Suits by or Against Minors and Lunatics

Order XXXII(32) of Civil Procedure Code deals with suits by or against minors and lunatics.

According to section 37 of the Majority Act, 1875, “a minor is a person who has not attained the age of 18 years. But in the case of a minor of whose person or property a guardian or next friend has been appointed by a Court, or whose property is under the superintendence of a Court of wards, the age of majority is 21 years.”

Order XXXII has been enacted to protect the interest of minors and lunatics (person of unsound mind) and to ensure that they are represented in a suit by a person who is qualified to act as such. Owing to his want of capacity and judgment, a minor/lunatic is disabled from binding himself except where it is for his benefit. A decree passed in favor of minor/lunatic without appointment of a guardian is not nullity but a decree passed against a minor/lunatic without appointment of guardian is a nullity.

Filing or Defending of Suit on Minor’s Behalf (Order XXXII, Rules 1-14)

Suits by Minor: Rules (1 to 2A) – Under these provisions, a suit by a minor should be instituted in his name through his guardian or next friend. Under rule 2A, the Court has power to order the next friend to furnish security for costs of defendant. The object is to discourage vexatious litigation by the next friend of minor.

Rule 3 – Order XXXII, rule 377, where a suit is instituted against a minor the Court should appoint a guardian ad litem to defend the suit. The appointment of such guardian or next friend is for throughout the proceedings unless it is terminated by retirement, removal or death of such guardian.

Qualifications as to be a Guardian or Next Friend

Under rule 4, any person who is competent in law to make a contract or who has attained majority and is of sound mind, may act as a guardian or next friend, provided that his interest is not adverse to that of minor, nor who is an opposite party in the suit and who has given his consent in written to act as a guardian or next friend. However, besides all this Court may also appoint any of its officer to act as a guardian/next friend if it is of the view that no person is competent for that.

Power and Duties of a Guardian/Next Friend (Rules 5-7)

In all suits to which a person is appointed as a guardian/next friend can, without the leave of the Court:

(1) receive any amount, movable property by way of compromise.

(2) he cannot enter into any agreement or compromise on his behalf (minor’s) in the suit.

These two above mentioned conditions are mandatory and are provided specially in rules 6 and 7.

Rules 6 and 7 are designed to safeguard the interest of a minor during the pendency of a suit against hostile, negligent or collusive acts of a guardian. They are based upon the general principle that an infant litigant becomes the ward of the Court and the Court has got the right/duty to see that the guardian acts property and in bona fide manner in the interest of minors.[i]

Retirement, Removal or Death of such Guardian/Next Friend (Rules 8-11)

A next friend cannot retire without procuring a fit person for substituting him and giving security for the costs already incurred by him (Rule 8).

The Court may remove a next friend in the following circumstances, if:

(i) his interest is ‘adverse to that of a minor’; or

(ii) lie is so connected with the defendant as to make it unlikely that the minor’s interest will not be protected by him; or

(iii) he does not do his duty; or

(iv) he ceases to reside within India during the pendency of a suit; or

(v) for any other sufficient cause.

Where the guardian/next friend desires to go/retire or fails to discharge his duty or where there are other justifiable grounds, the Court may permit such guardian or next friend to retire or may remove him or may also make such order as it thinks fit.

On retirement, removal or death of a guardian or next friend, further proceedings in the suit shall remain stayed until another competent guardian/ next friend is appointed. (Rule 10)

Minor Attaining Majority (Rules 12-14)

These provisions clears the situation of the proceedings and the duties of the next friend, when minor attains majority. On attaining majority, a minor plaintiff may choose any of the following:

(i) may proceed with the suit, discharging the guardian/next friend with the leave of the Court.

(ii) may abandon the suit and may apply for its dismissal on repayment of cost to the defendant or to his guardian or next friend.

(iii) may apply for withdrawal of suit on the grant of it being unreasonable or in proper.

(iv) And in case, he is a co-plaintiff he may apply for repudiation of suit and may apply to strike-off his name as co-plaintiff.

Decree against minor

Rule 3A lays down that 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 interest in the subject-matter of the suit adverse to that of minor. But if the minor is prejudiced by reason of such adverse interest, it shall be a ground for setting aside the decree.

In Ramchandra Arya v. Mansingh[ii], one Ramdas filed a suit for recover)’ of certain sum against Ramlal in Court of Judge, small causes. That suit was transferred to the Court of Munisif and an ex parte decree in that suit was passed, after the Court held that Ramlal was sufficiently served. In execution of the decree, the house of Ramlal (of unsound mind) was sold and sale certificate was issued in favour of one Prabhudayal. However, Ramlal continued to live in the house and he died leaving no heir, the property by escheat passed to Maharaja of Jaipur.

Prabhudayal filed a suit for possession of the house. The suit was contested on the ground that Ramlal was a lunatic and earlier suit instituted against Ramlal without appointment of a guardian ad litem, the decree in the suit was a nullity. The sale in execution of the decree was void.

The defense was accepted by Trial Court and suit was dismissed. The first Appellate Court also upheld the decision. The Bench of the High Court also confirmed the decision of lower courts, consequently the appellant has come up to the Apex Court by special leave. The Supreme Court held:

The decree was passed in contravention of Order XXXII, rule 15 of the Code of Civil Procedure, 1908 Ramlal was insane when the first suit was instituted as well as when the house was sold in execution of decree passed in the suit. It is settled that decree passed against a minor without appointment of a guardian null and void. This principle becomes applicable to the case of lunatic in view of Order XXXII, rule 5 of the Code of Civil Procedure, 1908, so that decree obtained against Ramlal be created as without jurisdiction and void.

In this case no right could be acquired by the purchaser Prabhudayal.

In Kasturi Bai v. Anguri Chaudhary[iii],the plaintiff respondent filed a suit against the appellant for partition of certain immovable properties. The appellant No. 1 herein at relevant point of time aged 87, she deluged that because of increased age she is unable to understand and give directions to her lawyer and requested the court to summon her for inquiring about her state of mind and upon medical examination, if necessary, a guardian be appointed for defending her suit.

The leaned trial judge dismissed the said application of plaintiff respondent. Plaintiff-respondent filed a revision application in terms of section 115 of the Code of Civil Procedure, 1908 before the High Court. The High Court allowed the revision application stating:

The Trial Court acted with material irregularity in rejecting the application of the plaintiff-respondent under Order XXXII, rule 15 of the Code of Civil Procedure, 1908 for appointment of guardian the appellants filed an application for recalling of the said order, inter alia, on the ground that notices were not served upon them. This application instead of being disposed by single judge was placed before a Division Bench of High Court. The bench considered the application to be an appeal against the order of learned single judge and dismissed the same by impugned order.

The Supreme Court held:

The learned Trial Court refused to hold enquiry so as to enable it to arrive at a finding as to whether the respondent was incapable of protecting her interest by reason of her mental infirmity. The learned single Judge committed a jurisdictional error in passing the impugned judgment. The Division Bench committed a manifest error in treating the application for recalling as an appeal against the order passed by the learned single judge of High Court. The impugned judgment is set aside and the matter is directed to be remitted to the learned trial Judge for consideration of the matter afresh strictly in terms of Order XXXII, rule 15 of the Code of Civil Procedure, 1908.

[i] Dhirendra Kumar v. Sughandhi Bain,AIR 1989 SC 147: JT 1988 (3) SC 778: (1988) 2 SCALE 1539.

[ii] Ramchandra Arya v. Mansingh,AIR 1968 SC 954.

[iii] Kasturi Bai v. Anguri Chaudhary, (2003) 3 SCC 225.

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