NAGAIAH AND ANOTHER versus SMT. CHOWDAMMA (DEAD) BY LRS. AND ANOTHER

Citation: [2018] 1 S.C.R. 126 · Decided: 08-01-2018 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 1 S.C.R.
                             NAGAIAH AND ANOTHER
v.
      SMT. CHOWDAMMA (DEAD) BY LRS. AND ANOTHER
(Civil Appeal No. 22969 of  2017)
JANUARY 08, 2018
[ARUN MISHRA AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Code of Civil Procedure, 1908:
Or. XXXII, rr.1,3,6,7,9,12,13 and 14 – Suit by plaintiff No.1
on his as well as on behalf of his minor brother (Plaintiff No.2) –
Against their father (defendant No.1) – Seeking declaration that
they were entitled to 2/3rd share in the property and sale deed
executed by their father (defendant No.1) in favour of defendant
No.2 was not binding on their 2/3rd share – Trial court dismissed
the suit on merit – First appellate court decreed the suit – High
court, in second appeal, dismissed the suit on the ground that
plaintiff No.1 could not act as the guardian of plaintiff No.2 during
the life-time of their father i.e. defendant No.1 (the natural guardian
of plaintiff No.2) without permission of the court – On appeal, held:
Plaintiff No.1 does not come within meaning of ‘guardian’ as
specified in sub-section (b) of s.4 of Hindu Guardianship Act –
Present case is governed by Or. XXXII of CPC – A suit by a minor
can be filed by the ‘next friend’ of the minor and no permission is
necessary for the ‘next friend’ to institute the suit – But if suit is
filed against the minor, it is obligatory for the plaintiff to get the
appropriate ‘guardian ad litem’ appointed by the Court – A decree
cannot be set aise even where formalities for appointment of a
guardian ad litem have not been observed, if no prejudice is caused
to the minor defendant – In the present case ‘next friend’ was
competent to represent the minor – Further no prejudice was caused
to the minor plaintiff – If the natural guardian has adverse interest
against minor, he cannot represent the minor in a law suit – The
interest of natural guardian, in the present case was adverse to the
minor plaintiff – Rules 12, 13 and 14 also empowers the minor on
attaining majority, either to proceed with or to abandon the suit –
The minor plaintiff in present suit continued the suit after attaining
majority – Principles arising out of Guardian and Wards Act, 1890
[2018] 1 S.C.R. 126
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and Hindu Guardianship Act, may not be apposite to the ‘next friend’
appointed u/Or. XXXII CPC – Therefore, impugned order relying
upon provisions of Hindu Guardianship Act to non-suit plaintiff
No.2 is not justified – Matter remitted to High Court for fresh
decision on merit – Hindu Guardianship Act, 1956 – s.4(b) –
Guardians and Wards Act, 1890.
Or.XXXII, rr.1 and 3 - ‘Next friend’ and ‘Guardian-ad-Litem’
– Distinction between – Discussed – Hindu Guardianship Act, 1956.
Allowing the appeal and remitting the matter to High Court,
the Court
HELD:  1. Plaintiff no.1 did not and does not come within
the meaning of a “Guardian” as specified in sub-section (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 CPC. [Para 6][183-D-
E]
2. A bare reading of Order XXXII, Rule 1 of CPC 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 Sub-Section (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 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
afore-said 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 CPC.  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
NAGAIAH 

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