Case: Nagaiah &amp; Others Vs. Chowdamma (dead) By Lrs. &amp; Another

2. Brief facts leading to this appeal are: Original Suit No. 228 of 1989 was filed by the appellants herein (plaintiffs 1 and 2 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 herein) and that they are entitled to 2/3rd share in the said property; that the sale deed executed by the(defendant no.1 in the suit/respondent no.2 herein) in favour of defendant no.2/respondentwas not binding on their 2/3 rd 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 secondplaintiff (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.2Chowdamma/purchaser of the property filed Regular Second Appeal before the High Court of Karnataka atthe 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 theof 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 noneis 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.

Reasoning:
6. There cannot be any dispute that the plaintiff no.1 did not and does not come within the meaning of aas specified inNot only, is there no provision for appointment of next friend by the Court, but the permission of the Court is also noteven 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 thethe 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. 2.9.as defined under the Hindu Guardianship Act is a different concept from the concept ofor theRepresentation byof minor plaintiff or byof minor defendant is purely temporary, that tooes 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 guardianly 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 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 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 ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited onlythe suit andafter the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under(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 plaintiff no.2 has not made a single allegation against the plaintiff no.1/his next friend, after he attained majority.14. Theno.2 had attained majority within one year from the date of filing of the suit. The suit, aswas 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 openthe High Courtt the plaintiff no.2ed 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.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 aprocedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between and ais 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 nextd 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.