FACULTY OF LAW,

JAMIA MILLIA ISLAMIA

CIVIL PROCEDURE CODE PROJECT

TOPIC: SUIT BY OR AGAINST MINORS

Project submitted to Project

submitted by:

Dr. EKRAMUDDIN MALIK ANHA RIZVI

Roll No. 12

Sem.
VII(S/F)

CONTENTS
ACKNOWLEDGEMENT.........................................................................................................3

INTRODUCTION......................................................................................................................4

PROCEDURE OF SUIT BY MINOR....................................................................................5-8

SUIT AGAINST MINOR AND GUARDIAN AD LITEM......................................................9

MODEOF MAKING APPOINTMENT..................................................................................10

EXCEPTIONS.........................................................................................................................11
CONCLUSION.......................................................................................................................12
BIBLIOGRAPHY...................................................................................................................13

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 ACKNOWLEDGEMENT
Gratefulness is the noble response of one’s soul to kindness or help generously rendered by
another and its acknowledgment is an obligation and joy. So, it is that I express whole
heartedly to those who have made the creation of this project possible.

First of all I thank the almighty, Lord on whom I believe and depend on. My each and every
achievement is nothing but the showers of blessing He gives me.

I also thank Dr. Ekramuddin Malik for selecting me to work on this project and guiding me
throughout. I am extremely grateful to all my friends and all my well wishers who had helped
in the completion of this project. Last but never the least I extend my wholehearted
thankfulness to the librarians & and the office staff.

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 INTRODUCTION

Minor is a person who has not yet completed the age of 18 years and in the case of a minor,
one of whose person or property, a guardian has been appointed by a court or of whose
property is under the Court of Wards the age of majority is completion of 21 years. (S. 3,
Indian Majority Act, 1875).
Law purely insists that the minor's interests in litigation should be taken care of and it is
necessary that he should be properly represented by a person who can safeguard his interests.
The law contains complete adequate provisions to safeguard the interests of the minor in the
matter of civil litigation. Order 32 of the Civil Procedure Code deals with suits by or against
minors. It is necessary that no proceedings shall be taken by a minor without a next friend. In
the same manner, in case of suits which are filed against defendants, who are minors, the
appointment of a guardian is to be made by the court. Qualifications which have prescribed
for acting as the next friend or guardian for purposes of the suit are that he should be a person
of sound mind, should have attained maturity and that his interest is not adverse to the minor.
Where a minor has a guardian appointed which is declared by competent authority, no other
person other than such guardian as has been appointed shall act as the next friend of the
minor or be appointed his guardian for the suit unless the court considers.
A minor, for the immediate purposes of civil litigation in India, has been clearly defined to
mean a person who has not attained the majority under the provisions of the Indian Majority
Act, 1875, that is a person who has not yet completed the age of eighteen years and in the
case of a minor in relation to person or property a guardian has been appointed by a court, or
whose property is under a court of ward s, a person who has not attained the age of 21 years1.
Explanation 1 to R. 1 of O. 32 clearly lays down that in this Order “minor” means a person
who has not attained his majority within the meaning of S. 3 of the Indian Majority Act,
1875, where the suit related to a minor relates to any of the matters mentioned in clauses. (a)
and (b) of S. 2 of that Act or to any other matters.

According to Clauses (a) and (b) of Section 2 of the Indian Majority Act, 1875, it is laid
down that nothing contained shall affect—(a) the capacity of any person to act in the
following matters, (namely),—marriage, dower, divorce and adoption; (b) the religion or
religious rites and usages of any class of citizens of India.
1
S. 3 of the Indian MajorilY Act, 1875.

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Procedure for suits by a minor:
As laid down in CPC,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 is
supposed to 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 to be 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 such
suit was presented. [O. 32, R. 2].

Where a suit which has already 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 the
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 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 in a suit is a minor, the court, after 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 who has been appointed as a guardian for the suit which has been instituted 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). In case, where the
interest of the next friend is adverse to that of the minor or in case where he is connected with
a defendant whose interest is adverse to that of the minor in a suit, or where he does not do
his duty or, during the pendency of the suit, he ceases to reside within India, or on account of
any other sufficient cause, the court may, on an application made on behalf of the minor,
order the next friend to be removed.

In cases of retirement, removal or death of the next friend of a minor, or further proceedings
are stayed until the appointment of a next friend in his place. In a similar way, a guardian

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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.

In Ganga Prasad Chowdhry v. Umbica Churu Coondoos 2, 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 Dasscc." 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 Nathumal v. Mohd. Nazir Beg3, it was held that where not only the service of the notice
on the proposed guardian was defective but no order was made by the court, an effective
decree could not be passed against the minor. A decree passed against the minor in these

2
XIV I.L.R. Cal. 754
3
A.J.R. 1955 All. 584

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circumstances is null and void. Where, however, a guardian has been recognised by the court
and the minor has been effectively represented, the fact that the court did not make a formal
order appointing the guardian or there was some minor defect in the procedure in appointing
him will not 'invalidate the proceedings unless this has prejudiced the minor's case. In
Walian v, Banke Behar4i, 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 f01 mal orc'er 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
prejud iced the minors.

1. Rule 4 states that the following rules for a person to act as guardian or next friend for
a minor-

1. Any person who is of sound mind and has attained majority.

2. Provided such person does not have any interest adverse to that of the minor as
regards the subject matter of the suit
3. Provided that where he is the next friend, he is not the defendant in the suit
and where he is the guardian, he is not the plaintiff in the suit.
4. Where any person is appointed by a competent authority as such next friend or
guardian, no other person shall act as the minor’s next friend or guardian except
where the court is of the opinion that this is required for the welfare of the
minor
5. No person shall be appointed a next friend or guardian unless he consents to
the same in writing
6. Where there is no person is fit and willing to act as the guardian or next friend,
the court may appoint any of its officers to act in this regard.
7. Any costs incurred by such officer shall be payable by either of the parties or
from a fund of the court in which the minor is interested or from the estate of
the minor.
2. Rule 5 provides that an application may be made on behalf of a minor (except where
the application is made to appoint a new guardian/next friend where the pleader fails
to do so) only by his next friend or guardian.

3. Every order made in a suit or on any application which affects the minor in any way
and the minor is not represented by the pleader or next friend, the order shall be
discharged.

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(1902-1903) 30 tA. 182 (P.C,).

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 4. Further, where the pleader of the other party was aware of such minority, he shall
have to pay costs in such case.
5. A next friend or guardian cannot receive any money or movable property on behalf of
the minor where there is a compromise to that effect or a decree passed to that effect,
except with the leave of the court. (Rule 6)

6. Where the court grants leave as mentioned above but where the next friend or
guardian has not declared to be the guardian of the property of the minor by the
competent authority or where he has been so declared but he is under any disability
known to the court, the court may order him to pay security for the money or movable
property received by him.

7. Such security is taken to ensure that the property is protected from waste and there is
proper application of the same.

8. The court may however dispense with the requirement of granting security where the
next friend or guardian is (a) the manager of a HUF and the decree or order relates to
the business or property of the family or where (b) he is the parent of the minor.

9. Rule 7 provides that no compromise or agreement may be entered into on behalf of

the minor by the guardian or next friend without the leave of the court which must be
recorded in its proceedings.

10. An application for leave must be accompanied by an affidavit by the guardian or next
friend and where the minor is represented by a pleader, a certificate must be given by
the pleader stating that the compromise or agreement is for the benefit of the minor.

11. However, the court may still examine as to whether or not such compromise or
agreement is for the benefit of the minor.

12. Where the leave of the court is not taken, the agreement or compromise shall be
voidable at the option of the minor.

13. Thus, rules 6 and 7 have been enacted to ensure that the interests of the minor are
safeguarded by the court. It is to ensure that the guardian and next friend act in a
bonafide manner.

Suit against Minor and Guardian Ad Litem

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The principle is clear that minor cannot sue and cannot be sued. Therefore, it has been made
compulsory that minor plaintiff and defendant should be represented by proper and fit person
in some litigation. When some suit is to be instituted by minor plaintiff, such suit is instituted
in minor plaintiff’s name by his next friend. Similarly 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.

Relevant Provisions
Following are the relevant provisions regarding manner in which suit against minor can be
instituted.
Order 32 Rule 1, 3, 4 of Civil Procedure Code.

Object of having next Friend or Guardian Ad-Litem

A minor is deemed incapable of prosecuting or defending a suit himself, it is necessary that
his interest in the suit should be watched by an adult person. 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. 

Next Friend

“The person, who represents a minor plaintiff in a suit or proceeding, is called next friend of
the minor”.

Guardian Ad-Litem

Where the defendant is minor, that Court, on being satisfied by the fact of his minority, shall
appoint a proper person to be guardian for the suit for such minor.

Manner in which suit against Minor can be instituted 

A suit against minor can be instituted through his guardian appointed by the Court i.e
guardian ad-litem.

Mode of making appointment

The appointment of a guardian is made by the court either

a. Application by Plaintiff

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It is the duty of the plaintiff to apply for the appointment of minor defendant’s guardian.

i. List furnished by plaintiff

The plaintiff shall file with his plaint a list of relatives of minor and other person who can be
appointed as guardian and such list shall constitute an application by the plaintiff.

ii. Application by Defendant

A guardian may be appointed by the court where the defendant pleads minority. Where the
fact of minority is disputed it is the court who shall determine it. 

Verification by Affidavit

Any application whether it is made by plaintiff, or by defendant or a list furnished by plaintiff

must be supported by an affidavit, verifying the fact that the proposed guardian has no
interest in the suit adverse to that of a minor and that he is a fit person to be appointed.

Notice to the Guardian

Before appointing a guardian court must serve a notice to the minor as well as to the natural
guardian of the minor or father or guardian appointed by competent authority or person in
whose care the minor is as the case may be.

Person who can be appointed as Guardian

Following person can be appointed as guardian ad-litem of the minor.

a. Any mature and sound person

Generally any person of sound mind who has been of 18 years or above may be appointed as
a guardian.

Exceptions

i. A plaintiff cannot be appointed as a guardian of the minor.

ii. A person whose interest is adverse to that of minor cannot be appointed as guardian.

b. Guardian appointed by competent authority

where minor has guardian appointed or declared by competent authority than such person
shall act as guardian for the suit.
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Exception

Court may appoint any other person for reasons to be recorded if it considers that it in the
interest and welfare of minor.

c. Relative of the Minor

Where no guardian appointed by competent authority than the court may appoint a relative of
the minor as his guardian for the suit.

d. Co-defendant

Where minor has also co-defendants court shall appoint any of the co-defendants as his
guardian if no near relative of the minor is found.

e. Pleader of the Court

Any person or pleader of the court may be appointed as a guardian for the suit but he will be
appointed only, where there is no other person fit and willing to act as such.

Consent of the Guardian Appointed

Court cannot appoint any person as guardian without his consent and such consent may be
presumed by the court unless it is expressly refused.

CONCLUSION

To conclude, that according to law minor is a person, under legal disability he cannot sue and
be sued in his own name. A suit against minor can only be filed through his guardian
appointed by the court which is mandatory to be considered to be a party to the suit, unless he

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is represented by guardian party ad-litem and any decree obtained against minor defendant
guardian is nullity in the eye of law.

BIBLIOGRAPHY

1. Avtar Singh: Code of Civil Procedure, Central Law Publications, Allahabad.

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2. C. K. Thakker & M. C. Thakker: Civil Procedure with Limitation Act, 1963, Eastern Book
Company, Lucknow.

3. Dr. N. Maheshwara Swamy: Law Relating to Civil Procedure and Limitation, Asia Law
House, Hyderabad.

4. Himanshi Mittal: Law of Limitation, Universal Law Publishing Co Pvt. Ltd., New Delhi.

5. Justice P. S. Narayana: Code of Civil Procedure, 1908, Asia Law House, Hyderabad.

6. Prof. M. P. Jain: The Code of Civil Procedure (CPC), LexisNexis India, Gurgaon.

7. Shailender Malik: The Code of Civil Procedure (CPC) Universal Law Publishing Co Pvt.
Ltd., New Delhi.

8. Sukumar Ray: Textbook on the Code of Civil Procedure, Universal Law Publishing Co
Pvt. Ltd., New Delhi.

9. Vedula Venkata Ramana: V.J. Rao’s The Code of Civil Procedure, 1908, ALT
Publications, Hyderabad.

10. Vinay Kumar Gupta: Mulla-The Key to Indian Practice (A Summary of the Code of Civil
Procedure), LexisNexis India, Gurgaon.

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