CHAPTER XXXI. Furiosus absentis loco est. MINOR must sue by an adult, who shall be called his next friend, and may be ordered to pay any costs as if he were plaintiff; and every application, except that to proceed with a pending suit on coming of age, must be made by next friend or guardian ad litem, otherwise the defendant can always ask to have the plaint taken off the file, and the costs paid by pleader, or other person by whom it was presented. Notice of such application must always be given to such person by defendant, and Court, after hearing his objections may pass fitting order, When the Court is satisfied that the defendant in any suit is a minor, it shall appoint a guardian to put in defence and act on his behalf. Guardian ad litem is not guardian of person or property within meaning of Indian Majority Act. Every order in a suit, or on application before the Court, by which minor is at all concerned or affected, passed without minor's being represented by next friend or guardian, may be discharged, and costs paid by pleader of party at whose instance such order was obtained, if he knew, or might reasonably have known, of the fact of such minority. Any person of sound mind and full age, whose interest is not adverse to that of minor, and is not defendant in the suit, may act as next friend. Next friend may be removed by application on behalf of minor if, (i) his interest is adverse, (i) he is so connected with a defendant whose interest is adverse, as to render it unlikely that the minor's interest will be properly protected by him, or (ii) does not do his duty, or (iv) pending suit ceases to reside in British India, or (v) for any other sufficient cause and Court, if satisfied with sufficiency of cause, may order next friend to be removed. Unless ordered, a next friend shall not retire at his own request without first procuring a fit person in his place, and giving security for costs already incurred. Application for appointment of next friend must be supported by affidavit of fitness of person proposed, and that he has no interest adverse to minor. On death or removal of next friend, proceedings shall be stayed until appointment of another. Should minor's pleader fail to take steps to get new next friend appointed, any person interested in minor or matter at issue may apply for appointment of one, and Court may appoint whom it thinks fit. Minor plaintiff or minor not party to suit, on whose behalf an application is pending, must on coming of age elect whether he will proceed with suit or application, If he elect to proceed, he shall apply for order discharging next friend, and leave to proceed in his own name. The title in suit, &c., shall then be corrected to "A. B. late a minor by C. D. his next friend, but now of full age. But if to abandon, he must, if alone, apply for order to dismiss suit, &c.. on repayment of costs incurred by defendant or respondent, or which have been paid by next friend. These applications may be made ex parte, and it must be proved by affidavit that minor has attained full age. A minor co-plaintiff coming of age and desiring to repudiate, proceeds in the same way save that notice of such application must be served on next friend and defendant. If he was not a necessary party, he can be dismissed on fit terms as to costs. &c. If he be necessary, Court may direct him to be made defendant. If the minor can show that the suit was unreasonable or improper, he can ask to have it dismissed, if sole plaintiff. Notice must be served on all parties interested, and the Courts if satisfied may grant application and order next friend to pay all costs. A guardian ad litem may be appointed on minor's application if supported by an affidavit that proposed guardian has in suit no interest adverse to minor, and is fit person: a co-defendant provided interest is not adverse may be fitting, but never a plaintiff or married woman. Guardian neglecting his duty may be removed and ordered to pay all costs caused by breach of duty. New guardian can be appointed on removal or death of a guardian during suit. If execution is applied for against a minor heir or representative of a deceased, guardian for the suit shall be appointed and decree-holder shall serve notice on him. In a suit before a decree no money or other thing shall be received or taken by next friend or guardian on behalf of minor without leave of Court first obtained, and security given, that it shall be duly accounted for. No next friend or guardian can compromise a suit without Court's leave, and such compromise is voidable against all parties other than minor. The above provisions apply to all lunatics, save those for whose property or person guardian or manager has been appointed by Court of Wards or Civil Court under any local law. (n) There is nothing in the Minor's Act (XX. of 1864,) to prevent the institution of a suit by the next friend of a minor who has not obtained a certificate of administration to the minor's estate, but who claims no right to have charge of the minor's property, asking for a declaration of the minor's rights, and for an A guardian for the suit is not a guardian of person or property within the meaning of the Indian Majority Act, 1875, section 3. M. 444. Every order made in a suit or on any applica Order obtained without next friend or guardian may be discharged. Costs. tion before the Court, in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and if the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader. M. 445. Any person being of sound mind and full age may act as next friend of a minor, Who may be next friend. provided his interest is not adverse to that of such minor, and he is not a defendant in the suit. M. 446. If the interest of the next friend of a minor is adverse to that of such minor, or if Removal of next friend. he is so connected with a defendant whose interest is adverse (r) to that of the minor, as to * See p. 271. make it unlikely that the minor's interest will be properly protected by him, or if he does not do his duty, or, pending the suit, ceases to reside within +British India, or for any + See p. 65. 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. Retirement friend. of next M. 447. Unless otherwise ordered by the Court, a next friend shall not retire at his own request without first procuring a fit person to be put in his place, and giving security for the costs already incurred. The application for the appointment of a new next friend shall be supported by‡affidavit, showSs. 194, 197. ment of new next friend. Application for appoint. ing the fitness of the person proposed, and also that he has no interest adverse to the minor. M, 448. On the death or removal of the next friend of a Stay of proceedings on death or removal of next friend. minor, further proceedings shall be stayed until the appointment of a next friend in his place. M. 449. If the pleader of such minor omits, within reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or the mat Application for appoint ment of new next friend. ter at issue may apply to the Court for the appointment of order directing the defendant to pay money he owes to the minor into the principal Civil Court of the district. As the right, however, of a friend to institute a suit on behalf of a minor is under the control of the Court, and as the Minor's Act, by secs. 3-7, enables a friend of the minor to protect his interests by applying for the appointment of a fit person to have charge of the property of the minor, and to protect his estate, the proper course for a Court, to which a plaint on behalf of a minor is presented by his friend, is either to refuse to accept the plaint when there is no pressing necessity for its acceptance, or in case such pressing necessity exist, to accept the plaint and stay proceedings until the plaintiff has duly obtained a certificate under the Act. Vijkor Jijibhai v. Vaji, Bom, H. C. Rep., IX. 310. A suit can be brought in formâ pauperis by a next friend who is also a pauper. S. M. Golaupmoni Dassi v. S. M. Prosonnomoyee Dassi, B. L. R., XI. 373. A foreign guardian cannot be recognized; in a case where a suit to recover profits of immoveable property was brought by the agent of a minor's guardian appointed by H. H. the Gaikwar of Baroda, it was ordered that the proceeding should be amended by describing such agent as the next friend in which capacity he was then permitted to sue. Magan bhai Purshotuma Dass v. Vithola Bin Narayan Shet. Bom. R. VII. A. C. 7. (0) According to Act IX. of 1875, an act which is extended to the whole of British India, and is the law for persons domiciled in British India every minor, of whose person or property a guardian has been or shall be appointed by a Court of Justice, and every minor under a Court of Wards shall be deemed to have attained his majority, when he shall have reached the age of 21, and not before; every other person shall be deemed to have attained it when he shall have completed 18 years. In computing the age, the day on which he was born is to be included as a whole day, and he is deemed to have attained majority when he has reached the beginning of the 18th or 21st anniversary of that day as the case may be. Act IX. 1875, secs. 3 and 4. It is not sufficient for a Court to look in a man's face and to pronounce that he is a minor, the more particularly when he has on other occasions acted as a major. The Court should call upon him to produce direct evidence as to his age, and come to a finding thereon. Kali Haldar v. Sriram Ghose, S. W. R., 1864, 366. The incidental mention of a child's age in the recital of a will is no proof of the exact age of that child. The proceedings after the devisor's death granting a certificate to the guardian of the girl are merely proof of her being a minor at that time, and do not disclose what her exact age then was. In the absence of proof that the person who made a sale was a minor at the time she executed a deed of sale to plaintiff, the onus of which proof lay on the defendant, the sale by her was upheld. Nilmoney Chaudhry v. Musst. Zuheeunissa Khanum and others, ib. VIII. 371. (p) Proximity of connection does not necessarily entitle a person to the office of guardian. A person out of caste is not a proper person to be the guardian of Hindu minors. Fuggu Daye v. Ranah Daye, ib. IV. Mis., 3. Whatever might be the propriety of making provision by the appointment of a public officer, for the institution of suits on behalf of infants, it is of the utmost importance that no person should be appointed for that purpose, of whom even a suspicion could exist that he might be biassed by any personal interest either in the institution of a suit, or in the mode of conducting it, and the Registrar of a Court, by reason of the office he holds, would both receive fees upon the different proceedings in such case, and a commission upon any monies paid into the Court: thus it is plain that he has a strong personal interest, both in the institution of suits, and in the mode of conducting them and especially in one of the most delicate points upon which a next friend could be required to exercise a discretion, viz., the propriety or impropriety of requir ing the payment of money, or transfer of funds into Court. It is of great consequence in all countries, and more particularly in a country like India, that no officer of a Court of Justice should be even exposed to the suspicion, that, in the discharge of his official duties, his conduct may be influenced he should therefore never be appointed a next friend Kerakosse v. Serle M. I. A. v. III. p. 329. The Madras High Court (VII. 179) rule that the presupposition to the exercise by the state acting through the Courts of the power to appoint a guardian is that there shall be no guardian existing by the provision of the law itself. By Malabar law the Karnavan is the natural guardian of every member within his tarrad. (4) A decree obtained against a minor and his property represented by an unauthorized guardian may be set aside by a *See pp 126131. †Ss. 194-197. one, and the Court may appoint such person as it thinks fit. Where he elects to proceed. name. to proceed with it, he shall apply for an order discharging the next friend, and for leave to proceed in his own The title of the suit or application shall in such case be corrected so as to read thenceforth thus: “A, B, late a minor by C, D, his next friend, but now of full age." M. 452. If he elects to abandon the suit or application, he shall, if a sole plaintiff, or sole applicant, apply for an order to dismiss on re-payment of the costs incurred by the defendant or respondent, or which may have been paid by his Where he elects to abandon. Costs. M. 453. Any cations under sections 451, When minor co-plaintiff. application under section 451 or section 452 may be made ex-parte; and it must be proved by† affidavit that the late minor has attained his full age. M. 454. A minor co-plaintiff on coming of age, and desiring to repudiate the suit must apply to have his name struck out as coplaintiff; and the Court, if it find 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. Notice of the application shall be served on the next friend, as well as on the defendant; and it must be proved by affidavit that the late minor has attained his full age. 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. Costs. If the late minor be a necessary party to the suit, the Court may direct him to be made a defendant. M. 455. If any minor on attaining majority can prove to the satisfaction of the Court that a suit instituted in his name by a next friend was unreasonable or When suit unreasonable or improper. may, if a sole plaintiff, apply to have the improper, he 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 applica lawful guardian without imputation of fraud or collusion, and will not be binding on the minor and against his property. Masst. Khushalo v. Subukh, 1 Agra Rep., A. C., 175. There is no error in law in an order of a lower Appellate Court, directing that a minor should be excluded from the category of defendants in a suit, inasmuch as the minor, not having been represented by a guardian, would not be bound by any decree of Court, for the law does not recognize any act of a minor when not having a guardian before the Court. Radhakishore Surmah v. Ram Chunder Dass and others, S. W. R., XI. 300. In a suit in which it is not necessary for a minor defendant to take an active part, no guardian is ever justified in taking any step prejudicial to his ward. If he can do nothing positively for the minor's benefit, he ought to leave the matter to the Court. Court of Wards v. Raj Kumar Deo Nandan Sing, S. W. R., XVI. 143. Section 2 of Act XX. of 1864, does not prohibit a person having a claim against a minor from bringing a suit until a certificate of administration has been granted. He may properly bring his suit, but immediately after his doing so he should apply to the District Judge for the appointment of an administrator and it is competent to the District Judge under sec. 8 of the Act to make that appointment. In re Motira Rupachand Bom. XI., Page. 21. (") A guardian's acts may appear hostile to his ward and yet be done in perfect good faith. Mary Eliza Stephenson and another v, Unnoda Dossee, 6 W. R., Mis., 18. It is undoubtedly the duty of guardians scrupulously to regard the interests of minors in dealing with their estates, and the Court will, when necessary, enforce the performance of this duty. But the interests of infants would seriously suffer if a notion were to prevail that guardians were bound for their own security to contest all claims against an infant's estate, whether well or ill-founded; and such a notion might prevail, if the compromise of a claim of debt confirmed by a decree of Court were set aside after 16 years without distinct proof of fraud, Baboo Lekraj v. Baboo Mahtab Chand M. I. A. XIV. 393. (s) A minor when he comes of age is not precluded from suing in his own name for anything that his guardian, either through ignorance or negligence, has omitted to prosecute. Koylash Chunder Sircar v. Gooroo Churn Sircar, S. W. R., III. 43. |