Sharanappa vs Yellamma

K.A. Swami, J.—One and the only question raised by Sri. Shivaraj Patil, learned Counsel for the appellant is that in the presence of the natural guardian the suit filed on behalf of the minor by next friend is not maintainable. Therefore, the Court below ought to have dismissed the suit as not maintainable.

It is not possible to accept this contention. This is not a proceeding under the Hindu Minority and Guardianship Act. The suit is filed u/s 26 read with Order 7 of the CPC (for short the ''Code''). There is a specific provision Order 32 of the Code for appointment of Guardian or next friend for the minor in the suit. The provisions contained in Order 32 Rules 1 to 4 make it clear that there is a discretion vested in the Court to appoint the natural guardian or any other person as guardian or next friend of the minor as guardian-ad-litem. In addition to this any irregularity in the matter of appointment of next friend or guardian unless it is demonstrated that it has caused prejudice to the minor does not vitiate the proceeding. In the instant case the decree is passed in favour of the minor. It is not the minor who is making this grievance. It is the alienee, against whom the decree is passed, who is making this grievance. The appointment of the next friend under the provisions of Order 32 C.P. Code does not in any way affect the power of the natural guardian either under the Hindu Minority and Guardianship Act or under Hindu Law. The decree passed against the interest of the minor is voidable as against the minor and it is avoidable by him on proof of gross negligence or misconduct, fraud or misrepresentation on the part of the guardian or next friend of the minor. This ground is not available to other parties to the suit. The minor plaintiff has attained majority long back when the appeal was pending before the lower appellate Court. She has chosen to proceed with the appeal and as such she has not made any grievance. Moreover, the decree is in her favour. Hence, the contention is without substance. That being so, it is not possible to hold that the suit is not maintainable having regard to the fact that the minor plaintiff is permitted to be represented by the next friend and not by the natural guardian.

It is also brought to the notice of this Court that the suit is filed for cancellation of the sale deed - Exhibit P. 1 and the Court below has also held that the sale deed is cancelled in respect of the share of the plaintiff. It is submitted that there is no question of cancellation of the sale deed when the same is binding on the share of the mother of the plaintiff. The learned Counsel is justified in making this grievance. The proper wording of the decree ought to have been to declare the sale deed Exhibit P. 1 as not binding on the share of the plaintiff. No doubt there is no such specific relief prayed for in the plaint but the prayer for cancellation of the sale deed being larger one, it is deemed to include a smaller relief of declaration that the sale deed is not binding on the half share of the plaintiff. Such a relief is based on the same cause of action and is consistent with the conclusion arrived at by the Court below. That being the position, the decree passed by the trial Court and confirmed by the lower appellate Court has to be read accordingly. For this purpose it is not necessary to issue notice to the respondent because the decree substantially remains the same. The relief granted under the decree is not going to be affected in any manner. Accordingly, it is ordered and clarified, that the following sentence occurring in the operative portion of the Judgment and also in the decree of the trial Court "the sale deed executed and registered on 5-2-1980 at Deed No. 1490/69-70 is cancelled to the extent of half share of the plaintiff" should be read and construed as follows; "It is declared that the sale Deed executed and registered on 5-2-1980 at Deed No. 1490/69-70 is not binding on the plaintiff to the extent of her half share."

Subject to this clarification the appeal is dismissed. In all other respects the decree passed by the trial Court and confirmed by the lower appellate Court stands unaltered and affirmed.