Suits by or against trustees, executors, and administrators:
In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the beneficiaries and a third person, the trustee, executor or administrator shall represent the persons so interested, and it will not be necessary to make the beneficiaries parties to the suit, unless otherwise ordered by the court. Beneficiaries should, however, be added as parties when the trustees have an interest adverse to them. (Order XXXI, Rule 3).
ADVERTISEMENTS:
The husband of a married trustee, administratix or executrix, shall not be a party to a suit by or against her, unless the court directs otherwise. (Order XXXI, Rule 3).
A claim by or against an executor, administrator or heir as such, can be joined with a claim against him personally only when both the claims arise in reference to the same estate, or the claims are such as he was entitled to, or liable for, jointly with the deceased person whom he represents. (Order II, Rule 5).
Image Source: richardnelsonllp.co.uk
Legal Provision of Order XXXII of Code of Civil Procedure, 1908 (C.P.C.)
ADVERTISEMENTS:
Suits by or against minors and persons of unsound mind:
Minor is a person who has not completed the age of 18 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, the age of majority is completion of 21 years.
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 should be a person who is of sound mind, who has attained majority, who is not a defendant and whose interest is not adverse to that of the minor. (Order XXXII, Rules 1 and 4).
Explanation 1 to Rule 1 or Order XXXII lays down that in this Order “minor” means a person who has not attained his majority within the meaning of S. 3 of the Indian Majority Act, 1875, where the suit relates to any of the matters mentioned in els. (a) and (b) of S. 2 of that Act or to any other matter.
ADVERTISEMENTS:
Clauses (a) and (b) of S. 3 of the Indian Majority Act, 1875, lay down that nothing herein contained shall affect : (a) the capacity of any person to act in the following matters, namely, marriage, dower, divorce and adoption; (b) religion or religious rites and usages of any class of citizens of India.
Under the provisions of S. 3 of the Indian Majority Act, 1875, every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of 18 years, and every minor of whose property the superintendence has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of 18 years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act, or in any other enactment, be deemed to have attained his majority when he shall have completed his age of 21 years and not before.
Subject as aforesaid, every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before.
A decree obtained in favour of a minor even without being represented by the next friend in a suit cannot be treated as a nullity.
Where the suit is instituted 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. (Order XXXII, Rule 2).
Where the defendant is a minor, the court, on being satisfied of the fact of his minority, should appoint a proper person to be guardian for the suit for such minor, called the guardian ad litem. [Order XXXII, Rule 3],
An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. No order shall be made on any application except upon notice to any guardian of the minor appointed 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 in their absence to other natural guardian of the minor or to the person in whose care the minor is. The court may also issue notice to the minor. [Order XXXII, Rule 3 (2)]
The appointment of ad litem guardian under Order XXXII, Rule 3 in a suit relating to minor’s property does not take away the rights of natural guardian forever. Sale made by natural guardian after guardian ad litem was discharged was not void. When minor do not challenge the sale within limitation after attaining majority and make no objection to statements published under consolidated Act showing the purchaser as owner, the entries made in clerk register cannot be challenged on the ground that sale made by their father was void.
It is permissible for a minor to file a suit to set aside a decree on the ground of gross negligence on the part of his next friend. The protection of minors against the negligent acting’s of their guardians is a special one.
Where the plaint was presented within limitation but one of the vendee defendants was a minor and he was sued without appointing any guardian and the application for amendment of the plaint was subsequently filed and allowed and a guardian appointed, the suit cannot be said to be filed on the date of the appointment of the guardian for purposes of limitation as he was appointed with the permission of the court.
A person appointed as guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree. [Order XXXII, Rule 3 (5)].
Where a suit has been instituted on behalf of the minor by his next friend, the court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant. Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government. (Order XXXII, Rule 2A).
In case of a decree against a minor, the minor can file a suit to set aside the decree if there is gross negligence on the part of his next friend. In Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao, the Privy Council pointed out that protection of minors against the neglect acting’s of their guardians is a special case.
In the instant case the High Court has proceeded on the basis that it is permissible for a minor to file a suit to set aside a decree on the ground of gross negligence on the part of his next friend. The Supreme Court agreed with the said view.
No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor shall be a ground for setting aside the decree. (Order XXXII, Rule 3A).
On the death of a defendant, the suit does not abate as a whole as regards the surviving defendants.
No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the proceedings, 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. [Order XXXII, Rule 7 (1)].
An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor : provided that the opinion so expressed, whether in the affidavit or in the certificate, shall not preclude the court from examining whether the agreement or compromise proposed is for the benefit of the minor. (Order XXXII, Rule 7 (1A)]. 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. [Order XXXII, Rule 7 (2)].
Merely because proceedings could be lawfully carried on by the quondam guardian in a litigation in which the minor was involved .would not confer on the quondam guardian power to enter into a contract on behalf of a minor who had ceased to be a minor when the contract was entered into.
It is not disputed that a decree by consent is a decree passed on the basis of a contract. Where, therefore, the petitioner had become major when the compromise was entered into on his behalf by his mother, the latter could not act as the next friend after the former had attained majority and she was in no way his agent to bind him by her consent.
Removal of next friend:
Where the interest of the next friend 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, or when he does not do his duty, or during the pendency of the suit ceases to reside within India, or on any other sufficient cause the court may, on an application made on behalf of the minor, order the next friend to be removed.
On the retirement, removal or death of the next friend of a minor, further proceedings are stayed until the appointment of a next friend in his place. Similarly, a guardian may also be removed if he does not do his duty or allowed to retire by the court, and the court may appoint a new guardian in his place. (Order XXXII, Rules 9-11).
Powers of the next friend or guardian:
(1) In all suits to which any person under disability is a party any consent or agreement to a proceeding shall, if given or made with the express leave of the court by the next friend or guardian for the suit, be valid and binding on the minor. (S.147). But he has no power without the leave of the court, expressly recorded in the proceedings, to enter into any such agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian, (Order XXXII, Rule 7).
Order XXXII, Rule 7 is one of the provisions designed to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of a guardian. The protection is only during the pendency of the suit and for the purpose of Order XXXII, Rule 6, an execution proceeding is a continuation of a suit.
In a claim petition on behalf of a minor, no settlement or compromise can be arrived at without leave of the Court as required under Rules 6 & 7 of Order XXXII of the Code of Civil Procedure. The provisions contained in Rules 6 and 7 are mandatory and the Additional District Judge could not legally act upon the settlement arrived at between the parties without applying his mind to the fact as to whether the amount agreed between the parties is adequate to compensate the minor girl. This is a legal obligation of the Court created by law to protect the interest of the minor in such circumstances.
Under Order XXXII, Rule 7, C.RC. it is not sufficient for the court to grant leave to compromise after the compromise had been recorded and make a decree of the court. The leave of the court is a condition precedent to the passing of the decree. The guardian must obtain consent of the court before the compromise is concluded, i.e., before the compromise is made a decree of the court. The conclusion of the compromise comes about when the compromise is made a decree of the court.
An order under this rule has to be passed by the court after carefully considering the facts and the interest of the minor; the order should show that the court had applied its mind to the question whether the compromise was or was not for the benefit of the minor.
Where a next friend or guardian ad litem of a minor enters into a compromise on his behalf with permission of the Court under Order XXXII, Rule 7, the compromise and the decree based thereon would be as much binding on the minor as it is on the adult parties, unless the minor can show that the next friend or his guardian ad litem was guilty of fraud or negligence.
The onus of proving fraud or negligence on the part of the next friend or guardian ad litem would be upon the minor and for this purpose he has to make clear and distinct allegation in his pleadings and to substantiate them.
(2) 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 by way of compromise before decree or order, or under a decree or order in favour of the minor. (Order XXXII, Rule 6). But there is nothing in this rule to prevent the father or the Karta of a Hindu family to receive money before or after the decree on behalf of the minor unless the father or Karta is appointed guardian ad litem of the minor in the suit.
When minor attains majority:
When the minor plaintiff attains majority, he may elect to proceed with the suit or application or elect to abandon it. If he elects the former course,” he shall apply for an order discharging the next friend and for leave to proceed in his own name. The title of the suit will be corrected so as to read henceforth thus
“A.B., late minor, by C.D., his next friend, but now having attained majority.”
Where he elects to abandon the suit or application, he shall, if a sole plaintiff, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or which may have been paid by his next friend.
Where the minor applies to the court that the suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper and the court is satisfied of such unreasonableness or impropriety, it may grant the application and order the next friend to pay the costs of all parties in respect of the application and the suit or make such other order as it thinks fit. (Order XXXII, Rules 12 and 14).
It is now a well-settled principle that if a decree is passed against a minor without appointment of guardian the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of Rule 15 of Order XXXII, C.P.C. so that the decree obtained against the lunatic was a decree which has to be treated as without jurisdiction and void.
Persons of unsound mind:
All the above rules, except Rule 2A equally extend to persons adjudged to be of unsound mind or who, though not so adjudged, are on inquiry, found by the court, by reason of mental infirmity incapable of protecting their interests when suing or being sued. (Order XXXII, Rule 15).
Lunatics are under the special protection of the court and the decree will not be effective even if by ignorance of the court no enquiry was made. A person who is not of unsound mind may yet be “mentally infirm” within the meaning of Order XXXII, Rule 15, C.P.C. if by reason of a physical ailment, such as paralysis he has been rendered so weak and helpless that his mental outfit is by no means the outfit of a normal and healthy man.
The purpose and the scope of the inquiry under Order XXXII, Rule 15, Civil Procedure Code, is very much limited, the purpose being to give proper representation to the plaintiff who is a minor or insane at the time of suing. The scope of inquiry has to be only limited for the procedural purpose, that is to say, to give proper representation to the plaintiff if he is found to be insane or minor on the date when the suit was instituted.
The inquiry is not expected to travel beyond this limited purpose. It must be remembered that any order passed under Order XXXII, Rule 15, does not finally decide as to whether the plaintiff was insane at the time when the transactions attacked in the suit were entered into by him.
That is a matter which has to be gone into like any other issue in a regular trial and will have to be ultimately decided in the suit itself. Where the question which arises in the main suit itself is the same, greater care is required to be taken to see that any order passed under Order XXXII, Rule 15 does not transgress its legitimate limits and thus is allowed to affect the main question involved in the suit.
There is no reasonable basis for the apprehension that the evidence recorded for the purpose of disposing of the application under Order XXXII, Rule 15 would be used in the regular suit. In order to determine the main issue arising in the suit, the parties will have to adduce independent evidence and no reliance will be placed upon the evidence which has been recorded for a limited purpose.
A decree obtained against a person treating him as a minor while in reality he was a major at the date thereof is not a nullity, but is only an irregularity which is curable. But a decree against a minor treating him as a major is a nullity.
Where no proper guardian is appointed in a suit in which some of the defendants are minors, the whole proceedings are void. But a mere absence of formal order appointing a guardian when all necessary steps were taken will amount only to an irregularity and will not invalidate the whole proceedings.
A decree passed in favour of a minor without a next friend is only an irregularity which is deemed to be waived by the defendant if he does not apply to have the plaint taken off the file under Order XXXII, Rule 2. The decree is consequently valid. Moreover, the law treats all acts of a minor which are for his benefit on the same footing as those of an adult. It only does not permit him to do anything which is prejudicial to his own interests.
A decree passed against a person who was a minor at the date of the institution of the suit with a properly appointed guardian ad litem but attains majority during the pendency of the suit without any steps being taken to remove such guardian with the result that the decree is passed against him as a minor, is a valid decree as the guardian ad litem does not automatically cease to function on the minor attaining majority, but continues to represent him throughout all proceedings unless his appointment is terminated by retirement, removal or death under Rule 3 (5) of Order XXXII.
Appeal filed against minor without proper guardian:
Though a decree obtained against a minor without there being a guardian for him is a nullity, yet there is no authority for the proposition that an appeal against a minor without a proper guardian is an incompetent appeal filed or a suit filed against a minor without showing a guardian for the minor is an incompetent suit.
Suits relating to matters concerning the family [Order XXXII-A]:
Order XXXII-A makes provision for the procedure for suits relating to matters concerning the family. (1) It lays down that the provisions of this Order -shall apply to suits or proceedings relating to matters concerning the family.
(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely
(a) A suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;
(b) A suit or proceeding for a declaration as to the legitimacy of any person;
(c) A suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;
(d) A suit or proceeding for maintenance;
(e) A suit or proceeding as to the validity or effect of an adoption;
(f) A suit or proceeding, instituted by a member of the family, relating to wills, intestacy and succession;
(g) A suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.
(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding. [Order XXXII-A, Rule 1],
Proceedings to be held in camera:
In every suit or proceeding to which this Order applies the proceedings may be held in camera if the court so desires and shall be so held if either party so desires. (Order XXXIIA, Rule 2).
(1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
(2) If, in any suit or proceeding, at any stage it appears to the court
that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any power of the court to adjourn the proceedings. (Order XXXII-A, Rule 3).
Assistance of welfare expert:
In every suit or proceeding to which this Order applies, it shall be open to the court to secure the services of such person (preferably a woman where available) whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the court may think fit, for the purpose of assisting the court in discharging the functions imposed by Rule 3 of this Order (Order XXXII-A, Rule 4).
Duty to enquire into facts:
In every suit or proceeding to which this Order applies, it shall be the duty of the court to inquire so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant. (Order XXXII-A, Rule 5).
Meaning of family:
For the purposes of this Order, each of the following shall be treated as constituting a family, namely:—
(a) (i) A man and his wife living together, (ii) any child or children being issue of theirs, or of such man or such wife, (iii) any child or children being maintained by such man and wife;
(b) A man not having a wife or not living together with his wife, any child or children being issue of his, and any child or children being maintained by him;
(c) A woman not having a husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;
(d) A man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her; and
(e) Any combination of one or more of the groups specified in cl. (a), cl. (b), cl. (c) or cl. (d) of this rule. (Order XXXII-A, Rule 6).
Explanation:
For the avoidance of doubts, it is herely declared that the provision of Rule 6 shall be without any prejudice to the concept of ‘family’ in any personal law or in any other law for the time being in force.