ABSTARCT

The object of the Civil Procedure Code is to ensure the conduct of fair trial by making
mandatory provisions for proper representation. The jurisprudence is that minors and persons of
unsound mind are deemed incapable of prosecuting or defending a suit himself and make himself
liable for costs, it is necessary that his interest in the suit should be watched by a fit adult person.
To uphold the principles of natural justice and ensure the removal of bias against minors and
persons of unsound mind, Order XXXII of the Civil Procedure Code lays down the procedure in
the suits where a minor or a person of unsound mind is a party. Thus, it is a settled principle is
that minor or a person of unsound mind cannot sue and cannot be sued. However, the principle
has been interpreted time and again to protect the aim of the provision and the article aims to
analyse the interpretation of the extended principles.

Introduction

As per the Indian Majority Act, a minor is a person who has not completed the age of 18 years,
irrespective of the gender and religion. Even when under Muslim law, a Muslim woman is
considered major but is minor as per Majority Act, she cannot sue without next friend, eg, for
dissolution of marriage or divorce.1

NEXT FRIEND AND GUARDIAN AD LITEM

Rule 1 of Order XXXII states 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. When some suit is instituted
against minor defendant, guardian for suit is appointed for such minor defendant and such
guardian is called guardian ad litem. In case of absence of next friend, the defendant is entitled to
apply for taking off the plaint, under Rule 2. Where the defendant is aware of the minority of the
plaintiff and lets the trial proceed without objection cannot later contend the suit to be a nullity, it
will be considered as a mere irregularity which can be waived. 2

There is a difference between a decree obtained against a minor without appointed a guardian for
him and a decree in a suit brought by a minor without being represented by a next friend, in the
latter case, there is no duty imposed on the court as under the case of minor defendant.
Gulabchand v Fulchand A1959 B 232

INTEREST OF THE MINORS

It has been held time and again that to uphold the objective of the Order, the interest of minor
should be given importance over other facts. For instance, where the interest of the minor is

1
Usman v Khatoon AIR 1988 Ker 138
2
Shanmugham and Ors. vs. Vellaiyappa Gounder and Ors., MANU/TN/3412/2015
affected by the sale of the family property by the father, it was held that the mother could file a
suit as the guardian of the minor, without waiting to see if the father will take up the cause.3

In suit against a minor widow wife as heir of her husband, the guardian obtained the decree
without the appointment as guardian ad litem and without making the minor party to the suit, the
decree couldn’t be enforced.

ELIGIBILTY OF THE GUARDIAN AD LITEM

Rule 3

The conditions necessary for the appointment of a guardian ad litem

 Minor defendant
 An application for appointment with an affidavit that the person is fit and has no adverse
interest
 Service of notice upon the person appointed by the authority, the natural guardian or in
whose care the minor is.
 Consent of the person

The conditions laid down are mandatory and imperative and without consent, the minor goes
unrepresented and the decree does not bind him. However, it should be taken care of that the
guardian is not interested in the suit. But only when there has been a prejudice against the minor
that the suit can be set aside. The mother is not disqualified to act as the next friend to a claim
against the father, AIR 1985 Ker 20

Proper inquiry before appointing Officer of Court as guardian, but it is just an irregularity in case
the enquiry is not proper. – satisfied there is no other fit person.

Compromise filed on behalf of minor without appointment of guardian ad litem is nullity and a
suit can be filed to set it aside. AIR 2003 J&K 6

And when a minor is impleaded in his individual capacity, a decree against the manager of the
joint family who represents the whole Hindu Family, does not apply to minor. Chandi v Balaji

The phrase “every application” in Rule 5 has been held to include every and no order affecting
the minor can be made without him being properly represented. Sub rule 2 applies only when

3
Minor Prerak Rakeshbhai Desai thro Pragatiben Rakeshbhai and Anr. vs. State of
Gujarat, MANU/GJ/0726/2009
there is no guardian appointed, not where the appointment has been held illegal subsequently.
1947 (2) Cal 73

Rule 7

Object to protect the minor against hostile, negligent or collusive acts of a guardian A 1962 SC
1886

Imperative and strictly complied with.

Requisites for valid compromise:

Application by the next friend, grant by the court, consent of the NF to the compromise.

Not before negotiation started- application – A 1940 P 663

Leave after considering the terms.

Compromise in anticipation of leave and it being granted later is alright – 1948 1 Cal 31

“expressly recorded” important to protect the interest of the minor. Sanction can be only
questioned if the court has failed to apply its mind – Jairaj v mustafi

May make necessary alterations – Chandulal v Nagindas

“with reference to the suit”- limited to rights in the issue

Protection during pendency

Agreemrrnt or compromise with the party to the suit or their legal rep. – not covers a transfer to
decree someone unconnected with the suit.

WHEN MINOR ATTAINS MAJORITY

In the matter of Asha Rani v. Amrat Lal, it has been held that where the
record of the case did not show that an enquiry of preliminary nature into
unsoundness of mind of the party was made or the procedure contained in
Rule 3 and 15 of the Code was complied with, the decree passed against
person of unsound mind would be void.

Way back a Division Bench of Calcutta High Court in the matter

of Samaresh Chakravarti and another v. Jalpaiguri Banking and
Trading Corporation Ltd. held that executability of a decree passed
against a lunatic without appointing a guardian for him in the suit, can be
raised at the stage of execution.
In the matter of Ram Chandra Arya v. Man Singh and another, the
Supreme Court has held that decree against lunatic without appointment of
guardian is nullity and sale held in execution of that decree is void ab initio.

ORDER XXXII: SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

Object of having next Friend or Guardian Ad-Litem

Such person is, in the case of a minor plaintiff called his next-friend and in the case of a minor
defendant his guardian ad-litem or guardian for the suit.

However, when a suit is filed against a minor, the Court should appoint a person who is “not
interested” in the suit as the Guardian for the suit for such minor. The appointment of the
Guardian shall, unless 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.

But in case of the “interested” next friend or guardian, the decree against the minor cannot be set
aside unless prejudice has been caused.

Eligibility of the next friend or the guardian

(1) Any person who is of sound mind and has attained majority with his consent may be
appointed by a competent authority as next friend of a minor or as his guardian for the suit.
ADD THIS

No Permission/Leave Of The Court Necessary For ‘Next Friend’ To Institute Suit On Behalf Of
Minor: SC

https://www.livelaw.in/no-permission-leave-court-necessary-next-friend-institute-suit-behalf-
minor-sc-read-judgment/

Under rule 12 of Order 32 of CPC, which deals with suits filed by minors on them attaining
majority, it was said in the case of Vidya Wati (deceased) through her L.Rs. V. Hans Raj
(deceased) through his L.Rs., AIR 1993 Del 187 , that under the specific provision mentioned
above no dismissal of the suit is needed in case minor has decided not to pursue the matter after
attaining majority.