REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  22969  OF 2017

Nagaiah and another     ..Appellants

Versus

Smt. Chowdamma (dead) By Lrs. and another ..Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. The judgment dated 08.01.2013 passed by the High Court

of Karnataka at Bangalore in Regular Second Appeal No. 1102 of 2004

is called in question in this appeal by the unsuccessful plaintiffs.

2. Brief facts leading to this appeal are: Original Suit No. 228

of 1989 was filed by the appellants herein (plaintiffs 1 and 2

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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 father­Kempaiah (defendant no.1 in

the suit/respondent no.2 herein) in favour of defendant

no.2/respondent  no.1­Chowdamma was  not  binding on their 2/3rd

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 second appellant­second plaintiff (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.2­  Chowdamma/purchaser  of the  property filed  Regular  Second

Appeal before the High Court of Karnataka at Bangalore.

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By the 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 the life­time of 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 none else.  

 It is 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.

4. Hence, the only  question to be decided  in this  appeal  is,

whether the first  plaintiff being the elder  brother  of  minor  second

plaintiff (at the time of filing of the suit) could have filed the suit on

behalf of the minor as his next friend/guardian.

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5. The High Court,  while  coming to the conclusion that  the

first plaintiff could not have acted as a guardian of the minor­ second

plaintiff, has relied upon Section 4(b) of the  Hindu  Minority and

Guardianship  Act (hereinafter called  as ‘Hindu  Guardianship  Act’).

Sub­Section (b) of Section 4 of the Hindu Guardianship Act reads as

under:

“(b) "guardian” means a person having the care of the person of a minor or of his property or of both his person and property, and includes—

(i) a natural guardian,

(ii) a guardian  appointed  by the  will of the  minor's father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of wards;”

As mentioned supra, the High Court has ruled that defendant no.1,

being  the father  of  minor plaintiff  no.2, is the  natural  guardian of

plaintiff no.2 and consequently plaintiff no.1 could not have acted as

the guardian in the suit on behalf of minor plaintiff, particularly when

he was not appointed as a guardian by any competent court of law.  In

our considered opinion, the High Court has totally misdirected itself

while concluding so.

6. There cannot be any dispute that the plaintiff no.1 did not

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and does not come within the meaning of a “Guardian” as specified in

sub­section (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  of the

Code of Civil Procedure (hereinafter referred to “Code”).  To decide the

present controversy it would be relevant to note the following

provisions as contained in Order XXXII,   Rules 1, 3, 6, 7, 9, 12, 13

and 14 of the Code (as amended in Karnataka State, since the matter

is from Karnataka State) :  

1. Minor to  sue by next friend.–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.  

18[Explanation: In this Order, “minor” means a person who has not attained his majority within the meaning of Section 3 of the Indian Majority Act, 1875 (9 of 1875), where the suit relates to any of the matters mentioned in clauses (a) and (b) of Section 2 of that Act or to any other matter.]

2. Where suit  is  instituted without next friend, plaint to be taken off the file.–  (1)  Where a suit is instituted by or  on behalf  of  a  minor without  a  next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.  

(2)  Notice  of such application  shall  be given  to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

3. Qualifications to be a next friend or guardian.— (1) Any person who is of sound mind and has attained

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majority may act as next  friend of  a minor or as his guardian for the suit:  

Provided that the interest of that person is not adverse to that of the minor and that he is not, in the case of next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff  

(2) Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.— Where a minor has a guardian appointed or declared by competent authority, no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person he permitted to act or oe appointed as the case may be.  

(3) Where the defendant is a minor, the Court on being satisfied of the fact of his  minority shall appoint a proper person to be guardian for the suit for the minor. A person appointed as guardian under this  sub­rule, shall, unless his appointment is terminated by retirement or removal by order of Court on application made for the purpose or by his death, continue throughout all proceedings in the suit or arising out of the suit including proceedings in any appeal or in revision and any proceedings in execution of a decree and the service of any process in any such proceeding on the said guardian if duly made shall be deemed to be good service for the purposes of such proceedings. (4) An order for the appointment of a guardian for the suit may be obtained upon an application in the name and on behalf of the  minor or by the plaintiff. The application where  it is  by the plaintiff  shall  whenever necessary set forth in the order of their suitability a list of persons who are competent and qualified to act as guardian for the suit for the minor defendant. (5) The application referred to in the last preceding sub­ rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest

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in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed. The affidavit shall further state according to the circumstances of each case particulars of any existing guardian appointed or declared by competent authority, the name and address of the person, if any, who is the de facto guardian of the minor, the names and addresses of persons, if any, who, in the event of either the natural  or the de  facto guardian or  the guardian appointed or declared by competent authority, not being permitted to act, are by reason of relationship or interest, or otherwise suitable persons to act as guardians for the minor for the suit. (6) An application for the appointment of a guardian for the suit of a  minor shall not be combined  with an application for bringing on record the legal representative of a deceased party. (7)  No order  shall  be made on any application under sub­rule (4) above except upon notice to the minor and also 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 natural guardian of the minor or where  there  is  no  father or natural guardian upon notice to the person in whose actual care the minor is and after hearing any objection which may be urged on behalf of any person so served with notice. The notice required by this sub­rule shall be served at least seven clear days before the day named in the notice for hearing of the application. (8)  Where none of the  persons mentioned  in  the last preceding sub­rule is  willing to act as guardian, the Court shall direct notice to other person or persons proposed for appointment as guardian either simultaneously to some or all of them or successively as it may consider convenient or desirable in the circumstances of the case. The Court shall appoint such person as it thinks proper from among those who have signified their consent  and intimate the fact of such appointment to the person appointed by registered post unless he is present at the time of appointment either in person or by pleader.

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(9) No person shall be appointed guardian for the suit without his consent and except in cases where an applicant himself prays for his appointment as guardian notices issued shall clearly require the party served to signify his consent or refusal to act as guardian. (10) Where the Court finds no person fit and willing to act as guardian for the suit the Court may appoint any of its officers or a pleader of the Court to be a guardian and may direct that costs to be incurred by that officer or pleader in the performance of his duties as guardian shall  be borne either by the parties or by any one or more of  the parties to the suit or out of  any  fund in Court in which the minor  is interested and may give direction for the repayment or allowance of the costs as justice and the circumstances of the case may require. (11) When a guardian for the suit as a minor defendant is appointed and it is made to appear to the Court that the guardian is not  in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby, the Court may from time to time order the plaintiff to advance moneys to the guardian for the purpose of his defence and all moneys so advanced shall form costs of the plaintiff in the suit. The order shall direct that the guardian as and when required by the Court shall file into Court the account of the moneys so received by him."­­

6. Receipt by next friend or guardian for the suit of property under decree for minor. – (1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either—  

(a) by way of compromise before decree or order, or  

(b) under a decree or order in favour of the  minor. (2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the  money or other movable property, the Court shall, if it grants him leave

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to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application:  

28[Provided that the Court may, for reasons to be recorded,  dispense  with such security  while granting leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order, where such next friend or guardian—  

(a) is the manager of a Hindu undivided family and the decree or order relates to the property or business of the family; or  

(b) is the parent of the minor.]

Provided that the Court may in its discretion dispense with the security in cases  where the next friend or guardian for the suit is a  manager  of a joint  Hindu family or the Karnavan of a Tharwad or the Ejaman of an Aliyasanthana  family  and  the  decree is  passed in favour of such joint family or Tharwad or the Aliyasanthanafamily as the case may be.

7.  Agreement or compromise by next friend or guardian for the suit.–(1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceeding, enter into any agreement or compromise on  behalf of a  minor  with reference to the suit in which he acts as next friend or guardian.  (2) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other similar action on behalf of a minor or other person under disability, the affidavit in support of the application shall set out the manner in which the proposed compromise, agreement or other action is likely to effect the interests of the minor or other person under the disability and the reason why such compromise, agreement or other action is expected to be for the benefit of the  minor or other person under

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disability, where in such a case the minor or the other person  under disability is represented  by counsel or pleader, the said counsel or pleader shall also file into Court  along with  the  application a  certificated  to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability. If the Court grants leave under sub­rule (1) of this Rule, the decree or order of the Court shall expressly recite the grant of the leave sought from the Court in  respect  of the compromise, agreement or other action as aforesaid after consideration of the affidavit and the certificate mentioned above and shall  also  set  out  either in the body of the decree itself or in a schedule annexed thereto the terms of the compromise or agreement or the particulars of other action. (3) Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.

9.  Removal of next friend.–(1)  Where the  interest of the next friend of a minor is adverse to that of the minor or  where he  is  so connected with a defendant  whose interest is adverse to that of the minor as to make it unlikely that the minor’s interest will be properly protected by him, or where he does not do his duty, or during the pendency of the suit, ceases to reside within India, or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause  assigned,  may  order the  next friend to  be removed accordingly, and make such other order as to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf, and an application is made by a 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 by it, that the guardian ought not to be appointed the next friend of the  minor,  and shall thereupon appoint the applicant to be next friend in his place upon such terms

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as to the costs already incurred in the suit as it thinks fit

12. Course to be followed by  minor plaintiff or applicant on attaining majority.– (1) A minor plaintiff or  a minor not a party to a suit  on whose behalf  an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.  

(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.  

(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:—

“A,B.,  late a minor, by C.D., his next friend, but now having attained majority”.  

(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.  

(5)  Any  application  under this rule  may  be  made  ex parte; but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.

13. Where minor co­plaintiff attaining majority desires to repudiate suit.–(1) Where a minor co­ plaintiff  on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co­ plaintiff; and the  Court, if it finds that  he is not a necessary party, shall dismiss  him from  the suit on such terms as to costs or otherwise as it thinks fit.  (2) Notice of the application shall be served on the next friend, on any co­plaintiff and on the defendant. (3) The costs of all parties of such application, and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs.  (4) Where the applicant is a necessary party to the Suit,

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the Court may direct him to be made a defendant.

14.  Unreasonable  or improper suit.–(1)  A  minor  on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that  it  was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.

14­A.  When a minor defendant attains majority either he or the guardian appointed for him in the suit or the plaintiff  may apply to the  Court to declare the said defendant a major and to discharge the guardian and notice thereof shall be given to such among them as are not applicants. When the Court by order declares the said defendant as  major it shall by the same order discharge the guardian and thereafter the suit shall be proceeded with against the said defendant as a major.

A bare reading of Order XXXII, Rule 1 of the Code 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 Sub­Section (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

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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 afore­said 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  the Code.   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 the suit is  filed

against a minor, it is obligatory for the plaintiff to get the appropriate

guardian ad litem appointed by the Court for such minor. A “guardian

ad litem”  is a special guardian appointed by a court in  which a

particular litigation is pending to represent a minor/infant, etc. in that

particular litigation and the status of guardian ad litem exists in that

specific litigation in which appointment occurs. Various High Courts

have also adopted this view. The Madras High Court in  Kaliammal,

minor by Guardian, Patta Goundan v. Ramaswamy Goundan, AIR

1949 Mad.  859  observed that there is  no need of  sanction of the

Court for a next friend to sue, if he is not incapacitated.  This was also

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the view taken by the High Court of Allahabad in K. Kumar v. Onkar

Nath, AIR 1972 All. 81.

7. The Kerala  High Court  upheld the  same  in no uncertain

terms in Gopalaswamy Gounder v. Ramaswamy Kounder, AIR 2006

Ker 138. In that case, the High Court observed that any person who

does not have any interest adverse to that of the minor can figure as

his next friend. It held as follows:

“Law  does  not contemplate the  appointment of a next friend for a minor who institutes a legal proceeding either  as a Plaintiff  or  as a Petitioner. The object of a minor being represented through a next friend is only for the purpose of enabling the opposite party to look upon the next friend for costs, if any, ordered against the minor…” ….      ….         …. Where the minor institutes a proceeding as a Plaintiff or applicant any person who does not have any interest adverse to that of the minor can figure as his next friend. The mere fact that the minor's mother Selvi was appointed as the guardian of the minor in execution proceedings  where the  minor was impleaded as an additional  Respondent,  will not disable Gopalaswamy Kounder from styling himself as the next friend of the  minor for the purpose of filing the petitions under Order 21, Rule 90 Code of Civil Procedure There was absolutely no necessity for the next friend to seek his appointment as the next friend nor was the court below  justified in  dismissing the  said  application. Even in a case where the proceedings are instituted by the minor through his next friend, the real Plaintiff  or applicant is the minor himself and not the next friend.”

8. Not only, is there no provision for appointment of next

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friend by the  Court, but the permission of the  Court is also not

necessary.  

However, even 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 the decree. For reference, see the cases of

Brij Kishore Lal v. Satnarain Lal &  Ors., AIR 1954 All. 599,

Anandram & Anr. v. Madholal & Ors. AIR 1960 Raj. 189

Rangammal v.  Minor  Appasami  &  Ors.  AIR  1973  Mad.12,

Chater Bhuj Goel v. Gurpreet Singh AIR 1983 Punjab 406 & Shri

Mohd. Yusuf and Ors. v. Shri Rafiquddin Siddiqui. ILR 1974 (1)

Delhi 825.  

In the 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.

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9.      “Guardian” as defined under the Hindu Guardianship Act is a

different concept from the concept of “next friend” or the “Guardian ad

litem”.   Representation by “next friend” of minor plaintiff or by

“guardian ad litem” of minor defendant is purely temporary, that too

for the purposes 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 guardian or the duly 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

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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

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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

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represent the plaintiff in a suit is limited only for the suit and after the

discharge  of that  guardian  ad  litem/next friend, the  right/ duty  of

guardian as defined under sub­section (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

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plaintiff  no.2 has not  made a  single  allegation against the  plaintiff

no.1/his next friend, after he attained majority.  

14. The minor­plaintiff  no.2 had attained majority within one year

from the date of filing of the suit. The suit, as afore­mentioned, was

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 open for the

High Court to non­suit the plaintiff no.2 for the afore­mentioned

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.

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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 a time­tested procedure  which is in place to protect the

interests of the minor in civil litigation. The only practical difference

between a “next  friend” and a “guardian  ad  litem” is 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 next friend and 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.

17. In view of the above discussion, we are of the opinion that

the impugned order relying upon the provisions of Hindu

Guardianship Act to non­suit the plaintiff no.2 is not justified.  Having

regard to the totality of  the facts and circumstances of the case,  it

would be just and proper if the matter is remitted to the High Court

for a fresh decision on merits in accordance with law.   Accordingly,

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this appeal is allowed to the aforesaid extent, the judgment of the High

Court is set aside and the matter is remitted to the High Court for a

fresh decision on merits, in accordance with law.   Needless to

mention, that we have not expressed any opinion on the merits of the

case.  There shall be no order as to costs.    

…………………………………J.          [Arun Mishra]

…………….……………………J. [Mohan M. Shantanagoudar]

New Delhi; January  08, 2018

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ITEM NO.1501               COURT NO.10               SECTION IV-A (For Judgment)

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal No(s).22969/2017

NAGAIAH  & ANR.                                    Appellant(s)

                               VERSUS

SMT. CHOWDAMMA (DEAD) BY LRS.  & ANR.              Respondent(s)

Date : 08-01-2018 This appeal was called on for pronouncement    of Judgment today.

For Appellant(s) Mr. Nikhil Majithia,Adv.                Mr. Yadav Narender Singh,AOR                     For Respondent(s) Mr. Nishanth Patil,Adv.

Mr. Prasanna Mohan,Adv. Mr. Anup Jain,AOR

Hon’ble  Mr.  Justice  Mohan  M.  Shantanagoudar

pronounced the Reportable Judgment of the Bench comprising

Hon’ble Mr. Justice Arun Mishra and His Lordship.

The appeal is allowed with no order as to costs in

terms  of  the  signed  Reportable  Judgment.   Pending

application, if any, stands disposed of.

     (Sarita Purohit)                  (Jagdish Chander)      Court master                     Branch Officer

(Signed Reportable Judgment is placed on the file)

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