Hemant Singh v. Dushyant Singh

Mahendra Bhushan, J.:— This is a Civil Revision in Original Suit No. 14/78 of the Court of Additional District Judge, No. 1, Dholpur. It is directed against the order of the Additional District Judge dated 27.9.79 allowing the application of the next friend of the minor plaintiff under Order 32. rule 2, C.P.C

2. Dushyant Singh (O.P.1) minor son of the petitioner Shri Hemant Singh, filed a suit for partition against the petitioner, and opposite parties 2 and 3, his mother and grand-mother respectively, in the Court of Additional District Judge, Dholpur on September 7, 1978 through Smt. Vijaya Raje Sindhiya ex-Maharani of Gwalior State as next friend. Along with the suit, an application under Order 32. rule 2, read with Section 151, C.P.C was filed for appointing the next friend Vijaya Raje Sindhiya as interim guardian for the disposal of the suit. The application was opposed, but the learned trial Court under the impugned order allowed the same. The petitioner is the natural son of Shri Pratap Singh ex-Maharaja of Nawa and Smt. Urmila Devi. Urmila Devi is the daughter of late Maharaja Shri Udaibhan Singh of Dholpur and Maharani Malvendra Kaur (O.P 3) is her natural mother being the widow of late Shri Udaibhan Singh. The petitioner is the adopted son of late Shri Udaibhan Singh, and his succession to the Gaddi of the former Dholpur State was recognised by the President of India. Vasundhara Raje (O.P 2) is the daughter of Smt. Vijaya Raje Sindhiya of Gwalior and she is married to the petitioner. Out of the wedlock, on 11.9.1973 Dusyant Singh non-petitioner (1) was born. As averred in the plaint, the petitioner is living at Delhi away from his wife and Shri Dusyant Singh his minor son, since the year 1974 and Smt. Vasundhara Raje, the wife of the petitioner, is living in the City Palace, Dholpur, whereas the minor son Shri Dusyant Singh is living under the care and under the custody of Smt. Vijaya Raje Sindhiya. An application under Section 12(1)(a) of the Hindu Marriage Act, 1955 was filed by the petitioner against his wife (OP 2) for declaring the marriage as a nullity in the Court of District Judge, Bharatpur. That application was later on withdrawn by the petitioner. As already stated earlier, a suit was filed by minor Dusyant Singh through his next friend Smt. Vijaya Raje Sindhiya, maternal grandmother, against the petitioner and others. It was stated in the plaint, that the plaintiff and the defendants are members of Hindu Undivided Family, and the entire property, moveable and immovable, is joint property of the Hindu Undivided Family, and the minor being a coparcener is entitled to a partition. The grounds seaking partition were that the allegations levelled against the mother of the minor in the petition under Section 12 of the Hindu Marriage Act amount to cruelty against the mother of the minor, and the petitioner has neglected to maintain the minor and his mother; that the petitioner is alienating the property of the Joint Hindu Family with the sole aim of depriving the minor of his share in the property; that the petitioner has removed valuable antiques from City Palace, Dholpur to Delhi and some of that property has also been sold; that the petitioner has deserted the minor and his mother for ever.

3. The main contention of the learned Advocate for the petitioner is that unless the Court is satisfied that the suit filed on behalf of the minor by his next friend is in his interest and for his benefit, the suit cannot be allowed to proceed. According to the learned Advocate for the petitioner, in order to wrack vengeance on the petitioner, his mother-in-law Smt. Vijaya Raje Sindhiya ex-Maharani of Gwalior has filed the suit for the minor. The property, according to the learned Advocate, is impartible and is governed by the rule of primogenitors, and after the petitioner the entire property will devolve on his minor son Dusyan Singh by survivership. Therefore, the suit claiming only ⅓rd share, when the minor will get the entire property, cannot be said to be in the interest and for the benefit of the minor It is also contended by the learned Advocate for the petitioner that as and when a suit by the minor through the next friend is filed, and the defendants say that the suit by the next friend is not in the interest and for the benefit of the minor, the Court should frame a preliminary issue on that controversy and should enquire into the matter and decide it. It is further submitted that the conduct of the next friend in the instant case in such that property worth about 30 lacs of rupees was stolen away and was removed from Dholpur, and, therefore, also the filing of the suit for partition is not in the interest of the minor, Lastly, it is contended that an application for appointment of the petitioner as guardian of minor Dusyant Singh is pending in Delhi Courts, and in case the petitioner is appointed as guardian of the person and property of the minor by that Court, then the petitioner will have to be substituted in place of the next friend, and, therefore, the learned trial Court should not have allowed Smt. Vijaya Raje Sindhiya to sue as next friend of the minor Mr. Banarjee, the learned Advocate for opposite-party (1), on the other hand, contends that to permit a next friend to represent the minor in the suit, it is not at all necessary that an enquiry should be made by the Court. According to him, the trial Court had the discretion to permit the next friend to represent the minor in the suit, and if that discretion has been exercised, it is hardly a matter of interference in revisional jurisdiction by this Court, more so when there is prima facie material on record on which it cannot be said that the suit by the minor through the next friend is not in the interest of the minor.

4. I have considered the rival contention and have gone through the relevant provisions of law and the authorities cited at the bar reference to which shall be made as and when necessary. To my mind, permission of the Court to represent the minor in the suit as next friend does not appear to be necessary. Under rule 1 of Order 32, C.P.C every suit by a minor has to be instituted in his name by a person, who in such shall be called the next friend of the minor. Any suit instituted by or on behalf of a minor without a next friend can be taken off the file on the application of the defendant under rule 2 of Order 32, C.P.C and costs may be ordered to be paid by the pleader or other person by whom the plaint was presented. This can only be done after notice to the pleader or such other person. Under rule 2(A) of Order 32, C.P.C the Court has powers to order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant. Rule 3 of Order 32, C.P.C deals with the appointment by court of a guardian ad litem for the suit for a minor defendant. Under rule 4 of Order 32, C.P.C any person can be the next friend or guardian of a minor, as the case may be, provided he is not of unsound mind, is himself not a minor, his interest is not adverse to that of the minor, and he is not a defendant in case of next friend or a plaintiff in case of guardian ad litem. An application in the suit on behalf of the minor has to be made by his next friend or his guardian for the suit, as the case may be under rule 5 of Order 32, C.P.C The next friend cannot retire unless otherwise ordered by the Court without first procuring a fit person to be put in his place and give the security for the costs already incurred. Any such application for retiremient of the next friend has to be supported by an affidavit, as required under the law. A next friend under rule 9(1) of Order 32, C.P.C of a minor can be removed either suo Page: 507motu by the Couurt or on the application of the minor or the defendant, if the Court is satisfied that his interest 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 take it unlikely that the minor's interest will be protected by him, or where he does not do his duty during the pendency of the suit. In case the next friend is not a guardian appointed or declared by a competent authority, and an application is made; by a guardian so appointed or declared to be appointed in place of the next friend, the Court has to remove the next friend unless it considers, for reasons to be recorded by it, that the guardian so appointed or declared ought not to be appointed a next friend of the minor. In case the next friend of the minor retires, is removed or dies, further proceedings in the suit have to be stayed by the Court under rule 10 of Order 32, C.P.C until such time as some other person is appointed as next friend. Similar provisions are contained for guardian ad litem in rule 11 of Order 32, C.P.C

5. It will, therefore, be clear that the basic difference “in a next friend” and “guardian ad litem” is that whereas the former automatically constitutes himself by taking steps in the suit, and no permission of the Court is necessary to represent a minor as a next friend, the latter is constituted by an order of the Court. (See Amar Chand Minor) through Mst. Kauli v. Ram Chand (1), K. Kumar v. Onkar Nath (2) and Kaliamal, minor by guardian Goundan v. Ramaswami Goundan (3). In Kaliamal's case (supra) it has been observed, “A perusal of the provisions of Order 32, r. 3, clauses 1 and 2 would have convinced the learned District Munsif that the competence of a next friend of a minor instituting a spit could not be the subject matter of investigation either at the stage of granting leave to sue in forms pauperis or for the matter of that at any other stage of the suit. The next friend as such does not need to ask for sanction of the Court to recognise him as the next friend of the minor if he is not incapacitated in any of the word indicated in Order 32, rule 3(1), C.P.C The next friend has a right to institutes a suit and maintain that suit on behalf of the minor.” In Gopal Jow v. Baldeo Narain Singh (4), though it was a case of deity, which sued through a next friend, but it was observed. Order 32 and the rules of this Code contemplate the appointment of a guardianad-litem of a defendant under particular disabilities, but do not contemplate the appointment by the Court of a next friend when such a person is the plaintiff except on the death or removal of the next friend, who had already filed a suit.

6. The next case to be referred is Krayani Amma v. Bhaskaran Pallai (5). It has been held that a person who has no interest at all in the benefit of the minor, and who has been put forward by another person for achieving his own object is not entitled to act as a next friend of the minors and maintain a suit in the name of the minors. In that case, an issue (1) was framed, whether the next friend was competent to institute the suit as next friend of the minor plaintiffs, and after trial it was held that the suit was not in the interest of the minor. It was also observed that rule 4(1) of Order 32, C.P.C contains only an enabling provision, unsound mind, not attaining of majority and adverse interest are disqualifications, which prevent a person from acting as next friend of a minor. Absence of these disqualifications does not give him the right to act, but it only qualifies him to act. Whether a person can be permitted to act as next friend of a minor is a matter to be decided by the Court, and the decision must depend upon the sole question whether it is a bonafide action instituted for the benefit of the minor.

7. In Mandli Prasad Ramcharanlal v. Ramcharanlal (6), it has been held that it is the settled practice of a Court not to decree a suit for partition filed on behalf of the minor plaintiff unless the Court is satisfied that the partition is for his benefit. It has further been held that in deciding whether partition is in the interest and for the benefit of the minor, a Court is not extracted to considerations purely personal to the minor, but may take into consideration matters Page: 508concerning his mother, or his wife or his daughter in whom he may be interested. The power which the Court exercises in decreeing or refusing partition at the instance of a minor plaintiff is not in denial but in protection of his right which he undoubtedly has to separate from the joint family, if it is in his interest and for his benefit.

8. In Kakumanu Pedasubhayya & Another v. Kakumanu Akkamma & Another (7), their lordships observed:

“Now, the theory is that the Sovereign as parens patrise has the power, and is indeed under a duty to protect the interests of minors, and that function has devolved on the Courts. In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious. In Halsbury's Laws of England, Vol. XXI, page 216, para 478, it is stated as follows—

It is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu Law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a Court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action.”

9. It can, therefore, be said that any person can be a next friend of a minor plaintiff or guardianad-litem of a defendant, if he is not of unsound mind, is himself not a minor, his interest is not adverse to that of the minor and he is not a defendant in the case of next friend or a plaintiff in the case of a guardian. No permission of the Court to represent the minor as a friend under Order 32, rule 1, C.P.C is necessary, but the Court has a special inherent jurisdiction, derived from Crown as parens patrise to protect the interests of the minors. In exercise of that special inherent jurisdiction in a proper case, if the Court comes to the conclusion that the suit by the next friend is not in the interest and for the benefit of the minor, it will decline to decree the suit.

10. Therefore, no permission of the Court by filing an application by the next friend to represent the minor was necessary. Thus, the next friend need not have filed any application for the appointment as interim guardian of minor for the purposes of the suit, and the application was misconceived. But, the Court has always inherent powers to decline to accept the next friend, if the Court is satisfied that he is subject to disqualifications and is not eligible under rule 4 of Order 32, C.P.C to represent the minor plaintiff as next friend or the minor defendant as guardianad-litem, and further if it can come to the conclusion that the suit by the minor through the next friend is not in the interest and for the benefit of the minor. But, generally a finding to the effect as to whether the suit by the minor through the next friend is in the interest and for the benefit of the minor can only be recorded after a written statement is filed, wherein such a plea is raised and an issue is framed and tried. There is a provision under Order 32, C.P.C under which any enquiry apart from the enquiry of minority of the plaintiff, if the same is disputed, can take place, and, therefore, at this stage the law does not require that the Court should frame a preliminary issue, enquire into the name and hold as to whether the suit of the minor through the next friend is in the interest and for the benefit of the minor.

11. Whether the property in dispute is alienable and the suit is not maintainable by virtue of Article 363 of the Constitution of India, is a matter which cannot be decided in a summary manner, and can only be decided after the Page: 509written statement and proper issue. The minor claims the property as the property of the Joint Hindu Undivided family, whereas the petitioner disputes it and according to him he is the sole owner of the property and has a right to alienate any portion of it. There are allegations and counter-allegations with regard to the disposal of movable and immovable property, but the truth of those allegations and counter-allegations can only be gone into during the trial of the case after proper issues, but the fact remains that the minor along with his mother is not living with the petitioner since the year 1974. He is living with his next friend for the purpose of the suit, who is also his maternal grand-mother. There are allegations in the plaint of neglect of the minor by the petitioner, and that the petitioner is not maintaining him. There are also allegations about alienating the property by the petitioner. Whether the suit has been filed by the next friend to wreck vengence, if any, on the petitioner, and as such is not in the interest and for the benefit of the minor, is again such a matter which cannot be decided in a summary manner. The next friend is none else but the maternal grand-mother of the minor under whose care the minor is said to be living. The next friend cannot be said to be subject to any disqualifications and it can hardly be disputed that she is an eligible person to represent the minor as a next friend within the meaning of rule 4 of Order 32, C.P.C Therefore, though as already observed above, no permission of the Court to act as a next friend of the minor plaintiff is necessary under law, but the Court has inherent powers and rather owes a duty to protect the interest of the minor, and decline to accept any person as the next friend of the minor, in case it is satisfied that he does not represent the interest of the minor, and the suit is neither in the interest of and for the benefit of the minor. But, to my mind, it is purely a question of fact and that stage can generally only reach when the matter of passing or not to pass a decree will come up for consideration before the Court. The minor has no volition of his own. As observed by their Lordships of the Supreme Court in Kakumanu-Pedasuhhayya's case (supra), the intention of the minor to become divided is in fact expressed by some other person, and the function which the Court exercises is merely to decide whether that other person has acted in the best interests of the minor in expressing on his behalf an intention to become divided.

12. Under rule 9(2) of Order 32, C.P.C, it is not the absolute right even of the guardian appointed of declared by an authority competent in that behalf, to be appointed, in the place of next friend, and though generally he is so entitled, but for reasons to be recorded, the Court can decline to appoint the guardian so appointed or declared to be the next friend of the minor and can appoint any other person to be next friend. Therefore, the argument of Mr. Tewari, learned Advocate for the petitioner, that because an application under Section 25 of the Guardian & Wards Act for appointment of the petitioner as guardian of person and property of the minor has been filed in the Courts of Delhi, and in the event of success in that application the petitioner will have to be appointed as a next friend in place of the present next friend of the minor has no force, firstly, because it is to pre-judge the decision of that case, and secondly even if the petitioner succeeds it will be upto the Court whether or not he should be appointed in place of the present next friend, and for reasons to be recorded the Court may pass any orders.

13. In Order 32 of the Code of Civil-Procedure, there are various provisions to safeguard the interest of a minor, who for the purposes of the suit is represented by a next friend. Even apart from those provisions, as already observed above, the Court has inherent jurisdiction and rather owes a duty to protect the interest of the minor and in case on the evidence to be brought during the course of trial the court would be satisfied that the suit for partition is not in the interest and for the benefit of the minor, the suit for partition will not be decreed. It has already been said earlier that no permission Page: 510of the Court to act as the next friend of the minor for the purpose of the suit is necessary under Order 32, C.P.C, but there may be cases where from the plaint itself and in cases where the next friend is a stranger haying an interest adverse to the minor, the Court may decline to accept the next friend. But, in the instant case, the next friend is the maternal grand-mother. There is no material on record for the present that her interest is adverse to the minor or the suit for partition has been only filed to wreck vengence on the petitioner and is not bona fide and will not be in the interest and for the benefit of the minor. Therefore, the order of the Court amounts the acceptance of the next friend for the purpose of the suit. It does not debar the Court as the subsequent stage. If there is material, which can only be after proper issues on the basis of pleading and other record, to hold that the suit is not in the interest and for the benefit of the minor and in that case the Court will decline to decree the suit of partition in favour of the minor. It is also contended by Mr. Tewari, the learned Advocate for the petitioner that from the plaint itself it shall appear that the suit is not maintainable in view of the provisions of Article 363 of the Constitution of India, and, therefore, it is a case in which under Order 7, rule 11(d), C.P.C the trial Court should have rejected the plaint. I have already said above that whether Article 363 is applicable or not is a matter which can only be decided after proper issue on the pleadings of the parties. Moreover, according to Mr. Tewari, he has applied under Order 7, rule 11, C.P.C before the trial Court and that application is pending decision.

14. Though, as a result of the above discussion it cannot be said that the application under Order 32, rule 2, C.P.C moved by the next friend on behalf of the minor was necessary, but it has already been said above that it is the inherent jurisdiction of the Court, and rather the Court owes to itself a duty to watch and protect the interest of the minor, and in the exercise of that jurisdiction the Court can accept a person as a next friend of the minor or decline to accept him or her, as the case may be. The law is settled that if any order is passed in exercise of its inherent jurisdiction, then unless the discretion is not exercised on well established judicial principles, a revision does not lie against that order. In the instant case, all that has been said by the Court on the present material is, that the next friend, who is the maternal-grand-mother of the minor, is a fit person to represent him in the suit. This discretion of the trial Court does not call for any interference. In the result, I do not find any substance in this revision, and it is hereby dismissed with costs.