RAJA RAM VS NAVEEN CHAND

A final Draft made by:

Sachin Kumar

Roll No: 2145

Course: B.A.LL.B. (Hons.)

Semester: 5th

Submitted to:

Dr. MEETA MOHANI

FACULTY OF CIVIL PROCEDURE CODE

Chanakya National Law University

A research proposal submitted in partial fulfilment of the course

LAW OF CIVIL PROCEDURE CODE

for attaining the degree B.A.LL.B. (Hons.)

AUGUST, 2021

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya Nagar, Mithapur, Patna (Bihar)-800001

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL. B (Hons.) Project Report
titled “RAJA RAM VS NAVEEN CHAND” submitted at Chanakya National
Law University is an authentic record of my work carried out under the
supervision of Dr. Meeta Mohini.

I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of my Project Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: SACHIN KUMAR

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Meeta Mohini whose guidance helped me a
lot with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me

immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands
that helped me out at every stage of my project.

THANK YOU,

NAME: SACHIN KUMAR

COURSE: B.A. LL.B. (Hons.)

ROLL NO: 2145

SEMESTER – 5th

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 AIMS AND OBJECTIVE
a. To study the case in detail.

b. To study the relevant provisions related to the case.

c. To study related case laws

HYPOTHESIS
The researcher hypothesizes that suit instituted in the name of minor by Next friend of minor
shall be binding against minor unless prejudice has been caused to his interest.

RESEARCH METHODOLOGY:
The researcher has based his research on doctrinal sources of information comprising of books,
journals, annual reports as well as internet.

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Table of Cotents
1. INTRODUCTION ......................................................................................... 6
2.FACTS OF THE CASE .................................................................................. 7
ARGUMENT ADVANCE BY THE DEFENDENT ....................................... 8
3.RELEVANT PROVISIONS UNDER ............................................................. 9
4. DECISION OF THE COURT ..................................................................... 11
5. IMPORTANT CASE LAW ........................................................................ 12
6. CONCLUSION ............................................................................................ 13
7.BIBLIOGRAPHY ......................................................................................... 13

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 1. INTRODUCTION

The plaintiff, Navin Chandra filed a suit through a next friend on 17th July, 1974 alleging
himself to be a minor and seeking cancellation of the sale-deed dated 1-4-1971 in respect of
plot No. 300 which had been executed by his mother in favour of the defendant. In the plaint
the plaintiff's age was disclosed to be 12 years.

The defendant also asserted that since Jagannath, the alleged next friend through whom the
plaintiff had filed the suit could be treated as a next friend of the plaintiff on account of his
interest being adverse to the plaintiff no decree in favour of the plaintiff could have been
passed, it was also asserted that in any event since the plaintiff had attained majority on 24-5-
1980 on his own showing the suit could if at all be deemed to have been filed on the said date
and since the sale-deed in dispute had been executed on 1-4-1971 and the suit to have been
filed on 24-5-1980 it was liable to be dis missed as having become barred by time on that date.

The trial court came to the conclusion that the sale had been executed by the plaintiff mother
was without any such permission and was voidable. The both appealed of defendant

against the decree of trail court were dismissed.

The court held that1 :

❖ The suit is properly represented according the order 32 of cpc.

❖ The suit is not time barred

1
7 anr 1995 (13)LCD622

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 2.FACTS OF THE CASE

➢ The plaintiff, Navin Chandra filed a suit through a next friend on 17th July, 1974
alleging himself to be a minor and seeking cancellation of the sale-deed dated 1-4-1971
in respect of plot No. 300 which had been executed by his mother in favour of the
defendant. In the plaint the plaintiff's age was disclosed to be 12 years.
➢ In the written statement, the plaintiff's age was disclosed to be only 10 years. The fact
that on the date of the execution of the sale-deed in question, the plaintiff was a minor
was not disputed. The plaintiff had challenged the validity of the sale-deed in question
on the ground that the sale-deed had been executed without obtaining the requisite
permission from the District Judge as contemplated under Section 8 of the Hindu
Minority and Guardianship Act. The aforesaid suit was contested by the present
appellant asserting that Jagannath who was shown to be the next friend of the minor
plaintiff had no right to file the suit.
➢ It was also asserted that the suit was barred by Section 331 of the U. P. Zamindari and
Land Reforms Act and in any case, the plain tiff should return the sale money and
without such payment the sale-deed could not be cancelled.
➢ The defendant also asserted that since Jagannath, the alleged next friend through whom
the plaintiff had filed the suit could be treated as a next friend of the plaintiff on account
of his interest being adverse to the plaintiff no decree in favour of the plaintiff could
have been passed, it was also asserted that in any event since the plaintiff had attained
majority on 24-5-1980 on his own showing the suit could if at all be deemed to have
been filed on the said date and since the sale-deed in dispute had been executed on 1-
4-1971 and the suit to have been filed on 24-5-1980 it was liable to be dis missed as
having become barred by time on that date.

➢ The trial court came to the conclusion that the sale-deed in respect of plot No. 300 in
dispute had been executed by the plaintiff mother was without any such permission and
was voidable.

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ARGUMENT ADVANCE BY THE DEFENDENT
1.
2. The aforesaid suit was contested by the plaintiff that Jagannath who was shown to be the
next friend of the minor plaintiff had no right to file the suit.
3. It was asserted that in any event since the plaintiff had attained majority on 24-5-1980 on
his own showing the suit could if at all be deemed to have been filed on the said date and
since the sale-deed in dispute had been executed on 1-4-1971 and the suit to have been filed
on 24-5-1980 it was liable to be dis missed as having become barred by time on that date.

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 3.RELEVANT PROVISIONS UNDER

ORDER XXXII, RULE 1 TO 14

1.“PLAINTIFF HAD NO RIGHT TO FILE THE SUIT”

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.

As Pollock stated:

An infant is not absolutely incapable of binding himself, but is, generally speaking, incapable
of absolutely binding himself by contract2.

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.3

Order XXXII is one such provisions which ensures that rights of such persons are protected.

Order xxxii rule 1 requires that. - Every suit by a minor shall be instituted in his name
by a person who in such shall be called the next friend of the minor.

Concept of Next Friend/ Guardian

As minor is 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.4

Who can be appointed as Next Friend/Guardian:

2
Edward Coke, Institutes of The Lawes Of England 291 (1644).
3
Halsbury vs Laws of England 46 (6th Ed 1973).
4
Rup Chand v. Dasodha, (1908) ILR 3 All 55.

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 Every suit by a minor should be instituted in his name through his guardian or next friend5. If
the same is not done, the plaint will be taken off the file6. Any person who has attained majority
and is of sound mind7, may act as a guardian or next friend, provided his interest is not averse
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 friend8. 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 particular suit9.

The court may also remove a particular guardian or next friend if the court is satisfied
that either 10:

• His interest is averse 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 case11.

2. ‘THE SUIT IS BARRED BY TIME ON THAT DATE’

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.

5
Order XXXII, Rule 1, Code of Civil Procedure, 1908
6
Order XXXII, Rule 2, Code of Civil Procedure, 1908
7
Order XXXII, Rule 4, Code of Civil Procedure, 1908
8
ibid
9
ibid
10
Order XXXII, Rule 9, Code of Civil Procedure, 1908
11
Order XXXII, Rule 10, Code of Civil Procedure, 1908

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• 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 name12.
• 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 may be13.
• 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
instead14.
• 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.

4. DECISION OF THE COURT

❖ The provisions contained under Order XXXII, Rule 1 of the Civil Procedure Code deals with
procedure only. 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. However, no effectual or a valid decree could
be passed against the interest of a minor without his being represented by a proper next friend
or a proper guardian. The rule is intended for the benefit of the minor. Even if the next friend is
found to be not a proper person, the suit filed in the name of the minor cannot be treated as
abortive and an opportunity should normally be given to remove the defect in this regard, if
any. This course has to be adopted as the minor who is a party to suit is considered to be
under the protection of the Court and consequently it is the duty of the court to watch his
interest vigilantly and see to it that he is represented by a proper person and if court found any
defect, the court after noticing the minority of the plaintiff to suspend all the proceedings in the
suit until the defect is removed.
❖ In the present case what I find is that the suit had been filed by the plaintiff minor on 14-7-1977
and it is not disputed that on the said date, the suit was well within limitation. The fact that the
minor has a right of suit after attaining majority does not prevent him from instituting suit daring
his minority adopting the procedure established by the law. The plaintiff in the present case
had attained the majority on 24-5-1981

12
Order XXXII, Rule 12, Code of Civil Procedure, 1908
13
Order XXXII, Rule 13, Code of Civil Procedure, 1908
14
Order XXXII, Rule 14, Code of Civil Procedure, 1908

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 5. IMPORTANT CASE LAW

❖ Anandram and Anr. v. Madholal and Ors15, wherein it has been held that the Courts
must strictly observe the provisions of Order 32, Rules 3 and 4 C.P.C. but at the same time
the real object of the said rules is to safeguard the interests of the minor and in a case like
the present nowhere the minor is effectively represented by his own natural guardian and
father and where his interest does not conflict with that of guardian and where no particular
prejudice is alleged, it would not be proper for the Court to set aside the decree in exercise
of its inherent power, simply because a formal order regarding the appointment of a
guardian ad litem is not made by the Court on account of inadvertence.
❖ Gurpreet Singh v. Chatterbhuj Goel16, wherein it has been held that non-compliance
with the mandatory provisions of Order 32, Rules 3 & 4 of the C.P.C. makes the decree
void and in the suit against minor for specific performance of agreement to sell, the
application was not made under Rules 3 and 4 of the C.P.C. for appointment of a guardian
by the plaintiff - person acting on behalf of minor acts is without authority and prejudice
must also be presumed to have caused to the appellant. The findings of the learned single
Judge of High Court on this point was reversed.
❖ Raj Behari Lal & Ors. v. Dr. Mahabir Prasad & Ors17, the Court held that an appeal on
behalf of the minor can be filed by the guardian appointed by the court. When the appeal
is filed by the minor as Plaintiff in the previous suit, then the next friend can file the appeal
on behalf of the minor. The provisions in Order 32 of the CPC shall apply in such suits.
Every suit by a minor must be instituted in his name by his next friend.

❖ Great American Insurance v. Madan Lal18, the next friend entered a contract for
insurance to protect the minor’s property which was destroyed by fire. When the insurers
told that they cannot give the money as the agreement with the minor was void, the next
friend sued the insurer for recovery of the insurance money and the court held that the next
friend can claim the insurance. Here the contract is beneficial to the minor; the next friend
did not cheat the minor or did not take it for his own benefit.

15
AIR 1960 Rajasthan 189
16
AIR 1992 P. & H. 95
17
AIR 1956 All 310
18
1935) 37 BOMLR 461,
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 6. CONCLUSION

The concept of next friend is to protect the interest of minor and bring justice to the minor or
unsound person. The concept of next friend has many more advantages than a guardianship. A
next friend need not take any kind of permissions or appointments unlike guardian from the
court. The duty of the next friend is same as if he individually instituted the suit for himself but
in the interest of the minor. The next friend has the power to move an appeal, institute a suit
and has all the powers like any other individual on behalf of the minor.

7.BIBLIOGRAPHY

❖ WEBSITES REFERRED;

•https://14.39.209.68:10443/proxy/4ae4f294/https/www.manupatrafast.in/pers/
Personalized.aspx

•http://jowaipolice.gov.in/Laws_and_References/ipl_and_acts/15-cpc-1872.pdf

• https://www.aaptaxlaw.com/code-of-civil-procedure/order-xxiv-code-of-civil procedure-
rule-1-2-3-4-payment-into-court-order-24-of-cpc-1908-code-of civil-procedure.html

• https://indiankanoon.org/doc/246591/

• https://www.srdlawnotes.com/2017/02/meaning-of-fact-and-concept-of-fact.in.html

❖ BOOKS REFERRED: -

• C.K. Takwani, Civil Procedure with Limitation Act, 1963 (8th ed. 2019).

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