for the reasons to be recorded, order the next friend to give
security for the payment of all costs incurred or likely to be incurred by the
defendant.
(2) Where such a
suit is instituted by an indigent person, the security shall include the
court-fees payable to the Government.
(3) The provisions
of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court
makes an order under this rule directing security to be furnished.]
3. Guardian for the
suit to be appointed by Court for minor defendant— (1) Where the defendant is a minor the Court, on being
satisfied of the fact of his minority, shall appoint a proper person to be
guardian for the suit for such minor.
(2) An order for
the appointment of a guardian for the suit may be obtained upon application in
the name and on behalf of the minor or by the plaintiff.
(3) Such
application shall be supported by an affidavit verifying the fact that the
proposed guardian has no interest in the matters in controversy in the suit
adverse to that of the minor and that he is a fit person to be so appointed.
(4) Order shall be
made on any application under this rule except upon notice to any [iv]*** to any guardian of the
minor appointed or declared by an authority competent in that behalf, or, where
there is no such guardian, [[v]upon notice to the father or
where there is no father, to the mother, or where there is no father or mother,
to other natural guardian] of the minor, or, where there is [[vi]no father, mother or other natural
guardian], to the person in whose care the minor is, and after hearing any
objection which may be urged on behalf of any person served with notice under
this sub-rule.
[[vii](4A) The Court may, in any
case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]
(5) A person
appointed under sub-rule (1) to be guardian for the suit for a minor shall,
unless his appointment is terminated by retirement, removal or death, continue
as such throughout all proceedings arising out of the suit including
proceedings in any Appellate or Revisional Court and any proceedings in the
execution of a decree.
[[viii]3A. Decree against minor
to be set aside unless prejudice has been caused to his interests— (1) No decree
passed against a minor shall be set aside merely on the ground that the next
friend or guardian for the suit of the minor had an interest in the
subject-matter of the suit adverse to that of the minor, but the fact that by
reasons of such adverse interest of the next friend of guardian for the suit,
prejudice has been caused to the interests of the minor, shall be a ground for
setting aside the decree.
(2) Nothing in this
rule shall preclude the minor from obtaining any relief available under any law
by reason of the misconduct or gross negligence on the part of the next friend
or guardian for the suit resulting in prejudice to the interests of the minor.]
4. Who may act as
next friend or be appointed guardian for the suit— (1) Any person who is of sound mind and has attained
majority may act as next friend of a minor or as his guardian for the suit:
Provided that the
interest of such person is not adverse to that of the minor and that he is not,
in the case of a next friend, a defendant, or, in the case of a guardian for
the suit, a plaintiff.
(2) Where a minor
has a guardian appointed or declared by competent authority, no person other
than such guardian shall act as the next friend of the minor or be appointed
his guardian for the suit unless the Court considers, for reasons to be
recorded, that it is for the minor's welfare that another person be permitted
to act or be appointed, as the case may be.
(3) No person shall
without his consent [[ix]in writing] be appointed
guardian for the suit.
(4) Where there is
no other person fit and willing to act as guardian for the suit, for Court may
appoint any of its officers to be such guardian, and may direct that the costs
to be incurred by such officer in the performance of his duties as such
guardian shall be borne either by the parties or by any one or more of the parties
to the suit, or out of any fund in Court in which the minor is interested [[x]or out of the property of the
minor], and may give directions for the repayment or allowance of such costs as
justice and the circumstances of the case may require.
5. Representation
of minor by next friend or guardian for the suit— (1) Every application to the Court on behalf of a minor,
other than an application under rule 10, sub-rule (2), shall be made by his
next friend or by his guardian for the suit.
(2) Every order
made in a suit or on any application, before the Court in or by which a minor
is in any way concerned or affected, without such minor being represented by a
next friend or guardian for the suit, as the case may be, may be discharged,
and, where the pleader of the party at whose instance such order was obtained
knew, or might reasonably have known, the fact of such minority, with costs to
be paid by such pleader.
6. Receipt by next
friend or guardian for the suit of property under decree for minor— (1) A next friend or guardian for the suit shall not,
without the leave of the Court, receive any money or 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 been appointed 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 or other movable property, the Court shall, if it grants him leave to
receive the property, require such security and give such directions as will,
in its opinion, sufficiently protect the property from waste and ensure its
proper application:
[[xi]Provided that the Court may,
for reasons to be recorded, dispense with such security while granting leave to
the next friend or guardian for the suit to receive money or other movable
property under a decree or order, where such next friend or guardian—
(a) is the manager
of a Hindu undivided family and the decree or order relates to the property or
business of the family; or
(b) is the parent
of the minor.]
7. Agreement or
compromise by next friend or guardian for the suit— (1) No next friend or guardian for the suit shall,
without the leave of the Court, expressly recorded in the proceedings, enter
into any agreement or compromise on behalf of a minor with reference to the
suit in which he acts as next friend or guardian.
[[xii](1A) An application for
leave under sub-rule (1) shall be accompanied by an affidavit of the next
friend of the guardian for the suit, as the case may be, and also, if the minor
is represented by a pleader, by the certificate of the pleader, to the effect
that the agreement or compromise proposed is, in his opinion, for the benefit
of the minor:
Provided that the
opinion so expressed, whether in the affidavit or in the certificate shall not
preclude the Court from examining whether the agreement or compromise proposed
is for the benefit of the minor.]
(2) Any such
agreement or compromise entered into without the leave of the Court so recorded
shall be voidable against all parties other than the minor.
8. Retirement of
next friend— (1) Unless
otherwise ordered by the Court, a next friend shall not retire without first
procuring a fit person to be put in his place and giving security for the costs
already incurred.
(2) The application
for the appointment of a new next friend shall be supported by an affidavit
showing the fitness of the person proposed and also that he has no interest
adverse to that of the minor.
9. Removal of next
friend— (1)Where the interest of the
next friend of a minor is adverse to that of the minor or where he is so
connected with a defendant whose interest is adverse to that of the minor as to
make it unlikely that the minor's interest will be properly protected by him,
or where he does not do his duty, or during the pendency of the suit, ceases to
reside within India or for any other sufficient cause, application may be made
on behalf of the minor or by a defendant for his removal; and the Court, if
satisfied of the sufficiency of the cause assigned, may order the next friend
to be removed accordingly, and make such other order as to costs as it thinks
fit.
(2) Where the next
friend is not a guardian appointed or declared by an authority competent in
this behalf, and an application is made by a guardian so appointed or declared,
who desires to be himself appointed in the place of the next friend, the Court
shall remove that next friend unless it considers, for reasons to be recorded
by it, that the guardian ought not to be appointed the next friend of the minor
and shall thereupon appoint the applicant to be next friend in his place upon
such terms as to the costs already incurred in the suit as it thinks fit.
10. Stay of
proceedings on removal, etc., of next friend— (1) On the retirement, removal or death of the next friend of a minor,
further proceedings shall be stayed until the appointment of a next friend in
his place.
(2) Where the
pleader of such minor omits, within a reasonable time, to take steps to get a
new friend appointed, any person interested in the minor or in the matter in
issue may apply to the Court for the appointment of one, and the Court may
appoint such person as it thinks fit.
11. Retirement,
removal or death of guardian for the suit— (1) Where the guardian for the suit desire to retire or does not do his
duty, or where there sufficient ground is made to appear, the Court may permit
such guardian to retire or may remove him, and may make such order as to costs
as it thinks fit.
(2) Where the
guardian for the suit retires, dies or is removed by the Court during the
pendency of the suit, the Court shall appoint a new guardian in his place.
12. Course to be
followed by minor plaintiff or applicant on attaining majority— (1) A minor plaintiff or a minor not a party to a suit on
whose behalf an application is pending shall, on attaining majority, elect whether
he will proceed with the suit or application.
(2) Where he elects
to proceed with the suit or application, he shall apply for an order
discharging the next friend and for leave to proceed in his own name.
(3) The title of
the suit or application shall in such case be corrected so as to read
henceforth thus:
"A.B., late a
minor, by C.D., his next friend, but now having attained majority."
(4) Where he elects
to abandon the suit or application, he shall, if a sole plaintiff or sole
applicant, apply for an order to dismiss the suit or application on repayment
of the costs incurred by the defendant or opposite party or which may have been
paid by his next friend.
(5) Any application
under this rule may be made ex parte but no order discharging a next friend and
permitting a minor plaintiff to proceed in his own name shall be made without
notice to the next friend.
13. Where minor
co-plaintiff attaining, majority desires to repudiate suit— (1) Where a minor co-plaintiff on attaining majority
desires to repudiate the suit, he shall apply to have his name struck out as
co-plaintiff; and the Court, if it finds that he is not a necessary party shall
dismiss him from the suit on such terms as to costs or otherwise as it thinks
fit.
(2) Notice of the
application shall be served on the next friend, on any co-plaintiff and on the
defendant.
(3) The costs of
all parties of such application, and of all or any proceedings therefore had in
the suit, shall be paid by such persons as the Court directs.
(4) Where the
applicant is a necessary party to the suit, the Court may direct him to be made
a defendant.
14. Unreasonable or
improper suit— (1) A minor on
attaining majority may, if a sole plaintiff, apply that a suit instituted in
his name by his next friend be dismissed on the ground that it was unreasonable
or improper.
(2) Notice of the
application shall be served on all the parties concerned; and the Court, upon
being satisfied of such unreasonableness or impropriety, grant the application
and order the next friend to pay the costs of all parties in respect of the
application and of anything done in the suit, or make such other order as it
thinks fit.
[[xiii]15. Rules 1 to 14
(except rule 2A) to apply to persons of unsound mind— Rules 1 to 14 (except
rule 2A) shall, so far as may be, apply to persons adjudged, before or during
the pendency of the suit, to be of unsound mind and shall also apply to persons
who, though not so adjudged, are found by the Court on enquiry to be incapable,
by reason of any mental infirmity, or protecting their interest when suing or
being sued.]
[[xiv]16. Savings— (1)
Nothing contained in this Order shall apply to the Ruler of a foreign State
suing or being sued in the name of his State, or being sued by the direction of
the Central Government in the name of an agent or in any other name.
(2) Nothing
contained in this Order shall construed as affecting or in any way derogating
from the provisions of any local law for the time being in force relating to
suits by or against minors or by against lunatics or other persons of unsound
mind.]
Appendix H gives some forms in respect to minors. They are reproduced
below.
[[xv]No.
11
Notice to Certificated, Natural, or, De facto Guardian
(Order XXXII, Rule 3)
(Title)
To
(Certificated/Natural/de
facto Guardian)
Whereas an
application has been presented on the part of the plaintiff*/on behalf of the
minor defendant* in the above suit for the appointment of a guardian for the
suit for the minor defendant . . . . . . . . . . . . . . , you (insert the name
of the guardian appointed or declared by Court, or natural guardian, or the
person in whose care the minor is) are hereby required to take notice that
unless you appear before this Court on or before the day appointed for the
hearing of the case and stated in the appended summons, and express you consent
to act as guardian for the suit for the minor, the Court will proceed to
appoint some other person to act as a guardian for the minor, for the purposes
of the said suit.
Given under my hand
and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . .
.,
Judge.
* Strike off the words which are not applicable.
No. 11A
Notice to Minor Defendant
(Order XXXII, Rule 3)
(Title)
To
Minor Defendant.
Whereas an
application has been presented on the part of the plaintiff in the above suit
for the appointment of . . . . . . . *as guardian for the suit for you, the
minor defendant, you are hereby required to take notice to appear in this Court
in person on the . . . . . . . day of . . . . . . . 19 . . . ., at . . . . . .
. O'clock in the forenoon to show cause against the application, failing which
the said application will be heard and determined ex parte.
Given under my hand
and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . .
.Judge
*Strike off the words which are not applicable.
05. COURTS ON MINORS’ SUITS
01. Doctrine of Parens Patriae
The
Latin word ‘parens patriae’ meaning "parent of his or her country/fatherland"
denotes the power of the state to act as guardian for those who are unable to
care for themselves, such as children or disabled individuals. For example,
under this doctrine a judge may change custody, child support, or other rulings
affecting a child's well-being, regardless of what the parents may have agreed
to.
By this doctrine Government has standing to prosecute a lawsuit on behalf
of a citizen, especially on behalf of someone who is under a legal disability
to prosecute the suit. The State ordinarily has no standing to sue on behalf of
its citizens, unless a separate, sovereign interest will be served by the suit.
Parens patriae is the inherent power and authority of a State to provide
protection to the person and property of persons non Sui juris (not
competent to age or independence), such as minor, insane, and incompetent
persons. This term generally is used to designate the State referring to
its sovereign power of guardianship over persons under disability.
In Heller v. Doe 509 U.S. 312
(1993), Justice Kennedy observed, The State has a legitimate
interest under its parens patriae powers in providing care to its
citizens who are unable to care for themselves.”
In State of Kerala v. N.M. Thomas 1976 AIR 490, 1976 SCR (1) 906, it has been categorically held that the Court is also
‘State’ within the meaning of Article 12 of the Constitution of India.
Thus, Court can also act as Parens Patriae so as to meet the ends of justice.
In Aruna
Ramchandra Shanbaug v. Union of India & Ors., 2011 (3) SCALE 298 the Supreme Court has stated that “in the case
of an incompetent person who is unable to take a decision whether to withdraw
life support or not, it is the Court alone, as parens patriae, which ultimately
must take this decision, though, no doubt, the views of the near relatives,
next friend and doctors must be given due weight.
In Suchita
Srivastava & Anr. v. Chandigarh Administration, Civil Appeal No. 5845 OF
2009, Supreme Court held that the doctrine of ‘Parens Patriae’ has been evolved in
common law and is applied in situations where the State must make decisions in
order to protect the interests of those persons who are unable
to take care of themselves.
There are two tests in relation to this doctrine. These tests help the
court to ascertain the course of action that it can adopt depending upon the
situation. These tests are merely guiding principles so as to help the court to
reach a logical conclusion.
1. ‘Best Interests’ Test – The ‘Best interests’ test requires the
Court to ascertain the course of action which would serve the best interests of
the person in question. It is important to note that the Court's decision
should be guided by the interests of the victim alone and not those of other
stakeholders such as guardians or society in general.
2. ‘Substituted Judgment’ Test – The application of the ‘Substituted
Judgment’ test requires the court to step into the shoes of a person who is
considered to be mentally incapable and attempt to make the decision which the
said person would have made, if he/she was competent to do so. This is a more
complex inquiry but this test can only be applied to make decisions on behalf
of persons who are conclusively shown to be mentally incompetent.
01. Doctrine of Parens Patriae and the Constitution of India
In Charan
Lal Sahu Etc. v. Union Of India And Ors., AIR 1990 SC 1480 Supreme Court held
that conceptually,
the Parens Patriae theory is the obligation of the State to protect and take
into custody the rights and privileges of its citizens for
discharging its obligations.
The Directive Principles as well as the Fundamental Rights enshrined in our
Constitution make it imperative for the State to secure to all its citizens the
rights guaranteed by the Constitution and where the citizens are not in a
position to assert these rights, the State comes into picture and protects the
rights of such Citizens.
The Preamble to our Constitution read with Article 38, Article 39 and
Article 39A makes it amply clear that the State must take up these
responsibilities. The State must strive to promote social, economic and
political welfare of the people. A harmony needs to be maintained between the
Fundamental Rights and the Directive Principles of State Policy by the State so
as to effectively discharge its commitments towards the people. While
discharging these commitments, the state may even deprive some rights and
privileges of the individual victims or their heirs to protect their other
important rights in a better manner and secure the ends of social welfare.
Article 38, Article 39 and Article 39A are reproduced below.
Article 38 (1) – The State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a social order in
which justice, social, economic and political, shall inform all the
institutions of the national life.
(2) The State shall, in particular, strive to minimize the inequalities in
income, and endeavour to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations.
Article 39 – The State shall, in particular, direct its policy
towards securing—
(a) that the citizens, men and women equally, have the right to an adequate
means of livelihood;
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender
age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material
abandonment.
Article 39A – The State shall secure that the operation of the legal
system promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities.
Some Scholars believe that Constitution is a Social Contract entered into
by the people amongst themselves so as to live cooperatively and harmoniously.
The values enshrined in our Constitution are a testimony of the standard of
governance and welfare that the people expect from their representatives to
maintain and carry out respectively. Doctrine of Parens Patriae
is simply one of the links in this long chain. This doctrine makes sure that
the voiceless, abandoned and disabled people are ultimately the responsibility
of the State and the State must take all the steps to ensure their well-being
as they are not in a position to do so.
02. General interpretations and Precedents on Suits by or against Minors
In Abdul Salam v. Chalil Sajitha & Anr OP (FC).No. 540 of 2016 (R), the High Court of Kerala observed, “Law of limitation applies to a minor as well unless a specific provision is available under the Limitation Act, prescribing any exemption as far as a minor is concerned. Section 6 of the Limitation Act, contemplates that where a person entitled to institute a suit or make an application for the execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified for the same in the third column of the Schedule. It is held in M.P. Steel Corpn. v. CCE, [(2015) 7 SCC 58 that Sec.6 of the Limitation Act, 1963 is a pointer to the fact that courts always lean in favour of advancing the cause of justice where a clear case is made out for so doing.”
"6. Legal disability - (1)Where a person entitled to institute
a suit or make an application for the execution of a decree is, at the time
from which the prescribed period is to be reckoned, a minor or insane, or an
idiot, he may institute the suit or make
the application within the same period after the disability has ceases, as
would otherwise have been allowed from the time specified therefor in the third
column of the Schedule.
Explanation - For the purposes of this section 'minor' includes a
child in the womb."
In Rangamnip v. Appasami (AIR 1973 Madras 12),
it is held that where the natural father of the minor has represented the minor
and participated in the suit, absence of a formal order of appointing him as a
Guardian ad litem does not vitiate the decree.
The
position may be different where the fraud or negligence is alleged against the
guardian. What amounts to negligence must depend on the facts of each case.
What has to be considered is whether by reason of the conduct of the guardian
the minor has been prejudiced and lost a valuable right. It was held in Gangadharan v.Narayanan (AIR 1959 Kerala
169), that the mere fact that the guardian remained ex parte is not
sufficient to establish negligence. It must further be shown that there was a
real defence to the action. Once it is
held that the minor was represented by the Guardian/mother and had become ex
parte, and it is found that there is negligence on the part of the mother in
prosecuting the case, the question is whether such a decree against the minor
requires to be set aside. As already indicated, Order XXXII Rule 3A clearly
indicates that no decree passed against a minor shall be set aside merely on
the ground that the Guardian had an interest in the subject matter of the suit
whereas it has to be shown that prejudice has been caused to the interest of
the minor. Though in the case on hand, guardian ad litem has not been appointed
by the Court, the mother represented the minor and had appeared, contested and
filed objection on her behalf and on behalf of the minor, opposing the claim of
the petitioner in the case.
But the
Court went on. “No doubt, the minor after attaining majority, and if she is
still aggrieved, can take appropriate steps in the matter to challenge the
decree, and this judgment shall not preclude the minor from taking such
action.”
In Chhotabhai Motibhai v. Dadabhai Narandas (1934) 36 BOMLR 738, 152 Ind
Cas 715 Bombay High Court held that the principle deducible
is that, although Section 462 of the Civil Procedure Code of 1882 does not
require that leave of the Court should be expressly recorded as is now required
by Order XXXII, Rule 7, of the present Civil Procedure Code, it is necessary
that the leave should be given after attention of the Court was directly called
to the fact that a minor was a party to it, and the Court should apply its mind
and ascertain whether the compromise was for the minor's benefit, that the
Court had to exercise its discretion and it was to be seen in each particular
case from the application and order thereon as to whether the Court intended to
grant such leave, but if no such leave is given, the compromise or the
withdrawal of the suit in virtue of a compromise is voidable at the instance of
the minor by a suit to avoid it, with the result that if the decree or order of
the Court disposing of the suit is set aside, the minor is restored to his
original position in that suit.
In Chinnamma And Anr. v. Gopal And Anr. 1996 (1) CTC 284 Madras High
Court held that minor is entitled to a partition when
his father is alive.
The
Karnataka High Court reported in Sharanappa v. Vellamma, I.L.R. 1988
Karnataka (Vol.38) page 1257, K. A. Swami J. considered the provisions of
Order.32, C.P.C. and the provisions of the Hindu Minority and Guardianship Act, and held thus;-
"The
provisions contained in Order 32, Rules 1 to 4 make it clear that there is a discretion
vested in the Court to appoint the natural guardian or any other person as
guardian or next friend of the minor as guardian-ad-idem. In addition to this,
any irregularity in the matter of appointment of next friend or guardian unless
it is demonstrated that it has caused prejudice to the minor does not vitiate
the proceeding... The appointment of the next friend under the provisions of
Order 32, C.P.C. does not in any way affect the power of the natural guardian
either under the Hindu Minority and Guardianship Act
or under Hindu Law”
In Sonubai Baburao Gaikawad v.
Shivajirao Krishnarao Gaikawad AIR1921Bom20; (1921) 23 BomLR 110; 60 Ind.
Cas. 919 Mumabi High Court held on 19.08.1920, “Assuming the allegation
of insanity to be well founded the position is that a minor litigant has been
prevented from appealing to this Court by reason of the fact that her next
friend was of unsound mind, and her claim to a large estate has been allowed to
go by default. The result would be deplorable were there no remedy, but the
hardship is no ground for interfereing unless interference is warranted by the
powers of the Court.”
In Somnath v. Tipanna Ramchandra Jannu AIR1973Bom276;
(1973)75BomLR177; 1973MhLJ910 Mumbai High Court observed, “we
do not see any provisions, which require the next friend of a minor to make a
separate application either to prove the minority of the plaintiff or to obtain
court's permission to permit him to sue as a next friend. Since the same
provisions are extended to a person of unsound mind while suing through the
next friend, we are of the view that no separate application is contemplated,
and none need be made by the next friend in that behalf.”
In Supdabai Badrinarayan Joshi v.
Subhash Kashinath Shrawak (1974) 76 BomLR 202 Bombay High
Court held that the doctrine of substantial
representation is a matter of substance and not of form. Where a minor was
effectively represented in a suit by a guardian, although not formally
appointed, and suffered no prejudice on account of the informality, the absence
of a formal order of appointment of guardian is not fatal to the suit.
In Chelimi
Chetty v. Subbamma (1917) I.L.R. 41 Mad. 442 it was decided that when a
minor on whose behalf a suit is filed dies before hearing, the action abates. In Rangasayi v.
Nagarathnamma (1933) I.L.R. 57 Mad. 95 and Mandliprasad
v. Ramcharanlal I.L.R. [1947] Nag. 848 it was held that such a suit does
not abate by reason of the death of the minor before trial, and that it is open
to his legal representatives to continue the suit and satisfy the court that
the institution of the suit was for the benefit of the minor, in which case
there would be, a division in status from the date of the plaint and the
interests of the minor in the joint family properties would devolve on his
heirs. To decide which of these two views is the correct one, we shall have to
examine the nature of the right which a minor coparcener has, to call for
partition and of the power which the court has, to decide whether the partition
in question is beneficial to the minor or not. Under the Mitakshara law, the
right, of a coparcener to share in the joint family properties arises on his
birth, and that right carries with it the right to be maintained out of those
properties suitably to the status of the family so long as the family is joint
and to have a partition and separate possession of his share, should he make a
demand for it. The view was at one time held that there could be no partition,
unless all the coparceners agreed to it or until a decree was passed in a suit
for partition. This question was finally settled by the decision of the Privy
Council in Girja Bai v. Sadashiv Dhundiraj
(1916) L.R. 43 I.A. 151, wherein it was held, on a review of the original
texts and adopting the observation to that effect in Suraj Narain v. lqbal
Narain (1912) L.R. 40 I.A. 40,45, that every coparcener has got a right to
become divided at his own will and option whether the other coparceners agree
to it or not, that a division in status takes place when he expresses his
intention to become separate unequivocally avid unambiguously, that the filing
of a suit for partition is a clear expression of such an intention.
In Lalta Prasad v.Sri
Mahadeoji Birajman Temple (1920) I.L.R. 42 All.
461,
it was observed: " The effect, therefore, we think, of an action brought
by a minor through his next friend is not to create any alteration of status of
the family, because a minor cannot demand as of right a separation; it is only
granted in the discretion of the court when, in the circumstances, the action
appears to be for the benefit of the minor."
In Hari
Singh v. Pritam Singh A.I.R. 1936 Lah. 504, a suit for partition instituted
on behalf of a minor was decreed, the court finding that it was for the benefit
of the minor. The question then arose as to the period for which the karta
could be made liable to account. It was held, following the decisions in Chelimi
Chetty v. Subbamma (1917) I.L.R. 41 Mad. 442 and Lalla Prasad v. Sri Mahadeoji Birajman Temple
(1920) I.L.R. 42 All. 461, that as the severance in status took place only
on the date of the decision and not when the suit was instituted, the liability
to account arose only from the date of the decree and not from the date of the
suit. In Chhotabhai v. Dadabhai
A.I.R. 1935 Bom. 54 Divatia J. quoted the decision in Chelimi Chetty v.
Subbamma[xvi]
with approval.
A Full
Bench decision of the Madras High Court in Rangasayi. v. Nagarathnamma (1933)
I.T.R. 57 Mad. 95, stated the position thus, "These instances show
that the object of the issue whether the suit was for the benefit of the minor
is really to remove the obstacle to the passing of the decree. It is no
objection to the maintainability of the suit. In my opinion therefore in all
such cases the severance is effected from the date of the suit conditional on
the court being able to find that the suit when filed was for the benefit of
the minor."
In
Nathumal v. Mohd. Nazir Beg, an Allahabad
High
Court case of non-representation under Order XXXII, Rule 3 and is a case of ex
parte decree, Minor Kailaschand was not represented in the suit at all and the
decree which was passed there was an ex parte decree. The notice which was
tried to be served on the guardian was also defective and no order was passed
by the Court also appointing the guardian for the suit against the minor. In
these circumstances therefore if the Allahabad High Court observed that the
decree passed against the minor is bad and may be ignored.
It is
well settled that the minor can avoid the decree if he was not effectively
represented in the suit, and where there is gross negligence on the part of the
guardian he cannot be said to have been effectively represented.
In Ganganand Singh v. Rameshwar Singh,
6 Pat. 388 : AIR (14) 1927 Pat. 271, decided in 1937, Das and Adami JJ.
held that even where a minor is represented by a gurdian-ad-litem not
disqualified from so acting, he can in a subsequent suit impeach the decree
passed in the previous suit on the ground that there was gross negligence on
the part of the guardian.
In 1984
Fazl Ali and James J. in Kali Charan Singh v. Eirdai Narain, AIR (22) 1935 Pat.
24: 154 I. C. 948, it was observed, "It is now well settled that gross
negligence, which may be interpreted as culpable neglect of the interest of a
minor defendant on the part of his guardian-ad-litem, will entitle the minor to
the avoidance of proceedings undertaken against him."
In 1935,
in Mathura Singh v. Rama Rudra Prasad Sinha, 14 Pat. 824 : AIR (23) 1936
Pat. 231, Khaja Mohamad Noor and Dhavle JJ. held that a minor can avoid a
decree passed against him on account of the gross negligence of his guardian.
Gross negligence, they held, amounts to fraud and affects the proper
representation of the minor and thus takes away the jurisdiction of the Court
to pass a decree.
In 1944,
in Madhusudan v. Jogindra 23 Pat. 640 : AIR (32) 1946 Pat 133 Fazl Ali
C.J., and Manohar Lall J. held that where a minor is properly a party to a
suit, that is to say, is represented by a guardian not disqualified from
acting, the jurisdiction of the Court to try and determine the cause as against
the minor is complete and cannot be ousted on proof that the Court did not
follow the proper procedure for the appointment of the guardian. Where,
however, the minor suffers, the matter is different, and at his instance a
decree against him in such action may be set aside.
However
the remarks of Lord Thaukerton in T. Venkata Seshayya
v. T. Kotiswara Rao 64 I. A. 17 : AIR (24) 1937 P. C. 1 is
different. He then said, "Here all that is alleged against the
guardian-ad-litem is gross negligence. This is obviously insufficient to entitle
the appellant to claim the protection of Section 44, Evidence Act,"
Gross negligence bad been alleged, but
it was held that the decision in the previous suit operated as res judicata,
nevertheless.
The principle
of res judicata has been incorporated in Section 11,
C.P.C., and the rules regarding suits by or against minors are embodied in
Order 32 of the present Code of Civil Procedure which are equivalent to Sections 440, 441, 442 and certain other sections of the old Code.
The provisions of Section 11, Civil
Procedure Code, to quote the language used by their Lordships of the Privy
Council in the case of T. Venkata Seshayya
v. T. Kotiswara Rao, 641. A. 17: AIR (24) 1937 PC 1, are
mandatory, and the Privy Council case of Mt. Bibi Walian v. Banks Behari
Pershad Singh, 30 I. A. 182: 30 Cal. 1021 P. C. is an authority is support
of the view that whenever it is found that a minor's interest has been
effectively represented in suit, it would not be open to the minor attaining
majority to challenge the decree passed against him even if it is found that
there were certain defects of procedure or irregularities with regard to the
fact of the appointment of the guardian in the suit.
Their
Lordships of the Judicial Committee in the case of Hari Saran Moitra v. Bhuneshwari
Debi, 15 I. A. 195: 16 Cal. 40 P. C. approved of the decision that had been
made by the Calcutta High Court in the case of Suresh Chander v.
Jagut Chander, 14 Cal. 204 (F.B.). The decision of the
Calcutta High Court in Suresh Chander v. Jagut Chunder[xvii],
was that if there is an error of description in a plaint of a suit which is
substantially brought against the minor that error of description cannot
without proof of prejudice invalidate a decree against the minor and also that
the want of a formal order appointing a guardian ad litem is not fatal to the
suit, when it appears from the face of the proceedings that the Court has
sanctioned the appointment.
In the case
of Satdeo Narain v. Ramayan Tewari,
2 pat. 835: AIR (10) 1923 Pat. 242, where a minor is properly a party to a
suit, that is, if he is represented on the record by a guardian not
disqualified from acting, the jurisdiction of the Court to try and determine
the cause against the minor is complete, and such jurisdiction will not be
ousted on proof that the Court did not follow the appropriate procedure for the
appointment of the guardian. This case was referred to with approval in Madhusudan
v. Jogendra, 23 Pat. 640: AIR (32) 1915 Pat. 133, and in this case the
distinction between a void decree and a voidable decree was pointed out, and
Manohar Lall J, with whom Sir Fazl Ali C. J , agreed, further observed that the
words that the decrees are null and void against the minors are often loosely
used. The ratio deoidendi from the decisions of this Court and the Calcutta
High Court and also from the Privy Council cases certainly is that even if a
minor is represented by a negligent guardian, it cannot be said that he is not
represented at all.
Sulaiman
J. in the Full Bench case of the Allahabad High Court reported in Siraj Fatma v. Mahmud Ali, 54 ALL. 646:
AIR (19) 1982 ALL. 293 F. B. observed as follows.
"It
therefore follows that the real basis of the binding character of a decree
again at a minor is the fact of his having been duly represented by a proper
person, and not the mere existence of any formal order appointing a guardian
for him. Even when there be such an order, if the guardian does not properly
represent him, the decree would not be binding. On the other hand, even it
there be any defeat in the formal appointment of a guardian, the decree would
be binding upon him if he is sufficiently represented and his interests are
well protected."
Rajamannar
C. J. in Parameswaran Pillai Velayudhan Pillai
v. Parameswaran Pillai Narayana Pillai, AIR 1961 Mad 345.
Observed, "Undoubtedly any person who is of sound mind and has attained
majority may act as next friend of a minor or lunatic for the suit, provided
that the interest of that person is not adverse to that of the minor or the
lunatic".
Order 32 of the Civil Procedure Code has been
enacted for the protection of the interest of minors. Vide the decision of the
High Court of Patna in Ramchandar Singh v.
Gopi Krishna, AIR 1957 Pat 260
and of the High Court of Madhya Pradesh in Tulsiram v. Shyamlal,
AIR 1960 Madh Pra 73. It would be an abuse of the statutory
protection, if a person who has no interest in the minor and who is not
concerned with his benefit, is permitted to institute suits in the name of the
minor for achieving that person's own object, or serving the interest of
others. The law allows two occasions for a minor to institute an action. One is
during the period of his minority and the other after he has attained majority.
In the first case, the action has to be instituted by a next friend.
The
following observations is contained in the judgment of Bhagwati J. in Santosh Kumari v. Chimanlal AIR 1950 Bom
307, "If it was the case of the respondent that the minor's name was
being bandied about or used with some ulterior motives or objects of the next
friend himself and the proceedings taken by the next friend ostensibly in the
name of the minor but really for some purposes of his own, it would have been
open to the respondent to take out proceedings to have the next friend removed
and on demonstrating before the Court in that behalf to have the proceedings
brought to a standstill".
Since the Privy Council decisions in the cases of Rashidunnissa,
36 Ind App 168 (PC) and Khairajmal, 32 Ind App 23 (PC) it is
indisputable that, even in the absence of fraud or prejudice, a suit lies at
the instance of a minor defendant to declare that the decree obtained against
him in a suit where he was not properly represented, is not binding on him (cf.
Champi v. Tarachand AIR 1924 All 892; Ramchandra v. Gopi Krishna,
(S) ; Annada v. Upendra,
26 Cal WN 781: (AIR 1921 Cal 600). The reason is that
in the absence of a proper representation, he could not be said to have been a
'party' to that previous suit, so that the decree passed therein became a
nullity so far as the minor defendant was concerned.
In Ganga Prasad Chowdhry v. Umbica Churu Coondoos
a suit was brought against a minor widow as heir of her deceased husband.
She was described in the cause title of the plaint as "the deceased debtor
Ramnath Acharjee's heir and minor widow Benodin i Dabee's mother and guardian
Anundomyee Dassee." The plaintiff obtained no order for the appointment of
a guardian ad litem. He however, obtained a decree wherein the minor
defendant was described in the same way. It was, therefore, held that minor was
neither a party to the original suit nor to the decree and that none of her
property passed upon a sale in execution of such decree.
In Walian v, Banke Behari, A.J.R. 1955 All. 584
service on the minor's mother who was named as their guardian had been
affected through the minors' major brother who was the manager of the joint
Hindu family of which the minors were members, and she had effectively
represented them in the suit and with the sanction of the court, though no formal
order had been made appointing her as the guardian. In these circumstances the
Privy Council held that the absence of a formal order of appointment was not
fatal to the suit unless it was shown that that the defect prejudiced the
minors.
There is
ample authority for the view that an unauthorised alienation by a guardian
recognised by law is voidable and not void, vide Luxmava Huchappa v.
Rachappa, (1918) 42 Bom 626 : (AIR 1918 Bom 180); Fakirappa Limanna Patil v. Lumanna Bin Mahadu Dhamnekar,
(1920) ILR 44 Bom 742 : (AIR 1920 Bom 1) and Brojendra Chandra Sarma v. Prosunna Kumar Dhar,
(1920) 24 Cal WN 1016 : (AIR 1920 Cal 776).
It is,
therefore, well-settled that a transfer of immovable property by the natural
guardian of a Hindu minor far from being void or being a nullity is in fact one
which fully binds the other party. The minor can always avail the benefit thereof
and after ratifying or accepting the same enforce the contract. Such a
transaction is perfectly valid until duly avoided by the minor. Not only that
precedent is unanimous that he can avoid the same only by restoration of any
benefits received under such a transfer and if he does not choose to do so, the
Court would refuse to avoid such a transfer. In Sri Chandra
Prabhuji Jain Tample v. Harikrishna, AIR 1973 SC 2564,
their Lordships have unequivocally observed as follows (at p. 2571).
"The
High Courts in this country have taken the view, and we think rightly that as
condition for setting aside a disposal of immovable property made in
contravention of Section 28 or Section 29 which is voidable under Section 30, it is just that there must be
restitution of the benefits received (see Pershotam Das v. Nazir Hussain,
AIR 1920 Oudh 53(2); Peria Karuppan
Chetty v. Kandasamy Chetty, 1933 Mad WN 791 and Abbas Husein
v. Kiran Shashi Devi, AIR 1942 Nag 12)."
06. CONCLUSION
The Code of Civil Procedure, 1908 Order XXXII thus
provides both for the proper representation of a suit by or against a minor by
his next friend. However if no representation, or representation through fraud
or representation with gross negligence is proved, a minor will get protection
as if he is not contested. The next friend may be changed or removed, but
normally a vacuum of the next friend is not allowed during the continuance of
the litigation. The State and the Court being parens patriae take adequate care
to protect the interests of the minor in prescribing laws and executing them,
though of course judicially.
BIBLIOGRAPHY
1.
The Code of Civil procedure, 1908 by R.
Suseelan and A.R. Anil kumar, published by Swamy Law House, Ernakulam, 3rd
Edition 2002
2.
The Code of Civil procedure, 1908 by
Ajith N., published by Swamy Law House, Ernakulam, 4th Edition 2005
3.
https://indiankanoon.org
4.
http://judis.nic.in/supremecourt/chejudis.asp
5.
http://judis.nic.in/judis_kerala/content.asp
6.
https://en.wikipedia.org/wiki/Main_Page
NOTES
[i]
Substituted by Act No. 104 of 1976, for rule 1 (w.e.f.
1.2.1976)
[ii]
Inserted by Act No. 104 of 1976 (w.e.f. 1.2.1977)
[iii]
Inserted by Act No. 104 of 1976 (w.e.f. 1.2.1977)
[iv]
The words "to the minor and" omitted by Act No.
104 of 1976
[v]
The words "to the minor and" omitted by Act No.
104 of 1976
[vi]
Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1.
2.1977)
[vii] Inserted by
Act No. 104 of 1976 (w.e.f. 1.2.1977)
[viii]
Inserted
by Act No. 104 of 1976 (w.e.f. 1.2.1977)
[ix]
Ibid
[x]
Ibid
[xi]
Ibid
[xii]
Ibid
[xiii]
Subs. by Act No. 104 of 1976 for rule 15 (w.e.f.
1.2.1977)
[xiv]
Substituted by Act 104 of 1976 for rule 16 (w.e.f.
1.2.1977)
[xv]
Substituted by Act No. 104 of 1976, for Form 11 (w.e.f.
1.2.1977)
[xvi] (1917) I.L.R. 41 Mad. 442
[xvii]
14 Cal. 204 (F. B.)
No comments:
Post a Comment