LEKSHMI Vs. PADMANABHAN NADAR

JUDGEMENT

(1.) It is a little surprising how both the lower courts have reached the conclusion they have come to; and I am afraid I will have to set aside their decision.

(2.) The admitted facts are that the appellant is the daughter of the first respondent by his first wife; that the first respondent settled the suit properties on his first wife and children to be born to her reserving a life interest in him; that the first wife died leaving the appellant, her only daughter; that the first respondent married a second time and begot some of the other respondents; that he thereafter settled some of the suit items on his children by the second wife and sold some other items to the other respondents including his brother; that a Samuel Nadar instituted O. S. No. 62 of 1950 as the next friend of the appellant while she was a minor; that Samuel Nadar reported to the court that the appellant became a major; and that the court thereafter dismissed the said suit for non prosecution without issuing notice to the appellant. (Though there was dispute before the lower courts that the appellant was the daughter of the first respondent by his first wife, since both the lower courts have concurrently held that she is the daughter, that contention is no more pressed. There is also no dispute that under the settlement deed the first respondent has only a life estate and the absolute estate vests in the appellant). The lower courts have held that O. S. No. 62 of 1950 is res judicata under O. IX R.9 of the Code of Civil Procedure; and the sole question for decision is whether that conclusion is right.

(3.) The lower courts have observed that on the appellant attaining majority the next friend became functus officio; and that the court was not bound to issue notice to the appellant before it dismissed O. S. No. 62 of 1950 for non prosecution. The case of the appellant is that Samuel Nadar who filed that suit was a fictitious person. The description of Samuel Nadar in that suit was that he was the karanavan (head of the family) of the appellant; but, there is no evidence to show how he was the karanavan. However, in the cross examination of the appellant it has been brought out that Samuel Nadar is alive, so that he is not a fictitious person. The lower courts say that for a person to act as the next friend of a minor the person need not be a relation of the minor. That is so, and any person who has no interest adverse to that of the minor can act as the minor's next friend and bring a suit to protect the minor's interests. The law is clear that it tries to protect the interests of a minor. Even if no action is taken during the minority of a person, the minor's rights do not get barred; and the minor gets a longer period of limitation to bring a suit after he attains majority. If, however, a good friend or a good Samaritan takes the responsibility of bringing a suit as the next friend, he cannot just report to the court that the minor has become a major and withdraw from the suit. If he wants to withdraw while the minor is still a minor, he has to procure a fit person in his place to continue the suit (vide O. XXXII R.8). Similarly, if the minor after attaining majority establishes that the suit brought by the next friend was an unreasonable and an improper one, the next friend has to pay the costs (vide O. XXXII R.14). Again, if the next friend has to be discharged and the minor has to proceed with the suit, the discharge of the next friend can be ordered only after notice to the next friend [vide O. XXXII R.12(5)].