Suits By Or Against Minors

The present article, “Suits by or Against Minors and Persons of Unsound Mind: Order 32” will discuss Order 32 and all rules under the same, with reference to relevant case-law.

Order 32, Rules 1-16 provide for the appropriate procedures to be followed by minors who intend to institute a suit in civil court, by the use of a ‘next friend’ or a ‘guardian ad litem’ on behalf of a minor who has been made a defendant in any suit instituted by another person. The term ‘minor’ for the purposes of The Code of Civil Procedure, 1908 (‘CPC’; ‘the Code’) refers to one who has not attained the age of majority according to Section 3 of the Indian Majority Act, 1875. Order 32 also provides for persons of unsound mind to sue and be sued.

Introduction

A minor is generally, legally deemed to not be able to consider the consequences of his actions, and this implies that a minor may not enter into a contractual agreement, as per Section 10 of the Indian Contract Act, 1872– without being represented by a lawful guardian.[1] However, there may be a requirement for a minor to knock on the doors of a court of law to seek justice, in the case, for example, immovable property from his estate has been illegally transferred.

In order to provide for such situations, the Code contains within it a specific order entitled ‘Suits By or Against Minors and Persons of Unsound Mind’ also known as Order 32. Order 32 thus, has made provisions for the institution of suits by or against minors and persons of unsound mind with the intended objective of safeguarding the best interests of such persons.[2]

As mentioned above, Order 32, Rule 1 notes that minor refers to one who has not attained majority within the meaning of The Indian Majority Act, 1875– which implies that this Order applies to only those persons who are under the age of 18 years.[3] It is pertinent to note that a person may be a major in the eyes of personal law, but would still be seen as minor and the requirements of Order 32 would apply to such a person, in their institution of suits in civil courts- that is, they shall not sue without a next friend.[4]

These provisions of the Code which apply to minors, also apply to the case of persons adjudged to be of unsound mind- with the exception of the requirement of furnishing security, that minors are not required to do.[5]

Order 32: Suits By Or Against Minors And Persons Of Unsound Mind

1. Order 32, Rule 1: Minor to sue by next friend

This provision provides that every suit by a minor should be instituted in his name by a next friend.[6] The use of the term ‘shall’ implies that this is a mandatory requirement under the Code. The explanation further mentions that the term minor is to be understood as it is defined in the Indian Majority Act, 1875.[7]

2. Order 32, Rule 2: Where suit is instituted without next friend, plaint to be taken off the file

The requirements under Order 32, Rule 1 are mandatory and in case they are not followed- that is, where a suit is instituted by or on behalf of a minor without his next friend, the defendant in this suit may apply to have this plaint taken off the file- and the costs of this would be borne by the pleader or the person who presented the case.[8] Order 32, Sub-rule 2(2) provides that the notice of such application, as indicated in Order 32, Sub-rule 2(1), once provided to the person in question, the said person may present his objections to the application (if any), and the court has the discretion to “make such order as it thinks fit.”[9]

3. Order 32, Rule 2A: Security to be furnished by the next friend when so ordered

Where a suit has been instituted on behalf of the minor by his next friend, this provision provides that the Court has the discretion to order the next friend to give security for payment of all costs incurred or likely to be incurred by the defendant.[10] This order could be at any stage of the suit, and either on its own motion or on the application of any defendant in the suit. The reasons for such an order by court requiring the next friend of the minor plaintiff to furnish security is to be recorded.

Order 32, Sub-rule 2A(2) states that if such a suit has been instituted by an indigent person i.e. the next friend, then the security shall include the court fees payable to the government as well.

The term indigent here is as defined in Order 33, Rule 1 of the Code, and is as follows “When he is not possessed of sufficient means to enable him to pay the fee prescribed by the law for the plaint in the suit proposed to be instituted by him; or; Where no such fee is prescribed, when is not entitled to property worth rupees one thousand, other than the property exempt from attachment in execution of a decree and the subject-matter of the suit.”[11]

Lastly, Order 32, Sub-rule 2A(3) provides that the effect of the failure to furnish security, as stated in Order 25, Rule 2, shall also apply to a suit where the Court makes an order under this rule directing that security be furnished. Order 25 deals with ‘Security for Costs’ under the Code.

4. Order 32, Rule 3: Guardian for the suit to be appointed by the Court for a minor defendant

The court shall appoint a person as guardian also known as guardian ad litem, for the suit for a minor who is a defendant in a suit, after it has been satisfied with the minority of the individual.[12] An order for the appointment is to be accompanied by an affidavit that the guardian has no interest in the material matters in the suit and is a fit person to be so appointed.[13] Order for appointment of a guardian ad litem may also be obtained upon an application in the same name and on behalf of the minor.[14]

Under Order 32 Sub-rule 3(4), the order shall be made except upon notice 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 where there is no father, to the mother, or where there is no father or mother, to other natural guardians] of the minor, or, where there is [no father, mother or other natural guardians], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.[15]

Once appointed as a next friend under sub-rule 1 of this Rule, the guardian shall continue to function as such until his appointment is terminated by his retirement or removal or death- in proceedings in any Appellate or Revisional Courts, including the execution of any decree.[16] Critically, the provisions of Order 32, Rules 2-3 are mandatory.[17] A decree passed against a minor in a suit in which he is not represented by a guardian ad litem is a nullity and it cannot be enforced against him.[18]

5. Order 32, Rule 3A: Decree against minor not to be set aside unless prejudice has been caused to his interests

This provision holds that no decree passed against a minor defendant will be set aside on the mere ground that the next friend or guardian ad litem for the suit had an interest in the subject matter of the suit, adverse to that of the minor.[19] Sub-rule 3A(1) sets out the additional condition for such a decree to be set aside- that prejudice must have been caused to the interests of the minor by the impugned adverse interest held by the guardian or next friend.

Sub-rule 3A(2) allows for the minor to obtain available reliefs in law against any misconduct or gross negligence on the part of the guardian or next friend resulting in prejudice to the interests of the minor in the suit. Given as what is meant by the term “prejudice to interests of the minor” is not explicitly set out, the other provisions and the facts of the particular case would determine how this provision be interpreted by a civil court.

6. Order 32, Rule 4: Who may act as next friend or be appointed guardian for the suit

This provision sets out the qualifications for the appointment of a next friend or appointed guardian for the suit. Sub-rule 4(1) states that the next friend or minor should be a person of sound mind, who has attained majority. In addition to this, for the guardian ad litem, the additional condition is that he is not a plaintiff in the suit, and his interest is not adverse to that of the minor.[20]

Similarly, for the next friend, the additional condition is that he is not a defendant in the suit, and his interest is not adverse to that of the minor.[21] However, no person may be appointed as guardian for the suit without his consent in writing.[22]

Where a minor has had a guardian ad litem or next friend appointed or declared by a competent authority, he is the only person who shall act as the next friend or be appointed guardian for the suit- unless, in the consideration of the court, another person should be appointed for the welfare of the minor.[23] In case no other person is fit or willing to act as guardian for the suit, the court has the discretion to appoint one of its officers as the minor’s guardian.[24]

7. Order 32, Rule 5: Representation of minor by next friend or guardian for the suit

Every application to the court on behalf of the minor shall be made by the next friend or the guardian barring an application for a stay of proceedings on the removal of a next friend or guardian under Sub-rule 10(2) of the Order.[25] In fact, any other order made in a suit or application before the court or by which a minor is affected or concerned without the representation of the minor by the next friend or guardian for the suit may be discharged.

Where the pleader of the party at whose behest such order was obtained was aware of the minority of the minor plaintiff, or reason may be aware of the facts of minority- would pay such costs as the court would determine. [26]

8. Order 32, Rule 6: Receipt by next friend or guardian for the suit of property under the decree for minor

This provision seeks to protect the estate and suit property of the minor as it stipulates that the next friend or guardian for the suit shall not receive any monies or movable property on behalf of the minor without the leave of the Court.[27] This could be either-[28]

1. By way of compromise before decree or order, or
2. Under decree or order in favor of the minor.

However, in case the next friend or guardian has been appointed or declared by a competent authority and is under a disability due to which he may not refuse the receipt of any monies of movable properties, the court shall allow him to receive such monies or properties. However, this leave from the court is accompanied by requirements upon the guardian or next friend to furnish security for the same, and such other directions by the court to sufficiently protect the properties from wastage and prepare its proper application.[29]

The court may dispense with the requirement of security in a certain situation, after recording reasons for the same, in the case where the next friend or guardian is:[30]

1. the manager of a Hindu undivided family (HUF) and the decree or order related to the property or business of the family or
2. the parent of the minor.

9. Order 32, Rule 7: Agreement or compromise by next friend or guardian for the suit

Making the decision to enter into a compromise decree with the opposite party is a decisive step in the life of a civil suit and Rule 7 cautions against any compromise being entered into by the next friend or guardian for the suit without the express leave of the court.[31] Such a compromise is valid only if it has been expressly recorded in the court proceedings, and any compromise entered into without such leave of court is voidable at the option of the minor.[32]

This rule functions as an imperative to safeguard the interests of the minor and applies even if the next friend or guardian be the father of the minor and the manager of a joint Hindu family of which the minor is a member.[33] In a particular case, there was an undivided Hindu family formed in the mid-1800s, and in 1881 there was a dissolution of such joint family and a partial division of the family property. A sizeable portion of the assets was left in the control of Tuljaram, the first defendant. Rajaram was the second defendant, and both Tuljaram and Rajaram were sons of Venkata Row.

In 1886, a suit was brought against Tuljaram by one Atmaram, the grandson of Venkata Row, for ascertaining the remaining family assets, partition inter alia other reliefs. The plaintiff in the present case was the son of Rajaram, Ganesh Row, a direct descendant of Venkata Row. Ganesh Row, the first plaintiff, was a minor, and a compromise agreement had been entered into between Rajaram and Tuljaram (the two defendants in the present case), where Rajaram’s agreement affected the interests of his minor son. The final holding of the Bombay High Court, in this case, was that:

“…But they consider it to be clear that when he himself is the next friend or guardian of the minor his powers are controlled by the provisions of the law and he cannot do any act in his capacity of father or managing member which he is debarred from doing as of next friend or guardian without leave of the Court.”[34]

10. Order 32, Rule 8-10: Retirement of next friend

Order 32, Rule 8 deals with ‘Retirement of next friend’ while Rule 9 deals with ‘Removal of next friend’. A related rule is Rule 10 which is concerned with ‘Stay of proceedings on removal etc., of next friend’ The interruption in the performance of the duty of a next friend of a plaintiff minor is not ideal and these rules provide the procedures to be followed for such exigent situations.

Rule 8 states that unless ordered by the court, the next friend shall not retire without appointing a fit successor.[35] The application for appointment of the successor to the retiring next friend shall be accompanied by an affidavit showing fitness of the same and his lack of adverse interest to that of the plaintiff minor.[36] Rule 9 provides for the removal of the next friend.

The conditions for such removal are

• when the interests of the next friend become adverse to that of the minor or
• he becomes associated with a defendant in a way that compromises his ability to protect the interest of the minor; or
• when he does not due to his duty; or
• he stops residing in India during the pendency of the suit;
• or sufficient cause

In such a case, the court may on the application on behalf of the minor or by the defendant, remove the next friend and make such orders as it thinks fit.[37] In case a guardian appointed or declared by a competent authority wishes to replace the next friend who is not so appointed, the court may replace the existing next friend for reasons it shall record and make orders to that effect.[38]

Rule 10 provides that in case of retirement, removal, or death of the guardian, there shall be a stay on further proceedings until the appointment of the successor to the former next friend.[39] In case the current next friend neglects within a reasonable time to propose a successor, any person so interested in being guardian to the plaintiff minor can apply to the court, which may appoint the same if it sees fit.[40]

11. Order 32, Rule 11: Retirement, removal, or death of guardian for the suit

As indicated in Order 32, Rule 3(5), in the case where the guardian wishes to retire or does not do his duty or there is some sufficient ground that the court considers is sufficient to order the retirement or removal of the guardian, it may do so.[41] In such a case of the death or retirement or removal of the guardian during the pendency of the suit, the court is mandatorily required to appoint a new guardian for the minor.[42]

12. Order 32, Rule 12: Course to be followed by a minor plaintiff or applicant on attaining majority

A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending, on reaching majority must elect whether he will proceed with the suit[43] and where he elects to proceed, he must apply for an order discharging his friend and for leave to proceed in his own name.[44] Thereafter the title of the suit shall also be corrected, to “A.B., late a minor by C.D., his next friend, but now having attained majority.”[45]

However, before the passing of any such order, notice must also be issued to the next friend.[46] In case the former minor plaintiff elects to abandon the suit or application he shall apply for an order to dismiss said suit or application on repayment of costs incurred by the defendant or opposite party or that which may have been paid by his next friend.[47] If he does not move in the matter, he shall be deemed to have adopted the proceedings and will be bound by the result of the litigation, as was laid down in Rajender Kumar v. Sanatan Dharam Mahabir Dal.[48]

13. Order 32, Rule 13: Where minor co-plaintiff attaining, a majority desires to repudiate

This provision states that where a minor being co-plaintiff desires to repudiate the suit, he is mandatorily required to make an application to have his name struck out and the court shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.[49] The applicant might be directed by the court to be made a defendant to the suit if the applicant is a necessary party to the suit.[50] The notice must be served upon the next friend if any and on the defendant. Further, the costs of all parties of such application and of all or any proceedings shall be paid by those persons directed to do so by the court.[51]

14. Order 32, Rule 14: Unreasonable or improper suit

According to this provision, a minor, is the sole plaintiff in a suit, has the discretion to apply such that the suit instituted in his name by the next friend is dismissed on the ground that it was unreasonable or improper.[52] Notice of such application must be served on all concerned parties and the court must be satisfied as to the unreasonableness or impropriety to grant the application and order the next friend to pay the costs of all parties or any other order as it thinks fit.[53]

15. Order 32, Rule 15: Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind

The present order functions to provide protection not only to minor persons but also to persons of unsound mind. Rule 15 states that all the protections and safeguards provided in Order 32 in Rules 1 to 14 such as the appointment of a guardian by the court in case of a minor defendant, or the prohibition to not sue for a minor plaintiff without a next friend, are all applicable for persons who have been adjudged to be of unsound mind before or during the pendency of the suit.[54]

The provision also applies to those persons who have not been adjudged to be of unsound mind but have been found to be incapable due to mental infirmity by the court on inquiry.[55] The only exceptional rule here is Rule 2A, which is the requirement for security to be furnished by the next friend when so ordered by the court.

The faculties of persons of unsound mind require adjudication, and this was a material issue in the case of Tirtha Pradhan v. Balabhadra Pradhan[56] wherein the petitioners as plaintiffs had instituted a suit in the trial court against Balabhadra Pradhan, a man of 90 years of age for partition of certain joint family property. One of the defendants had filed a petition to allow him to act as guardian and next friend of the old person, alleging that his advanced age made him mentally infirm.

Accordingly, a medical specialist at a sub-divisional office was consulted and in his medical report, he advised that the old person have a guardian to look after his interests. The trial court relying on the medical report held that the old person was unfit and required a guardian to protect his interests in the litigation. However, the petitioners filed a revision petition in the Orrisa High Court aggrieved at the holding of the trial court.

Finally, the Orissa High Court found that the appointment of a guardian on grounds of his mental infirmity, solely on the ground of medical certificate issued by a sub-divisional medical officer without even examining the officer on oath and without making any other inquiry: thus, such appointment was held improper and illegal. Hence, courts must be cautious as to granting such responsibility to unscrupulous individuals without making the proper inquiries.

16. Order 32, Rule 16: Savings

This provision holds that this order shall not apply to the ruler of a foreign nation-state suing or being sued in the name of his state or being sued by the direction of the central government in the name of an agent or in any other name.[57] Ostensibly, this provision would pertain to the former Indian princely states and legal matters arising thereto from heirs of the same.

Further, the provision states that nothing in this order would be construed as affecting or derogating (contradicting) provisions of the local law being in force relating to suits by or against minors or by against lunatics or other persons of unsound mind.[58]

Conclusion

The present article has discussed in detail the various rules under Order 32 of the Code, that deal with suits by or against minors and persons of unsound mind.

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[1] Section 10, Indian Contract Act, 1872.

[2] D.F Mulla, The Key to Indian Practice: Summary of the Civil Procedure Code, 11^th ed., 2016.

[3] Explanation to Order 32, Rule 1, Code of Civil Procedure, 1908.

[4] Order 32, Rule 1, Code of Civil Procedure, 1908.

[5] Supra, at note 2.

[6] Supra, at note 4.

[7] Supra, at note 3.

[8]Order 32, Rule 2(1), Code of Civil Procedure, 1908.

[9] Order 32, Rule 2(2), Code of Civil Procedure, 1908.

[10] Order 32, Rule 2A(1), Order 32, Code of Civil Procedure, 1908.

[11] Supra, at note 4.

[12] Order 32, Rule 3(1), Code of Civil Procedure, 1908.

[13] Order 32, Rule(s) 3(2)-(3), Code of Civil Procedure, 1908.

[14] Supra, at note 2.

[15] Order 32, Rule 3(4), Code of Civil Procedure, 1908.

[16] Order 32, Rule 3(5), Code of Civil Procedure, 1908.

[17] Ghulam Rasool v. Ghulam Hassan Reshi, AIR 2003 J&K 6.

[18] Supra, at note 2.

[19] Order 32, Rule 3A(1), Code of Civil Procedure, 1908.

[20] Order 32, Proviso to Rule 4(1), Code of Civil Procedure, 1908.

[21] Ibid.

[22] Order 32, Rule 4(3), Code of Civil Procedure, 1908.

[23] Order 32, Rule 4(2), Code of Civil Procedure, 1908.

[24] Order 32, Rule 4(4), Code of Civil Procedure, 1908.

[25] Order 32, Rule 5(1), Code of Civil Procedure, 1908.

[26] Order 32, Rule 5(2), Code of Civil Procedure, 1908.

[27] Order 32, Rule 6(1), Code of Civil Procedure, 1908.

[28] Order 32, Rule 6(1) (a)-(b), Code of Civil Procedure, 1908.

[29] Order 32, Rule 6(2), Code of Civil Procedure, 1908.

[30] Order 32, Proviso to Rule 6(2), Code of Civil Procedure, 1908.

[31] Order 32, Rule 7(1), Code of Civil Procedure, 1908.

[32] Order 32, Rule 7(2), Code of Civil Procedure, 1908.

[33] Ganesha Row v. Tuljaram (1913) 40 IA 1.

[34] Ibid.

[35] Order 32, Rule 8(1), Code of Civil Procedure, 1908.

[36] Order 32, Rule 8(2), Code of Civil Procedure, 1908.

[37] Order 32, Rule 9(1), Code of Civil Procedure, 1908.

[38] Order 32, Rule 9(2), Code of Civil Procedure, 1908.

[39] Order 32, Rule 10(1), Code of Civil Procedure, 1908.

[40] Order 32, Rule 10(2), Code of Civil Procedure, 1908.

[41] Order 32, Rule 11(1), Code of Civil Procedure, 1908.

[42] Order 32, Rule 11(2), Code of Civil Procedure, 1908

[43] Order 32, Rule 12 (1), Code of Civil Procedure, 1908.

[44] Order 32, Rule 12 (2), Code of Civil Procedure, 1908.

[45] Order 32, Rule 12 (3), Code of Civil Procedure, 1908.

[46] Order 32, Rule 12 (5), Code of Civil Procedure, 1908.

[47] Order 32, Rule 12 (4), Code of Civil Procedure, 1908.

[48](1999) ILR I P&H 362.

[49] Order 32, Rule 13 (1), Code of Civil Procedure, 1908.

[50] Order 32, Rule 13 (4), Code of Civil Procedure, 1908.

[51] Order 32, Rule 13 (3), Code of Civil Procedure, 1908.

[52] Order 32, Rule 14(1), Code of Civil Procedure, 1908.

[53] Order 32, Rule 14(2), Code of Civil Procedure, 1908.

[54] Order 32, Rule 15, Code of Civil Procedure, 1908.

[55] Ibid.

[56] AIR 1993 Ori 50.

[57] Order 32, Rule 16(1), Code of Civil Procedure, 1908.

[58] Order 32, Rule 16(2), Code of Civil Procedure, 1908.

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