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A PROJECT REPORT

ON

SUIT BY OR AGAINST MINOR

BBA-LLB 3th SEMESTER

Session 2016-2021

Submitted to: Submitted by:

ASSN PROFF. SHRUTI SHARMA

MRS.DEEPSHIKHA REG NO.46116210006


DECLARATION

I , Shruti Sharma student of SRM University ,Haryana ;hereby declare that the project work
entitled is a record of an original work SUIT BY OR AGAINST MINORt submitted to the
Law Department is a record of an original work done by me under guidance of Ms.Deepshikha.

I further declare that the work reported is this project has not been submitted and will not be
submitted, either in part or in full. This project work is my own work. The matter embodied in
this project report has not been submitted to any other University or Institution for the award of
degree. This project has not been presented in this manner earlier. This information is purely of
my academic intrest.
Certificate

This is to certify that Shruti Sharma of BBA-LLB of SRM University has successfully carried
out investigatory project SUIT BY OR AGAINST MINOR under the supervision of Ms.
Deepshikha.

All the works related to the project is done by the candidate herself. The approach towards the
subject has been sincere.

The original research work was carried out by her under my supervision. On the basis of the
declaration made by her, I recommend this project report for evaluation.

Ms. Deepshikha

ASSISTANT PROFF.
ACKNOWLEDGMENT

It feels great pleasure in submitting this project to Mrs. Deepshikha, Professor


(Department of Law), without whose guidance this project would not have been completed
successfully. Last but not the least, I would like to express my heartfelt gratitude
towards my friends, who guided me and helped me at every possible step.

Words put on paper are mere ink marks, but when they have a purpose there exist a thought
behind them. I too have a purpose to express my gratitude towards my teacher without her
guidance the project would not have been possible.

Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

SHRUTI SHARMA

BBA-LLB(3rd semester)
TABLE OF CONTENTS

1. DECLARATION-----------------------------------------------------i
2. CERTIFICATE-----------------------------------------------------------ii
3. ACKNOWLEDGEMENT---------------------------------------------------iii
4. INTRODUCTION
5. PROCEDURE OF SUITS BY MINOR
6. SUITS BY AGAINST MINOR AND GUARDIAN AD LITEM
6.1 RELEVENT PROVISION
6.2 OBJECT TO HAVING NEXT FRIEND OR GUARDIAN AD-LITEM
6.3NEXT FRIEND
6.4GUARDIAN AD-LIREM
6.5MANNER IN WHICH SUIT AGAINST BY MINOR IS INSTITUTED
6.6MODE OF MAKING APPOINTMENT
6.7VERIFICATION BY AFFIDAVIT
6.8NOTICE TO THE GUARDIAN
6.9PERSON WHO CAN BE APPOINTED AS GUARDIAN
6.10 CONSENT OF THE GUARDIAN APPOINTED
7. CONCLUSION
INTRODUCTION

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
the Court of Wards the age of majority is completion of 21 years. (S. 3, Indian Majority Act,
1875).
Explanation 1 to R. 1 of O. 32 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 cls. (a) and (b) of S. 2 of that Act or to any other
matters.

Clauses (a) and (b) of Section 2 of the Indian Majority Act, 1875, lay down that nothing
contained shall affect(a) the capacity of any person to act in the following matters, (namely),
marriage, dower, divorce and adoption; (b) the religion or religious rites and usages of any
class of citizens of India.
Procedure for suits by a minor:

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. [O. 32, R. 1]. 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.

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 off other person by whom it was presented.
[O. 32, R. 2].

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. (O. 32, R. 2-A).

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.

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.

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 in any appellate or revisional court and any proceedings in any
execution of a decree. (O. 32, R. 3).

Where the interest of the next friend is adverse to that of the minor or where he is connected with
a defendant whose interest is adverse to that of the minor, or where 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 is allowed to retire by the court, and the court may appoint a new
guardian in his place. (O. 32, R. 9).

Where the minor plaintiff attains majority, he may elect to proceed with the suit 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 a minor by C.D., his next friend but now having attained majority.

Where he elects to abandon the suit, he shall, if sole plaintiffs apply for an order to dismiss the
suit in repayment of the costs incurred by the defendant or which may have been paid by his next
friend. (O. 32, R. 12).

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. (O. 32, R. 14).

All the above rules equally apply to persons adjudged to be of unsound mind.
Suit against Minor and Guardian Ad Litem

The principle is that minor cannot sue and cannot be sued. Therefore, it has been made
compulsory that minor plaintiff and defendant should be represented by proper and fit person in
some litigation. When some suit is to be instituted by minor plaintiff, such suit is instituted in
minor plaintiffs name by his next friend. Similarly when some suit is instituted against minor
defendant, guardian for suit is appointed for such minor defendant and such guardian is called
guardian ad litem.

Relevant Provision
s
Following are the relevant provisions regarding manner in which suit against minor can be
instituted.
Order 32 Rule 1, 3, 4 of Civil Procedure Code.

. Object of having next Friend or Guardian Ad-Litem

A minor is deemed incapable of prosecuting or defending a suit himself, it is necessary that his
interest in the suit should be watched by an adult person. Such person is, in the case of a minor
plaintiff called his next-friend and in the case of a minor defendant his guardian ad-litem or
guardian for the suit.

Next Friend
The person, who represents a minor plaintiff in a suit or proceeding, is called next friend of the
minor.
Guardian Ad-Litem
Where the defendant is minor, that Court, on being satisfied by the fact of his minority, shall
appoint a proper person to be guardian for the suit for such minor.

Manner in which suit against Minor can be instituted


A suit against minor can be instituted through his guardian appointed by the Court i.e guardian
ad-litem.

Mode of making appointment


The appointment of a guardian is made by the court either

a. Application by Plaintiff

It is the duty of the plaintiff to apply for the appointment of minor defendants guardian.

i. List furnished by plaintiff

The plaintiff shall file with his plaint a list of relatives of minor and other person who can be
appointed as guardian and such list shall constitute an application by the plaintiff.

ii. Application by Defendant

A guardian may be appointed by the court where the defendant pleads minority. Where the fact
of minority is disputed it is the court who shall determine it.

Verification by Affidavit
Any application whether it is made by plaintiff, or by defendant or a list furnished by plaintiff
must be supported by an affidavit, verifying the fact that the proposed guardian has no interest in
the suit adverse to that of a minor and that he is a fit person to be appointed.

Notice to the Guardian

Before appointing a guardian court must serve a notice to the minor as well as to the natural
guardian of the minor or father or guardian appointed by competent authority or person in whose
care the minor is as the case may be.

Person who can be appointed as Guardian


Following person can be appointed as guardian ad-litem of the minor.

a. Any mature and sound person

Generally any person of sound mind who has been of 18 years or above may be appointed as a
guardian.

Exceptions

i. A plaintiff cannot be appointed as a guardian of the minor.

ii. A person whose interest is adverse to that of minor cannot be appointed as guardian.

b. Guardian appointed by competent authority

where minor has guardian appointed or declared by competent authority than such person shall
act as guardian for the suit.

Exception

Court may appoint any other person for reasons to be recorded if it considers that it in the interest
and welfare of minor.
c. Relative of the Minor

Where no guardian appointed by competent authority than the court may appoint a relative of the
minor as his guardian for the suit.

d. Co-defendant

Where minor has also co-defendants court shall appoint any of the co-defendants as his guardian
if no near relative of the minor is found.

e. Pleader of the Court

Any person or pleader of the court may be appointed as a guardian for the suit but he will be
appointed only, where there is no other person fit and willing to act as such.

Consent of the Guardian Appointed


Court cannot appoint any person as guardian without his consent and such consent may be
presumed by the court unless it is expressly refused.
Conclusion

To conclude, that according to law minor is a person, under legal disability he cannot sue and be
sued in his own name. A usit against minor can only be filed through his guardian appointed by
the court which is mandatory is nto considered to be a party to the suit, unless he is represented
by guardian party ad-litem and any decree obtained against minor defendant guardian is nullity
in the eye of law.