Suits by and against Minors and
Persons of Unsound Mind
Aishwarya G Rao 132304045 SLOT D
Introduction
● Chapter 7 of CPC, Order 32, Rules 1 to 16 deals with “Suits by or
against minors and persons of unsound mind”
● Order 32 has been specially enacted to protect the interests of minors
and persons of unsound mind to ensure that they are equally represented
in civil suits or proceedings.
● Order 32 consists of a total of 16 rules, each describing the scope and
nature of the rights and liabilities of the person party to the suits and
proceedings.
● This originated through Common Law, wherein persons who are unable
to understand the nature and consequences of their actions ought not to
be liable for their actions so undertaken.
● This legal position stands firm even today except where his status is that
as a cestui que trust.
Suits by and Against Minors
● Definition of Minor: As per Section 3 of the Majority Act of 1875, a minor is a person who has
not attained a majority, that is, who has not attained the age of 18 years.
● Rule 1 of Order 32 provides that every suit shall be instituted in the name of the minor by the
‘next friend’ of the minor.
● In the case of a minor for whose person or property a guardian is appointed by the court or
whose property is under the superintendence of the court of wards, the age of attaining majority
is 21 years.
● A deity is not a minor under this definition, and this Rule does not apply to the suits filed on
behalf of or against the deity.
● The guardian or next friend appointed under Order 32 of the CPC is purely temporary in nature,
that is, specifically for representing in a particular suit, unlike the guardian appointed under
Section 4(b) of Hindu Minority and Guardianship Act.
● The law regards any act done by a minor person and a major person to be on equal footing, but
only in the case where a guardian is appointed.
● Rule 12 & 13: As soon as the minor reaches majority while the suit or appeal on their behalf is
pending, the court has an obligation to summon the minor and inquire about whether they would
like the suit or appeal to continue.
Concept of the Next Friend
● Rule 1 of Order 32 provides that every suit shall be instituted in the name of the minor by the ‘next
friend’ of the minor.
● The suit will be filed in the name of the minor, but the appointment of a guardian ad litem is a
mandatory condition.
● A person is called a "next friend" when the minor is the plaintiff in an action, and is called a "guardian
ad litem" when the minor is a defendant.
● The ‘next friend’ is any person who has attained majority and is in some way related to the minor so as
to ascertain his/her interests, who will act on behalf of the minor in suits or proceedings before the court
and, in a bonafide manner, represent his/her interests.
● Rule 8 provides the procedure for the retirement of the next friend, and states that he is not allowed to
take retirement unless certain conditions are fulfilled, while Rule 11 deals with the same for the
guardian.
● Rule 9 provides the circumstances in which the next friend can be removed by the application made on
behalf of the minor, by the defendant, or by the guardian.
● State of Rajasthan v. R.D. Singh (1972): it was held that a minor suing through one next friend cannot
sue through another next friend in another case, nor can he/she sue for the same cause after attaining a
majority. However, the court is empowered to appoint a next friend during the pendency of the suit.
Suits by and Against Persons of Unsound Mind
● Definition of Unsound Mind: As per Section 12 of the Indian Contract Act, 1872, a
person of sound mind is a person who is capable of understanding and forming a
rational judgment as to its effect on his/her interests.
● Similarly, in Section 84 of the Indian Penal Code, 1860, a person of unsound mind is
a person who, by reason of unsoundness of mind, is not able to know the nature and
consequence of his/her act, whether it is right or wrong.
● Rule 1 of Order 32 provides that every suit shall be instituted in the name of the
person of unsound mind by the ‘next friend’ of the person of unsound mind.
● Rules 01-14 are for those who are determined to be of unsound mind or incapable of
defending their interests because of a mental illness.
● By guaranteeing that their interests are protected in court proceedings, this rule
expands the protections afforded to minors to include individuals who are mentally
ill.
Concept of the Next Friend
● Rule 1 of Order 32 provides that every suit shall be instituted in the name of the minor by the ‘next
friend’ of the minor.
● The suit will be filed in the name of the minor, but the appointment of a guardian ad litem is a
mandatory condition.
● A person is called a "next friend" when the minor is the plaintiff in an action, and is called a "guardian
ad litem" when the minor is a defendant.
● The ‘next friend’ is any person who has attained majority and is in some way related to the minor so as
to ascertain his/her interests, who will act on behalf of the minor in suits or proceedings before the court
and, in a bonafide manner, represent his/her interests.
● Rule 8 provides the procedure for the retirement of the next friend, and states that he is not allowed to
take retirement unless certain conditions are fulfilled, while Rule 11 deals with the same for the
guardian.
● Rule 9 provides the circumstances in which the next friend can be removed by the application made on
behalf of the minor, by the defendant, or by the guardian.
● State of Rajasthan v. R.D. Singh (1972): it was held that a minor suing through one next friend cannot
sue through another next friend in another case, nor can he/she sue for the same cause after attaining a
majority. However, the court is empowered to appoint a next friend during the pendency of the suit.
Thank You!
Aishwarya G Rao 132304045
