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Kamalammal Vs. A.N. Shanmugham Alias Gurunathan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1976)1MLJ217
AppellantKamalammal
RespondentA.N. Shanmugham Alias Gurunathan and ors.
Excerpt:
- .....by the appellant for taking the plaint off the file. the above rule itself does not contemplate a suit instituted by such a minor plaintiff being dismissed on that ground. there is a difference between a suit being dismissed and a plaint being taken off the file, and all that order 32, rule 2(1) contemplates is a plaint being taken off the file on an application for the said purpose being made by the defendant. it is true the courts have made a distinction between two classes of suits instituted by a minor, one knowing-that he was a minor and he was incompetent to institute a suit without the next friend and yet filing a suit with a view to deceive the court or with some ulterior purpose, and the other, a minor filing the suit without knowing or realising his minority and in the former.....
Judgment:

M.M. Ismail, J.

1. The first defendant in O.S. No. 69 of 1970, on the file of the Court of the Subordinate Judge of Kancheepuram, is the appellant herein. For the sake of convenience, the parties will be referred to as they were arrayed in the suit. The first defendant and second defendant are sisters and the second defendant has married the third defendant. The two plaintiffs are the sons of the second and third defendants. One Rajakotilingam Chettiar was the father of defendants 1 and 2, and, therefore, the father-in-law of the third defendant, and the maternal grandfather of the plaintiffs. It is admitted that, after the birth of the first plaintiff on 6th December, 1948, Rajakotilingam Chettiar filed O.P. No. 162 of 1949 on the file of this Court under the Guardians and Wards Act and Was appointed as the guardian of the first plaintiff. Equally, it is admitted that, after the appointment as guardian, Rajakottilingam Chettiar,, as the guardian of the first plaintiff and the third defendant, executed a sale deed in favour of one Natesa Mudaliar, for Rs. 39,000 was evidenced by Exhibit A-2 dated 26th September, 1949 in respect of No. 7 Malayaperumal Street belonging to the first plaintiff. Out of this consideration of Rs. 39,000 a sum of Rs. 12,000 was retained by Rajakotilmgam Ghettiar for the purpose of discharing a mortgage existing previously in favour of one Murali Kaka Trust. The present suit was instituted by the first plaintiff for himself and as the guardian of his minor brother the second plaintiff, for the recovery of a sum of Rs 25,216 putting forward the contention that Rajakotilingam Chettiar the erstwhile guardian of the first plaintiff, did not apply the said sum of Rs. 12,000 for the purpose of discharging the mortgage due to Murali Kaka Trust and he furnished false accounts to this Court and that ultimately it was the third defendant who had to discharge the mortgage debt. Rajakotilingam Ghettiar himself died on 29th December, 1963 and it was thereafter the present suit was instituted for the recovery of the moneys from the estate of Rajakotilingam Chettiar in the hands of defendants 1 and 2. Several defences were put forward by the first defendant in the suit, the second and third defendants remaining ex parte, two of them being, that the suit was not maintainable because on the date when the suit was instituted the first plaintiff was a minor inasmuch as he had not compiled the age of 21 and he was not represented by a next friend and secondly that the suit could have been instituted only with the permission of the High Court which ordered O.P. No. 162 of 1949, referred to already under Section 36 of the Guardians and Wards Act, 1890. The learned Subordinate Judge of Kancheepuram negatived these defences of the first defendant and decreed the suit for a sum of Rs. 10,930.91 with interest at six per cent per annum from 1st January 1963. It is against this judgment and decree the first defendant in the suit has preferred this appeal.

2. I have not referred to the other contentions as well as the facts on which the contentions were based for the simple reason that the learned Counsel for the appellant advanced only two arguments before me, both of them being said to be of a legal nature. The first argument is that under Section 3 of the Indian Majority Act, a guardian having been appointed for the first plaintiff, he attained majority only on the completion of 21 years, that in this case admittedly on the date when the plaint was presented, the first plaintiff had not completed the age of 21 and he was not represented by a next friend and that therefore the suit was not maintainable. The second is that Rajakotilingam Chettiar, when he Was appointed as guardian by this Court, had not executed any bond and that under those circumstances under Section 36 of the Guardians and Wards Act, 1890, the suit, if at all, could have been instituted only with the leave of the High Court which appointed the guardian and that such leave not having been obtained, the suit was incompetent.

3. I shall now deal with the two contentions. I have already referred to the fact that the first plaintiff was born on 6th December, 1948 and Rajakotilingam Chettiar was appointed as the guardian for his property in O.P. No. 62 of 1949 by this Court. The suit itself was instituted on 1st February, 1968. Consequently, on the date when the suit was instituted, the first plaintiff, had completed the age of 18, but not completed the age of 21. Therefore, under the provisions of Section 3 of the Indian Majority Act of 1875, the first plaintiff was a minor on the date when the suit was instituted. The next question for consideration is what exactly is the consequence of the first plaintiff instituting the suit during such minority. The argument that appears to have been advanced before the trial Court was that on that ground, the suit should be dismissed. However, the learned trial Judge has pointed out that, though this point was raised by the appellant, before that point could be decided, the first plaintiff had attained majority by completing 21 years and continued the suit and that he was competent to do so. I am of the opinion that this conclusion of the trial Court is correct. Order 32 of the Code of Civil Procedure deals with suits by or against minors and persons of unsound mind. Rule 1 of the Order states that

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.

Under Rule 2(1)

where a suit is instituted by or on behalf of a minor, without a next friend, the defendant may apply to have the plaint taken off the file, with costs to e paid by the pleader or other person by whom it was presented.

Under Sub-rule (2) of Rule 2:

notice of such application shall be given to such person, and the Court, after hearing his objection (if any) may make such order in the matter as it thinks fit.

Admittedly, in this case, no application under Order 32, Rule 2, has been filed by the appellant for taking the plaint off the file. The above rule itself does not contemplate a suit instituted by such a minor plaintiff being dismissed on that ground. There is a difference between a suit being dismissed and a plaint being taken off the file, and all that Order 32, Rule 2(1) contemplates is a plaint being taken off the file on an application for the said purpose being made by the defendant. It is true the Courts have made a distinction between two classes of suits instituted by a minor, one knowing-that he was a minor and he was incompetent to institute a suit without the next friend and yet filing a suit with a view to deceive the Court or with some ulterior purpose, and the other, a minor filing the suit without knowing or realising his minority and in the former case the suit being dismissed and in the latter case the plaint being taken off the file. As far as the present case is concerned, it is not even the case of the appellant herein that the fist plaintiff instituted the suit with the knowledge that he was a minor and was incompetent to institute the suit without a next friend and that he did so with some ulterior purpose. As I pointed out already, he had already completed the age of 18, but had not completed the age of 21 and the period of minority gets enlarged only under the special provisions of the Indian Majority Act, 1875, in a case where the guardian has been appointed by the Court. Therefore, the present is not a suit where the first plaintiff instituted the same with the full knowledge that he was a minor and he was incompetent to institute the same without a next friend and he instituted the suit with ulterior motives. Therefore, the suit instituted by the first plaintiff could not have been dismissed. If at all, the plaint presented could have been taken off the file if the appellants had preferred an application for such a purpose under Order 32, Rule 2(1). Therefore, in this case, it is not open to the appellant to contend that the trial Court should have dismissed the suit on the ground mentioned above. Assuming that even without the application on the part of the appellant herein, the plaint should have been taken off the file, since the suit was continued by the first plaintiff after his attaining majority, there is no difficulty in treating the proceedings before the trial Court as if the plaint was taken off the file of the Court, but subsequently represented after the first plaintiff attained majority and the suit was continued thereafter and there is no impediment to so treating the proceedings because the appellant will not be damnified or prejudiced by such a conclusion since the question of limitation does not arise. Therefore, I am of the view that the conclusion of the trial Court that because of the first plaintiff attaining majority during the pendency of the suit, the suit could be continued by him and validly disposed of according to law, is correct.

4. The second point urged by the learned Counsel for the appellant, as I pointed out already, is based upon Section 36(1) of the Guardians and Wards Act, 1890.

That provision states:

Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person, with the leave of the Court may, as next friend, at any time during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representatives, for an account of what the guardian has received in respect of the property of the ward and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representatives, as the case may be.

I am of opinion that this statutory prevision has no application to the present case. In the first place, the said provision itself contemplates a person as next friend fling a suit on behalf of the minor against the guardian or his representatives for an account and it does not actually deal with a suit filed by a quandom minor against his erstwhile guardian or his legal representatives. I have already indicated in dealing with the first point that the plaint presented by the first plaintiff could have been considered as having been taken off the file and then re-presented and pursued after he attained majority. To such a situation, Section 36(1) will have no application and therefore the contention of the learned Counsel for the appellant that the suit instituted by the first plaintiff without obtaining the leave of the High Court which appointed Rajakotilingam Chettiar as the property guardian of the first plaintiff will have to fail, cannot be sustained.

5. No other point was urged before me Accordingly the appeal fails and it is dismissed. Having regard to the fair stand taken by the learned Counsel for the appellant by confining himself to the two points mentioned above, I am not ordering any costs against the appellant.


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