Abdul Samad v. Rasheedha and Rayisha Fathima (minor)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** **CRP.No. 143 of 2017 () -----------------------** **AGAINST THE ORDER DATED 2-3-2017 PASSED IN E.P NO.101/2016 IN FDIA NO.3305/2009 IN O.S NO.229/2007 ON THE FILE OF MUNSIFF'S COURT, CHITTUR.** ## **REVISION PETITIONER/RESPONDENT/TITLE HOLDER.:** ## **--------------------------------------------** **ABDUL SAMAD, S/O ABDUL ASEES, CHINNAMOOLATHARA, VANNAMADA POST, KOZHIPATHY VILLAGE,\ CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.SAJAN VARGHEESE K.** ## **RESPONDENTS/PETITIONERS/DECREE HOLDER.:** **--------------------------------------** **1. RASHEEDHA, W/O KAMALBACHA, CHINNAMOOLATHARA, KOZHIPATHY VILLAGE, VANNAMADA POST, CHITTUR TALUK.** **2. RAYISHA FATHIMA (MINOR), D/O KAMALBACHA, CHINNAMOOLATHARA, KOZHIPATHY VILLAGE, VANNAMADA POST, CHITTUR TALUK,** **(REPRESENTED BY HER MOTHER & GUARDIAN RASHEEDHA THE RESPONDENT NO.1 HEREIN)** **R1&2 BY ADVS. SRI.K.MOHANAKANNAN & SMT.A.R.PRAVITHA.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** **'C.R'** ## **A. HARIPRASAD, J.** ## **------------------------------C.R.P No.143 of 2017** ## **---------------------------------------------Dated this the 12[th] day of June, 2017** ## **O R D E R** This revision petition is directed against an Order passed by the executing court on a petition for effecting delivery of property pursuant to a final decree passed in a suit for partition. 2. Heard the learned counsel for the contesting parties. 3. In a suit for partition filed by the respondents against one Najumuneesa, the sole defendant, a preliminary decree was passed on 30-09-2009 directing to divide the properties into metes and bounds. Later, the respondents filed a final decree application and an order was passed thereon on 30-05-2014, allotting separate portions of the properties to the parties. Subsequently, the original defendant assigned her rights to the revision petitioner, who was impleaded as **C.R.P No.143 of 2017 2** respondent in the execution petition. It is the contention of the revision petitioner that since the second respondent was a minor at the inception of the suit and continued to be so even at the time of passing a final decree, the first respondent (mother of the minor) could not have acted as legal guardian of the second respondent on the basis of the prescriptions under Mohamedan Law. For that sole reason, the execution petition is not maintainable in law. According to the revision petitioner, the first respondent is not competent to represent the minor second respondent under the personal law applicable to the parties. In the absence of any guardian appointed for the minor second respondent, the execution petition is liable to be dismissed. 4. The executing court rightly repelled this contention. Hence this revision petition questioning some basic legal tenets. 5. Learned counsel for the revision petitioner argued with reference to _**Mulla's Principles of Mohamedan Law**_ that legal guardians of the property of a Muslim minor are (1) the father (2) **C.R.P No.143 of 2017 3** the executor appointed by the father's Will (3) the father's father and (4) the executor appointed by the Will of the father's father. It is also contended that mother is only a defacto guardian of the Muslim minor. It is a well settled principle of _**Mohamedan Law**_ that a defacto guardian has no power to transfer any right or interest in the immovable property of a minor. This proposition has been eminently enunciated for the first time in _**Imambandi v. Mutsaddi**_ (( _**1918) 45 I.A 73**_ ). Thereafter, the Supreme Court in _**Mohd.Amin and others v. Vakil Ahmad and others (A.I.R 1952 S.C 358)**_ unequivocally declared the law in the following terms : _“Under the Muhammadan Law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a “defacto guardian”, has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant.”_ 6. The court went to the extend of laying down thus : - _“A deed of settlement which is thus void qua_ **C.R.P No.143 of 2017 4** _the minor is void altogether qua all the parties including those who were sui juris._ ” 7. Fact that the persons mentioned above are the legal guardians of a Muslim minor is beyond any pale of dispute. Further, mother of a Muslim minor is only a defacto guardian and that she is incompetent to deal with any immovable property of the minor are unchallengeable propositions. But those principles are applicable only to private alienations. It will not have any impact on a decree passed in a properly instituted suit. In the given case, the legal question is entirely different. None of the above mentioned Mohamedan Law principles applies to the case in hand as the situation is totally different. 8. The suit was filed against the assignor of the revision petitioner by the first respondent in her personal right as a sharer as well as in the capacity as next friend of her minor child, who is also a sharer. Nobody can dispute the proposition that the provisions in the Code of Civil Procedure, 1908 ( in short 'the Code') and **C.R.P No.143 of 2017 5** especially the provisions in Order XXXII of the Code are secular in nature. In other words, the provisions therein apply to all the parties to a suit or proceeding, irrespective of their personal law prescriptions. Rule 1 of Order XXXII of the Code is extracted hereunder for clarity : _**R.1. Minor to sue by next friend** .- 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._ _**Explanation.** - In this Order, “minor” means a person” who has not attained his majority withinin the meaning of section 3 of the Indian Majority Act, 1875, where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter._ 9. The expression 'minor' as defined in Section 3 of the Indian Majority Act, 1875, yet another secular enactment, means every person domiciled in India, who has not completed the age of 18 years. In the case, however, of a minor of whose person or **C.R.P No.143 of 2017 6** property a guardian has been appointed by a court of justice or whose property is under the superintendence of a Court of Wards, the age of majority is deemed to have been attained on the minor completing his age of 21 years. Nobody has any case that such a contingency arises in this case. Therefore, it has to be taken that the minor envisaged herein is a person who has not completed the age of 18 years. 10. Most pertinent aspect to be noted here is that a person, who takes steps in a suit on behalf of a minor, automatically constitutes himself the next friend of the minor. An order of the court, as in the case of a guardian _ad litem_ for a minor defendant, is not necessary for that purpose. Stated more precisely, a person filing suit as the next friend of a minor takes up the responsibility of fighting out the cause of the minor voluntarily and no formal order of appointment as next friend by the court is required. This principle has been enunciated in a legion of judicial pronouncements. 11. Another relevant provision in Order XXXII of the Code **C.R.P No.143 of 2017 7** is Rule 4. It is extracted hereunder for profit : ## _**R.4. Who may act as next friend or be appointed**_ _**guardian for the suit.-** (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit :_ _Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant or, in the case of a guardian for the suit, a plaintiff._ _(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be._ _(3) No person shall without his consent in writing be appointed guardian for the suit._ _(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian and_ **C.R.P No.143 of 2017 8** _may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested, or out of the property of the minor and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require._ 12. This Rule deals with the question as to who can act as next friend for a minor plaintiff or be appointed as guardian of a minor defendant. The general rule embodied in the provision is that any person who has a sound mind and has attained majority may so act as next friend or be so appointed as guardian, provided his interests are not adverse to that of the minor. 13. Contextually, I may also refer to Rule 212 of the Civil Rules of Practice, Kerala which reads as follows : ## _“_ _**212. Plaint or original petition on behalf of a**_ _**minor** .- When a plaint or original petition is presented by a person as the next friend of a_ **C.R.P No.143 of 2017 9** _plaintiff or petitioner, who is a minor or under disability, he shall also file an affidavit by a disinterested person that the next friend has no interest, direct or indirect, in the subject matter of the suit or matter adverse to that of the plaintiff or petitioner, that he is not a defendant or respondent in the suit or matter, and that he is a fit and proper person to act as next friend.”_ 14. Upshot of the above discussion is that the person representing a minor in a suit as next friend comes forward to initiate an action on behalf of the minor and he takes up the responsibility of prosecuting the case for the minor. No formal appointment of a next friend by the court is warranted. But in the case of a guardian for a minor defendant, a formal appointment is required as per Order XXXII Rule 4 of the Code. It is also clear from the provision that if a minor has a guardian appointed or declared by a competent authority, no person other than such guardian shall act as next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be **C.R.P No.143 of 2017 10** recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be. 15. But in this case, none of the parties have a contention that a competent authority has appointed a guardian for the second respondent. That apart, neither the revision petitioner nor the original defendant has ever challenged the competence of the first respondent in acting as next friend of the minor second respondent. Therefore, it is very clear that the challenge now made before the executing court is totally unsustainable. 16. Legal principle that powers of a person accepted by the court as next friend of a minor plaintiff or appointed as guardian _ad litem_ of a minor defendant is only limited to that legal proceedings and not beyond is well settled. The mandates in the personal law regarding competency of a natural guardian or a legal guardian or a defacto guardian are in the realm of private dealings in respect of minor's property. The personal law principles have no significance or application in a matter falling within the ambit of Order XXXII of **C.R.P No.143 of 2017 11** the Code, where the authority of the next friend or the guardian _ad litem_ is recognized by the court only for the purpose of that suit. However, a decree validly passed in such a suit by a competent court binds the parties and their successors-in-interest and cannot be set aside or ignored on the basis of the personal law principles applicable to the parties. Therefore, the contention raised by the revision petitioner is unacceptable viewing from any angle. 17. _**In Narain Singh v. Sapurna Kuer and other (AIR 1968 Patna 318),**_ the High Court has correctly and clearly held that a next friend can be any person and he need not necessarily be any of the guardians enumerated in the personal law applicable to the parties. The proposition that powers of a person accepted by the court either as next friend or as guardian of the minor is only limited to that legal proceedings and not beyond has also been reiterated. 18. Legal principle that a formal order of appointment as next friend of a minor plaintiff is unnecessary and all that is required is only to intimate the Court that the next friend is safeguarding the **C.R.P No.143 of 2017 12** interest of the incapable plaintiff in the action is unchallengeable. ( See _**Akku Amma and Others v. Kunhi Raman Nair and Others - 1963 KLJ 39**_ ) 19. Therefore, I have no hesitation to hold that the challenge against the decree as above arises from a misconception of law having no legal basis. In the result, the revision petition is dismissed confirming the order passed by the executing court. Sd/- **A. HARIPRASAD** **amk** **JUDGE** //True copy// P.A to Judge