A legal system that bases itself in justice, equity and good conscience must
have provisions to ensure that fair justice is meted out to all sections of
citizens that come before it. Naturally, since all citizens are not equally
placed, special provisions need to be made for some to ensure protection of
their rights. Minors and Persons of Unsound Mind are persons that can be easily
exploited due to their mental incapacity, anticipating that they might be
cheated, ill-treated or trapped in a fraudulent device, there are several
provisions to ensure their protection.
Order XXXII is one such provisions which
ensures that rights of such persons are protected. It contains a set of rules to
apply to each case concerning minors and persons of unsound mind and has
measures to ensure that such persons are protected not only against the opposite
persons in the concerned case but also from adverse interests of their own
guardian or next friend.
Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST
MINORS AND PERSONS OF UNSOUND MIND. Order XXXII contains special provisions
applicable only in cases where either the suit is:
- To be instituted at the cause of a minor/person of unsound mind
- To be instituted against a minor/person of unsound mind
In the Code of Civil Procedure, the main object behind the enactment of Order
XXXII is the protection of the interests of minors and persons of unsound mind.
The origin behind this concern rests in Common Law. The Common Law position is
that persons who are unable to understand the nature and consequences of their
actions (of immature intelligence and discretion) ought not to be liable for
their actions so undertaken. This legal position stands firm even today except
where his status is that as a cestui qui trust.
An infant is not absolutely incapable of binding himself, but
is, generally speaking, incapable of absolutely binding himself by
The law will, as a general principle, treat all acts of infants
which are of his benefit on the same footing as those of adults, but will not
permit him to do anything prejudicial to his own interests.
In Ram Chandra v. Man Singh
it was held that a decree passed against a minor or
a lunatic without appointment of a guardian is a nullity and void, not merely voidable.  Now that the origin of the concerned aspect of law is
intelligible, it next becomes important to describe who it pertains to.
is, for purposes of civil litigation in India, defined to mean a person who has
not attained majority under the provisions of the Indian Majority Act, 1875,
that is a person who has not completed the age of eighteen years and in the case
of a minor of whose person or property a guardian has been appointed by a court,
or whose property is under a court of wards, a person who has not attained the
age of 21 years.
Similarly, a person of unsound mind is a person who is
declared after competent examination to be unable to understand the nature and
consequence of his actions due to the presence of a mental disease or infirmity.
Rules 1 - 14 of Order XXXII apply not only to minors and persons, adjudged to be
of unsound mind, but also, those, who are found to be, by a Court upon inquiry
to be incapable, by reason of any mental infirmity, of protecting their interest
when suing or being sued. This is based on the natural law principle that both
parties to a suit must be heard equally before a suit is adjudicated upon.
The next legal problem that arises is how best to ensure that such disadvantaged
persons are not taken advantage of by means of vexatious litigation or misuse of
provision. This was addressed by the concept of next friend or guardian. The
concept is framed on the assumption that a next friend or guardian, being an
adult of reasonable prudence will act to ensure that the disadvantaged persons
interests are not misdirected.
Concept of Next Friend/ Guardian:
The object behind having a next friend or
guardian ad litem is that a minor is deemed to be incapable of defending himself
and therefore it is imperative that his interests in the suits should be
supervised by an adult person. This person, in case the minor is a plaintiff, is
to be called the next friend and when the minor is a defendant, is called a
guardian ad litem or guardian for the suit. However, neither the next friend nor
guardian ad litem is a party to the suit. The power of the person so assigned
is limited to the proceedings for which he is recognised by the court.
Who can be appointed as Next Friend/Guardian:
Every suit by a minor should be
instituted in his name through his guardian or next friend. If the same is
not done, the plaint will be taken off the file. Any person who has attained
majority and is of sound mind, may act as a guardian or next friend,
provided his interest is not adverse to that of minor, who is not the opposite
party in the suit and who gives consent in writing to act as a guardian or next
friend. In the absence of a guardian who is fit and willing person to act as
a guardian, the court may appoint any of its officers as guardian in that
Provisions to ensure that interests of minors are safeguarded during the suit -
Rule 5 of Order XXXII states that every representation made before the court
other than under Rule 10(2) must be made by his next friend or guardian.
Where an order is passed without such representation, the same may be discharged
with. Further, by way of Rules 6 and 7, without the leave of the court, no
guardian or next friend can:
- Receive any amount or movable property on behalf of the minor
- Enter into any agreement on behalf of the minor
- Reach any sort of compromise in the suit on behalf of the minor
The guardian must apply for leave of the court in all of the above cases
and the application must be accompanied with a pleaders certificate and
affidavit. Any agreement entered into, without the leave of the court is
voidable at the instance of the minor. Rules 6 and 7 have been designed in
order to safeguard the interests of a minor during the pendency of a suit
against hostile, negligent or collusive acts of next friend or guardian.
principle these rules follow is that infant litigants become wards of court and
therefore it becomes the duty of the court to ensure that guardians act properly
and bona fide in the interests of the minor. The protection however, is only
during the pendency of the suit.
Duty to Act in Best Interest of Minor:
as already stated in rule 4 any person
complying with the qualifications under Rule 4 may become guardian or next
friend. The guardian or next friend however, must ensure that he acts in best
interests of the minor or unsound person. A guardian must ensure that the
discretionary powers exercised by him in his capacity as guardian including the
employment/dismissal of legal counsel etc. must be in the best interests of the
minor and not to advance his own cause or interests.
However, in certain
cases it may be allowed for the guardian and the minor to have common interest
in the suit. As in the case of Ranganathan Chettiar v. Perrkarriappa Chettiar
the mother was allowed to bring a suit concerning certain properties to be
inherited by her and her minor son which had been wrongfully claimed by the
brother of the deceased husband.
Retirement, removal or death of guardian/next friend - A next friend or guardian
who wishes to retire must first procure a fit person to substitute him and give
security for costs already incurred by him.
The court may also remove a particular guardian or next friend if the court
is satisfied that either:
- His interest is adverse to that of the minor in the concerned case
- He is in such a standing as to be capable of colluding with the opposite
party or is closely connected to the opposite party
- He does not discharge his duty to the satisfaction of the court
- He ceases to stay in India during the pendency of the suit and is
therefore unable to look after the best interests of the minor
- Any other sufficiently justifiable cause as the court may decide
In a case where a guardian or next friend retires or is removed or in the case
of his death, the suit remains stayed until another appropriate guardian is duly
appointed in that particular case.
When Minor attains majority:
When a minor attains majority, he can choose
either to proceed with a particular suit or to abandon it, if he had moved the
court through a next friend/guardian. Therefore:
- Where he elects to proceed with the suit - he must apply for an order
from the court discharging the next friend or guardian and for leave to
proceed with the suit in his own name.
- Where he elects to abandon the suit - he must apply for dismissal of
suit on repayment of costs to defendant or next friend/guardian as the case
- Where minor co-plaintiff desires to repudiate suit - he may repudiate
the suit and apply to have his name as co-plaintiff stuck off. The court
after examination of the circumstances may remove his name from the suit on
finding that he is not a necessary party or may make him a defendant
- Where minor desires that suit instituted in his name be dismissed on the
ground that it was unreasonable/improper - he may by application move the
court for dismissal on such grounds.
It is important to mention that Order XXXII does not expressly provide for
provisions when a defendant would attain majority because a defendant cannot
terminate the suit.
Application of Order XXXII to persons of unsound mind - Rule 15 of the Code
states that the provisions of Order XXXII (Rules 1 to 14) shall squarely apply
to persons of unsound mind as they do to minor with exception of Rule 2A which
relates to the furnishing of certain securities by guardian.
Order XXXII is another example of exemplary legal framework which
is part of a larger code and process of litigation that has been operating since
the inception of the Code in 1908. The rules under the order have also been
amended from time to time to ensure that relevance is maintained.
such as fraud, collusion and adverse interest have been considered. The
judicial opinion as to negligence of guardian have changed over time and is
an interesting field where there is more scope to expand minor’s rights.
However, Order XXXII is quite complete in its treatment of the legal problem on
how to ensure fair representation of minors and persons of unsound mind.
- 2 Edward Coke, Institutes Of The Lawes Of England 291 (1644).
- Pollock, Principles Of Contract At Law And In Equity 46 (1st Ed. 1885).
- 17 Halsbury’s Laws Of England 46 (6th Ed 1973).
- Ram Chandra v. Man Singh AIR 1968 SC 954.
- S.3 Indian Majority Act, 1875.
- Rup Chand v. Dasodha, (1908) ILR 3 All 55.
- RB Mishra v. State, AIR 1983 Pat 250.
- Order XXXII, Rule 1, Code of Civil Procedure, 1908
- Order XXXII, Rule 2, Code of Civil Procedure, 1908.
- Order XXXII, Rule 4, Code of Civil Procedure, 1908
- Order XXXII, Rule 4, Code of Civil Procedure, 1908.
- Order XXXII, Rule 5, Code of Civil Procedure, 1908.
- Order XXXII, Rule 5, Code of Civil Procedure, 1908.
- Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790.
- Dokku Bhusshayya v. Katragada Ramakrishnaya, AIR 1962 SC 1886.
- Rangasayyi v. Nagarathnamma AIR 1933 Mad 890.
- Dharmaji v Gurrav Dharmaji v Gurrav (1873) 10 BHC 311.
- Ranganathan Chettiar v. Perrkarriappa Chettiar 1958 SCR 214.
- Order XXXII, Rule 8, Code of Civil Procedure, 1908.
- Order XXXII, Rule 9, Code of Civil Procedure, 1908.
- Order XXXII, Rule 10, Code of Civil Procedure, 1908.
- Order XXXII, Rule 12, Code of Civil Procedure, 1908.
- Order XXXII, Rule 13, Code of Civil Procedure, 1908.
- Order XXXII, Rule 14, Code of Civil Procedure, 1908.
- Ram v. Ganga, AIR 1973 Pat 635.
- Order XXXII, Rule 15, Code of Civil Procedure, 1908.
- Order XXXII Rule 9 Code of Civil Procedure 1908
- Tikaram v. Tarachand, 1953 ILR Nag 1911.