Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 22969 OF 2017
Nagaiah and another ..Appellants
Versus
Smt. Chowdamma (dead) By Lrs.
and another ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. The judgment dated 08.01.2013 passed by the High Court
of Karnataka at Bangalore in Regular Second Appeal No. 1102 of 2004
is called in question in this appeal by the unsuccessful plaintiffs.
Signature Not Verified
2. Brief facts leading to this appeal are: Original Suit No. 228
Digitally signed by
SARITA PUROHIT
Date: 2018.01.10
13:10:50 IST
Reason:
of 1989 was filed by the appellants herein (plaintiffs 1 and 2
1
respectively in the suit) praying for a declaration that the suit
schedule property is the joint property of the appellants along with
their father Kempaiah (defendant no.1 in the suit/respondent no.2
rd
herein) and that they are entitled to 2/3 share in the said property;
that the sale deed executed by the fatherKempaiah (defendant no.1 in
the suit/respondent no.2 herein) in favour of defendant
rd
no.2/respondent no.1Chowdamma was not binding on their 2/3
share in the suit schedule property. A relief for permanent injunction
was also sought. A certain set of other facts was also 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, the
appellant no.2 herein, namely, Krishna was aged about 17 years. The
appellant no.1/Plaintiff No.1 herein being the elder brother of
appellant no.2 filed the suit not only on his personal behalf but also
on behalf of the second appellantsecond plaintiff (who was a minor).
3. The trial Court dismissed the suit on merits. The first
Appellate Court allowed the Regular Appeal No. 90 of 2003 filed by the
unsuccessful plaintiffs and decreed the suit. Aggrieved by the
judgment of the first appellate Court, the unsuccessful defendant
no.2 Chowdamma/purchaser of the property filed Regular Second
Appeal before the High Court of Karnataka at Bangalore.
2
By the impugned judgment, the High Court has allowed the
appeal and dismissed the suit mainly on the ground that the plaintiff
no.1 being the elder brother could not act as the guardian of plaintiff
no.2 during the lifetime of Kempaiah, the father of the plaintiffs
(defendant no.1), inasmuch as plaintiff no.1/appellant no.1 was not
appointed as a guardian of the minor plaintiff no. 2 by any competent
Court. Since the first defendant is the father of plaintiff no.2, he was
the natural guardian and hence he could only represent plaintiff no.2
and none else.
It is to be noted that no issue was raised in the trial Court
with regard to competency of plaintiff No.1 to represent plaintiff no.2
in the suit. Even in the first appellate Court, such question was not
raised, hence not considered. However, the High Court seems to have
permitted such question to be raised for the first time in the second
appeal, since it is purely a question of law.
4. Hence, the only question to be decided in this appeal is,
whether the first plaintiff being the elder brother of minor second
plaintiff (at the time of filing of the suit) could have filed the suit on
behalf of the minor as his next friend/guardian.
3
5. The High Court, while coming to the conclusion that the
first plaintiff could not have acted as a guardian of the minor second
plaintiff, has relied upon Section 4(b) of the Hindu Minority and
Guardianship Act (hereinafter called as ‘Hindu Guardianship Act’).
SubSection (b) of Section 4 of the Hindu Guardianship Act reads as
under:
“ (b) "guardian” means a person having the care of the
person of 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 enactment relating 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
plaintiff no.2 and consequently plaintiff no.1 could not have acted as
the guardian in the suit on behalf of minor plaintiff, particularly when
he was not appointed as a guardian by any competent court of law. In
our considered opinion, the High Court has totally misdirected itself
while concluding so.
6. There cannot be any dispute that the plaintiff no.1 did not
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and does not come within the meaning of a “Guardian” as specified in
subsection (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 of the
Code of Civil Procedure (hereinafter referred to “Code”). To decide the
present controversy it would be relevant to note the following
provisions as contained in Order XXXII, Rules 1, 3, 6, 7, 9, 12, 13
and 14 of the Code (as amended in Karnataka State, since the matter
is from Karnataka State) :
1. Minor to sue by next friend .–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.
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[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,
(1) Where a suit is
plaint to be taken off the file.–
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.
3. Qualifications to be a next friend or guardian .—
(1) Any person who is of sound mind and has attained
5
majority may act as next friend of a minor or as his
guardian for the suit:
Provided that the interest of that person is not adverse
to that of the 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 be superseded only for reasons recorded.— Where a
minor has a guardian appointed or declared by
competent authority, no person other than the 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 he permitted to act or oe appointed
as the case may be.
(3) 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 the minor.
A person appointed as guardian under this subrule,
shall, unless his appointment is terminated by
retirement or removal by order of Court on application
made for the purpose or by his death, continue
throughout all proceedings in the suit or arising out of
the suit including proceedings in any appeal or in
revision and any proceedings in execution of a decree
and the service of any process in any such proceeding
on the said guardian if duly made shall be deemed to be
good service for the purposes of such proceedings.
(4) An order for the appointment of a guardian for the
suit may be obtained upon an application in the name
and on behalf of the minor or by the plaintiff. The
application where it is by the plaintiff shall whenever
necessary set forth in the order of their suitability a list
of persons who are competent and qualified to act as
guardian for the suit for the minor defendant.
(5) The application referred to in the last preceding sub
rule whether made by the plaintiff or on behalf of the
minor defendant shall be supported by an affidavit
verifying the fact that the proposed guardian has not or
that no one of the proposed guardians has any interest
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in the matters in controversy in the suit adverse to that
of the minor and that the proposed guardian or
guardians are fit persons to be so appointed. The
affidavit shall further state according to the
circumstances of each case particulars of any existing
guardian appointed or declared by competent authority,
the name and address of the person, if any, who is the
de facto guardian of the minor, the names and
addresses of persons, if any, who, in the event of either
the natural or the de facto guardian or the guardian
appointed or declared by competent authority, not being
permitted to act, are by reason of relationship or
interest, or otherwise suitable persons to act as
guardians for the minor for the suit.
(6) An application for the appointment of a guardian for
the suit of a minor shall not be combined with an
application for bringing on record the legal
representative of a deceased party.
(7) No order shall be made on any application under
subrule (4) above except upon notice to the minor and
also to any guardian of the minor appointed or declared
by an authority competent in that behalf, or where there
is no such guardian upon notice to the father or natural
guardian of the minor or where there is no father or
natural guardian upon notice to the person in whose
actual care the minor is and after hearing any objection
which may be urged on behalf of any person so served
with notice. The notice required by this subrule shall
be served at least seven clear days before the day
named in the notice for hearing of the application.
(8) Where none of the persons mentioned in the last
preceding subrule is willing to act as guardian, the
Court shall direct notice to other person or persons
proposed for appointment as guardian either
simultaneously to some or all of them or successively as
it may consider convenient or desirable in the
circumstances of the case. The Court shall appoint such
person as it thinks proper from among those who have
signified their consent and intimate the fact of such
appointment to the person appointed by registered post
unless he is present at the time of appointment either in
person or by pleader.
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(9) No person shall be appointed guardian for the suit
without his consent and except in cases where an
applicant himself prays for his appointment as guardian
notices issued shall clearly require the party served to
signify his consent or refusal to act as guardian.
(10) Where the Court finds no person fit and willing to
act as guardian for the suit the Court may appoint any
of its officers or a pleader of the Court to be a guardian
and may direct that costs to be incurred by that officer
or pleader in the performance of his duties as 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 and may give
direction for the repayment or allowance of the costs as
justice and the circumstances of the case may require.
(11) When a guardian for the suit as a minor defendant
is appointed and it is made to appear to the Court that
the guardian is not in possession of any or sufficient
funds for the conduct of the suit on behalf of the
defendant and that the defendant will be prejudiced in
his defence thereby, the Court may from time to time
order the plaintiff to advance moneys to the guardian
for the purpose of his defence and all moneys so
advanced shall form costs of the plaintiff in the suit.
The order shall direct that the guardian as and when
required by the Court shall file into Court the account
of the moneys so received by him."
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
8
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:
28
[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.]
Provided that the Court may in its discretion dispense
with the security in cases where the next friend or
guardian for the suit is a manager of a joint Hindu
family or the Karnavan of a Tharwad or the Ejaman of
an Aliyasanthana family and the decree is passed in
favour of such joint family or Tharwad or the
Aliyasanthanafamily as the case may be.
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 proceeding, 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.
(2) Where an application is made to the Court for leave
to enter into an agreement or compromise or for
withdrawal of a suit in pursuance of a compromise or
for taking any other similar action on behalf of a minor
or other person under disability, the affidavit in support
of the application shall set out the manner in which the
proposed compromise, agreement or other action is
likely to effect the interests of the minor or other person
under the disability and the reason why such
compromise, agreement or other action is expected to be
for the benefit of the minor or other person under
9
disability, where in such a case the minor or the other
person under disability is represented by counsel or
pleader, the said counsel or pleader shall also file into
Court along with the application a certificated to the
effect that the agreement or compromise or action
proposed is in his opinion for the benefit of the minor or
other person under disability. If the Court grants leave
under subrule (1) of this Rule, the decree or order of
the Court shall expressly recite the grant of the leave
sought from the Court in respect of the compromise,
agreement or other action as aforesaid after
consideration of the affidavit and the certificate
mentioned above and shall also set out either in the
body of the decree itself or in a schedule annexed
thereto the terms of the compromise or agreement or
the particulars of other action.
(3) 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.
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 the 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
10
as to the costs already incurred in the suit as it thinks
fit
12. Course to be followed by minor plaintiff or
.– (1) A minor plaintiff
applicant on attaining majority
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 coplaintiff 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 coplaintiff and on the defendant.
(3) The costs of all parties of such application, and of all
or any proceedings theretofore 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,
11
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, may 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.
14A. When a minor defendant attains majority either
he or the guardian appointed for him in the suit or the
plaintiff may apply to the Court to declare the said
defendant a major and to discharge the guardian and
notice thereof shall be given to such among them as are
not applicants. When the Court by order declares the
said defendant as major it shall by the same order
discharge the guardian and thereafter the suit shall be
proceeded with against the said defendant as a major.
A bare reading of Order XXXII, Rule 1 of the Code 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 SubSection (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
12
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 aforesaid 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 the Code. 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 exists in that
ad litem
specific litigation in which appointment occurs. Various High Courts
have also adopted this view. The Madras High Court in
Kaliammal,
minor by Guardian, Patta Goundan v. Ramaswamy Goundan, AIR
1949 Mad. 859 observed that there is no need of sanction of the
Court for a next friend to sue, if he is not incapacitated. This was also
13
the view taken by the High Court of Allahabad in
K. Kumar v. Onkar
Nath, AIR 1972 All. 81.
7. The Kerala High Court upheld the same in no uncertain
terms in Gopalaswamy Gounder v. Ramaswamy Kounder, AIR 2006
Ker 138 . In that case, the High Court observed that any person who
does not have any interest adverse to that of the minor can figure as
his next friend. It held as follows:
“Law does not contemplate the appointment of a
next friend for a minor who institutes a legal
proceeding either as a Plaintiff or as a Petitioner.
The object of a minor being represented through a
next friend is only for the purpose of enabling the
opposite party to look upon the next friend for costs,
if any, ordered against the minor…”
…. …. ….
Where the minor institutes a proceeding as a
Plaintiff or applicant any person who does not have
any interest adverse to that of the minor can figure
as his next friend. The mere fact that the minor's
mother Selvi was appointed as the guardian of the
minor in execution proceedings where the minor
was impleaded as an additional Respondent, will
not disable Gopalaswamy Kounder from styling
himself as the next friend of the minor for the
purpose of filing the petitions under Order 21, Rule
90 Code of Civil Procedure There was absolutely no
necessity for the next friend to seek his
appointment as the next friend nor was the court
below justified in dismissing the said application.
Even in a case where the proceedings are instituted
by the minor through his next friend, the real
Plaintiff or applicant is the minor himself and not
the next friend.”
8. Not only, is there no provision for appointment of next
14
friend by the Court, but the permission of the Court is also not
necessary.
However, even in respect of minor defendants, various High
Courts are consistent in taking the view that 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. The High
Courts have observed in the case of minor defendants, where the
permission of the Court concerned under Order XXXII Rule 3 of the
Code 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. For reference, see the cases of
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.
In the matter on hand, 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.
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9. “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.
10. 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.
11. It is by now well settled and as per the provisions of Order
XXXII of Code that any person who is of sound mind, who has
attained majority, who can represent and protect the interest of the
minor, who is a resident of India and whose interest is not adverse to
that of the minor, may represent the minor as his next friend. Such
person who is representing the minor plaintiff as a next friend shall
not be party to the same suit as defendant. Rules 6 and 7 of Order
XXXII of the Code specifically provide that the next friend or guardian
16
in the suit shall not without the leave of the Court receive any money
or immovable property and shall not without the leave of the Court
enter into any agreement or compromise. 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 Code 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 of the
Code. Rule 9 of Order XXXII – apart from other factors, clarifies that
where a next friend is not a guardian appointed or declared by the
authority competent in this behalf and an application is made by the
guardian so appointed or declared who desires to be himself appointed
in the place of the next friend, the Court shall remove the next friend
unless it considers, for reasons to be recorded, that the guardian
ought 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 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
17
represent the minor plaintiff from the date of attaining majority by the
minor. Order XXXII Rule 12 of the Code requires the minor plaintiff to
have the option either to proceed with the suit or to abandon the suit
and does not at all provide that if no such election is made by the
minor plaintiff on attaining majority, the suit is to be dismissed on
that ground. In case, if the Court discovers during the pendency of the
suit that the minor plaintiff has attained majority, such plaintiff needs
to be called upon by the Court to elect whether he intends to proceed
with the suit or not. In other words the minor who attained majority
during the pendency of the matter must be informed of the pendency
of the suit and in the absence of such a notice the minor cannot be
imputed with the knowledge of the pendency of the suit. So, before
any adverse orders are to be made against the minor who has attained
majority, the Court has to give notice to such person. Of course, in the
present matter, under the facts and circumstances, such occasion did
not arise, since plaintiff no. 2 on attaining majority has continued with
the 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 next
friend appointed under Order XXXII of the Code. The appointment of a
guardian to represent the defendant or a next friend to
ad litem
18
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 subsection (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 Code, 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.
13. In the case on hand, respondent No.2/defendant 1, though
was the father of the 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 vendor of the property i.e. against the natural guardian by
plaintiff no.2 in the suit while questioning the validity of the sale deed.
The action of respondent no.2 herein (defendant no.1) in selling the
property without any 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 did not have any adverse interest to that of plaintiff
no.2, has properly represented plaintiff no.2 as his next friend. The
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plaintiff no.2 has not made a single allegation against the plaintiff
no.1/his next friend, after he attained majority.
14. The minorplaintiff no.2 had attained majority within one year
from the date of filing of the suit. The suit, as aforementioned, was
filed on 21.04.1985 when the plaintiff No.2 was 17 years of age. Thus
plaintiff no.2 attained the age of majority on or about 20.04.1986.
Evidence of PW1 (the first witness of the plaintiffs) was recorded on
15.10.1992, which means, 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 nonsuit the plaintiff no.2 for the aforementioned
reasons.
15. Though records are not produced before us to show that
plaintiff no.2 had filed a formal application for discharging the next
friend after he attained majority, the fact remains that he has
continued with the proceedings on his own, from the trial Court to this
Court. The same clearly shows his intention of continuing with the
litigation. He has not abandoned his claim but has elected to continue
with civil action.
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16. To sum up, 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 timetested 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.
17. In view of the above discussion, we are of the opinion that
the impugned order relying upon the provisions of Hindu
Guardianship Act to nonsuit the 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. Accordingly,
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this appeal is allowed to the aforesaid extent, the judgment of the High
Court is set aside and the matter is remitted to the High Court for a
fresh decision on merits, in accordance with law. Needless to
mention, that we have not expressed any opinion on the merits of the
case. There shall be no order as to costs.
…………………………………J.
[Arun Mishra]
…………….……………………J.
[Mohan M. Shantanagoudar]
New Delhi;
January 08, 2018
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ITEM NO.1501 COURT NO.10 SECTION IV-A
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).22969/2017
NAGAIAH & ANR. Appellant(s)
VERSUS
SMT. CHOWDAMMA (DEAD) BY LRS. & ANR. Respondent(s)
Date : 08-01-2018 This appeal was called on for pronouncement
of Judgment today.
For Appellant(s) Mr. Nikhil Majithia,Adv.
Mr. Yadav Narender Singh,AOR
For Respondent(s) Mr. Nishanth Patil,Adv.
Mr. Prasanna Mohan,Adv.
Mr. Anup Jain,AOR
Hon’ble Mr. Justice Mohan M. Shantanagoudar
pronounced the Reportable Judgment of the Bench comprising
Hon’ble Mr. Justice Arun Mishra and His Lordship.
The appeal is allowed with no order as to costs in
terms of the signed Reportable Judgment. Pending
application, if any, stands disposed of.
(Sarita Purohit) (Jagdish Chander)
Court master Branch Officer
(Signed Reportable Judgment is placed on the file)
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