Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure 1908 Hindu Guardianship Act Terms - ‘Next friend’ and ‘Guardian-ad-Litem’ |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Code of Civil Procedure, 1908 (5 of 1908) |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | 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 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. |
Judge | Hon'ble Mr. Justice Mohan M. Shantanagoudar |
Neutral Citation | 2018 INSC 6 |
Petitioner | Nagaiah And Another |
Respondent | Smt. Chowdamma (dead) By Lrs. And Another |
SCR | [2018] 1 S.C.R. 126 |
Judgement Date | 2018-01-08 |
Case Number | 22969 |
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