Suits by or Against Minors and Persons of Unsound Mind (Order XXXII)

Order XXXII of the Code of Civil Procedure, 1908 sets out the procedure for suits by or against minors and persons of unsound mind. The premise is straightforward: a minor or a person of unsound mind is, in the eye of the law, of immature intelligence and understanding, and no act prejudicial to his interests should bind him without the protection of the court. Ram Chandra v. Man Singh AIR 1968 confirmed the principle. The Order operationalises it through two procedural devices — the next friend, who institutes the suit on behalf of a minor plaintiff, and the guardian ad litem, who defends the suit on behalf of a minor defendant. M Mathai v. General Manager, KSRTC AIR 1990 added that the framework reflects principles of natural justice, equity and good conscience — it allows litigation to be prosecuted or defended on behalf of persons under disability without compromising the court's adjudicative function.

For the judiciary aspirant, sixteen rules sit inside Order XXXII, divisible into four blocks. Rules 1 to 4 set up institution, appointment and fitness. Rules 5 to 11 govern the conduct of the suit — applications, receipts of decree money, compromise, retirement, removal. Rules 12 to 14 work through the consequences of a minor attaining majority during the suit. Rule 15 transposes the entire scheme onto persons of unsound mind. Rule 16 saves foreign-state immunities and local lunacy laws. The 1976 amendment inserted the Explanation to Rule 1 incorporating the Indian Majority Act 1875, the new Rule 2A on security, and Rule 3A on the prejudice test for setting aside a decree against a represented minor. Mastery of the Order requires holding three principles in view at once: the imperative character of Rule 3, the prejudice limit in Rule 3A, and the leave-of-court requirement in Rule 7.

Policy rationale and the Indian Majority Act

Order XXXII is structured around the protective principle. A person of immature intelligence cannot be permitted to bind himself through litigation in the same way as an adult of sound mind. The Order accordingly imposes mandatory representation through an adult next friend or guardian ad litem, scrutinises the fitness of that representative through a statutory test of adverse interest, and reserves to the court a continuing supervisory role through Rules 5 to 11. The framework is procedural — neither the next friend nor the guardian ad litem is a party to the suit (Rup Chand v. Dasodha (1908)) — but the procedural shell is essential to the substantive validity of any decree against a person under disability.

The Explanation to Rule 1, inserted by the 1976 Amendment, settles the definition of minor by reference to Section 3 of the Indian Majority Act, 1875. The basic rule is 18 — every person domiciled in India who has not completed the age of 18 years is a minor. The exception is 21, applicable where a guardian of the minor's person or property has been appointed by a court of justice, or where the property is under the superintendence of a court of wards. The 1976 amendment ended an older controversy by holding that the Majority Act controls the definition for purposes of Order XXXII even where the suit is governed by personal law — the question of a Muslim minor girl who has attained puberty and seeks dissolution of marriage, on which the High Courts had divided in Ahmed Sulaiman v. Bai Farma and Najmunnisa Begum v. Sirajuddein Ahmed Khan, is now governed by the uniform Majority Act rule.

Order XXXII does not apply to a deity (Sri Sri Sridhar Jew v. Kanta Mohan (1945)) — a deity is a juristic person but not a perpetual minor. Nor does it apply to a ruler of a foreign state suing or being sued in the name of his state, by reason of Rule 16. But the rule applies to deaf-mutes by judicial extension under Rule 15, and the Kerala High Court has read mental infirmity broadly to include physical disabilities that affect cognitive capacity. The wider context of the Order's place in the Code is treated in the chapter on history, object and scheme of CPC; the related framework for parties is in the chapter on parties to suit under Order I.

Suit by a minor — Rules 1 and 2

Rule 1 directs that 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. The title of the suit follows a fixed form: AB, a minor, by his next friend CD v. XY. The next friend need not be a guardian appointed under any personal law — Section 4(b) of the Hindu Minority and Guardianship Act, 1956 does not control the next-friend procedure under the Code. The Supreme Court in Nagaiah v. Chowdamma (2018) settled the point: any person who is of sound mind, has attained majority, can represent and protect the interest of the minor, is resident in India and whose interest is not adverse to that of the minor may sue as next friend. The High Court there had misdirected itself by requiring the natural guardian under the Hindu Act to file the suit. Order XXXII rests on its own machinery, not on personal-law guardianship.

Rule 2 deals with the consequence of a suit instituted by a minor without a next friend. Sub-rule (1) authorises the defendant to apply to have the plaint taken off the file, with costs to be paid personally by the pleader or other person by whom it was presented. Sub-rule (2) requires the court to give notice and hear objections before making such an order. The provision is not punitive in design — its function is to cure an irregularity, not to non-suit a minor on a procedural defect. Bacchi Raj v. Sunder Mal AIR 1963 confirmed that the court is not bound to take the plaint off the file; it may allow time for proper representation. Amrutaben Budhaji Thakore v. Nitaben Somabhai Patel AIR 2003 extended the principle to a suit by a person of unsound mind: the suit is not to be dismissed but the plaint is to be taken off the file to enable the irregularity to be cured by appointment of a next friend.

The character of the defect — irregularity rather than nullity — emerges from GL Kapoor v. Ramesh Chander AIR 1973: the absence of a next friend can be waived by the conduct of the defendant who fails to raise the objection at the trial stage. The position contrasts sharply with the absence of a guardian ad litem on the defendant's side, which is fatal under Rule 3. Rule 2A, inserted in 1976, supplies the converse safeguard: the court may, at any stage, order the next friend to give security for costs likely to be incurred by the defendant. The Delhi High Court in Disha Sethi v. Chander Mohan Sethi AIR 2008 applied Rule 2A to a suit filed by a minor by indigent-person procedure, holding that while the minor's own indigency exempts the court-fees, the next-friend mother could be required to furnish security under Rule 2A.

Guardian ad litem — Rule 3 and Rule 3A

Rule 3(1) imposes an imperative duty: where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. The application may be made by the plaintiff or in the name and on behalf of the minor (sub-rule 2). The application must be supported by an affidavit verifying that the proposed guardian has no interest adverse to that of the minor and is a fit person (sub-rule 3). Sub-rule (4) requires notice — to any guardian appointed by competent authority, or, where there is no such guardian, to the father, then mother, then natural guardian, and failing those, the person in whose care the minor is. Sub-rule (5) makes the appointment continuous through the proceedings, including appellate, revisional and execution stages.

The consequence of non-compliance is severe. Daheshur v. Rewat (1897) and a steady line of cases hold that where a minor is sued without a guardian ad litem and a decree is passed against him, the decree is a nullity. It does not bind the minor and cannot be enforced. It does not operate as res judicata (Damu v. Vikrya (1920)). It can be disregarded without filing a suit to set it aside (Ramanathan Chettiar v. Palaniappa Chettiar (1934)). An ex parte decree against an unrepresented minor need not be set aside under Order IX Rule 13 — it is no decree at all (Ram Badan Rai v. Paltan Paswan AIR 1977). The Supreme Court reaffirmed the principle in Kauran Devi v. Amar Nath AIR 2007: where a co-mortgagee mother failed to appear and the minor children were not separately represented through a guardian ad litem, the order passed against them was void and illegal.

The position must be distinguished from substantial representation cases. Where the minor is represented but the appointment is procedurally defective — for instance, no formal order, or notice to a wrong person, or appointment of an officer of the court without inquiry — the decree binds the minor unless he can show that the defect of procedure has prejudiced him (Hitendra v. Sukhdeb (1929)). The line is between non-representation (decree void) and defective representation (decree binds unless prejudice shown).

Rule 3A, inserted in 1976, codifies the test for the represented-minor case where the guardian had an adverse interest. Sub-rule (1) provides that no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit had an interest adverse to that of the minor; but where, by reason of such adverse interest, prejudice has been caused to the interests of the minor, that shall be a ground for setting aside the decree. Sub-rule (2) preserves any other relief for misconduct or gross negligence resulting in prejudice. Rule 3A modifies the older Privy Council position in Rashid-un-nissa v. Mohammad Ismail (1909) — that a decree was a nullity wherever the guardian's interest was obviously adverse — by adding the prejudice requirement. The two-step test today is: adverse interest plus prejudice. Kameshwari Devi v. Barhani (1997) applied the test in a partition context.

Fitness of the next friend or guardian — Rule 4

Rule 4(1) supplies the qualifications for a next friend or guardian for the suit. The person must be of sound mind and must have attained majority. The proviso adds two negative requirements: the interest of such person must not be adverse to that of the minor, and the person must not be, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. The proviso codifies a structural conflict-of-interest rule — the protector cannot be the adversary.

The leading case on adverse interest remains Rashid-un-nissa v. Mohammad Ismail (1909) PC. A suit had been brought against the minor for declarations affecting her share in her father's estate; she was represented by her uncle, whose interest was obviously adverse — he stood to gain from the decree. The Privy Council set aside the decree on the ground that the appellant was never a party to the suit in the proper sense of the term. The High Courts of Madras (Sellappa Goundan v. Masa Naiken (1924)) and Allahabad (Chiranji Lal v. Syed Ilias Ali (1924)) extended the principle. The Bombay full bench in Mahadev Shankar v. Shankar Swamirao AIR 1943 narrowed it slightly — adverse interest does not automatically void the decree where the guardian was nonetheless able to defend competently. After 1976, Rule 3A regulates the position with the prejudice test.

Rule 4(2) gives priority to the guardian appointed by competent authority. Where a minor has such a guardian, no person other than that guardian shall act as next friend or be appointed his guardian for the suit, unless the court considers, for reasons recorded, that another person is more suitable for the minor's welfare. Budhilal v. Morarji (1907) held that a guardian appointed by a Hindu father under his will is not a guardian appointed by competent authority for these purposes; the rule contemplates a court-appointed or statutorily-appointed guardian. Drig Raj Kuer v. Amar Krishna Narain Singh (1960) is the converse case — where both parties were wards of the court of wards and the authority acting under the Court of Wards Act effected a compromise, the resulting decree was not open to attack on the ground of unsoundness of mind: the court of wards authority was the guardian under Rule 4.

Rule 4(3) requires the guardian's consent — in writing after 1976. A guardian who has not consented is no guardian at all, and the decree is invalid irrespective of any question of prejudice (Narsingh v. Sheikh Jaki (1912)). Rule 4(4) supplies the residual provision: where no other person is fit and willing, the court may appoint any of its officers, with directions on costs to be borne by parties or out of the minor's property. The chapter on recognised agents and pleaders under Order III bears on the position of a pleader appointed as guardian — he may be reimbursed from the estate or by direction of the court.

The Supreme Court in Fatima Abdul Rehman Omer v. Salem Moin Zafar AIR 2004 modernised one aspect of the fitness test — the older insistence that the next friend reside within India in close proximity to the suit no longer applies in absolute terms. There the next friend, the son of an old plaintiff of unsound mind, was resident outside India but appeared on every effective hearing date. The court held that in the changed scenario of shrinking global distances, residence outside India was not an automatic bar. Rajendra Kumar v. Deepak Makwana AIR 2008 settled another point: where a minor sues his father through the mother as next friend for an injunction restraining alienation, there is no clash of interest between mother and child, and the mother need not seek separate court permission to act as guardian.

Duties, receipts and compromise — Rules 5 to 7

Rule 5(1) requires that every application to the court on behalf of a minor — other than an application under Rule 10(2) — shall be made by his next friend or by his guardian for the suit. Sub-rule (2) supplies the sanction: every order in or by which a minor is concerned, made without representation, may be discharged, with costs to be paid by the pleader who knew or ought to have known of the minority. The discretion to discharge is cabined by the welfare of the minor: where the order benefits the minor, the court will not exercise the power (Chander Bhan Singh v. Lallu Singh 1947).

Rule 6 requires the leave of the court before the next friend or guardian can receive any money or other movable property on behalf of the minor — whether by compromise before decree or under a decree or order. Where the next friend or guardian is not the appointed or declared guardian of the property of the minor, sub-rule (2) requires the court to take security and give such directions as will sufficiently protect the property from waste. The 1976 amendment added a proviso dispensing with security where the next friend is the manager of a Hindu undivided family and the decree relates to family property, or is the parent of the minor. The Privy Council in Jitendra Nath Roy v. Samarendra Nath AIR 1943 narrowed the operative scope of Rule 6 — leave is necessary only where the next friend directly receives money from the judgment-debtor; an assignment of the decree to a third person does not require leave.

Rule 7 is the most heavily litigated provision in the Order. Sub-rule (1) provides that no next friend or guardian shall, without the leave of the court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit. Sub-rule (1A) — inserted in 1976 — requires the application for leave to be supported by an affidavit of the next friend or guardian and, where the minor is represented by a pleader, by a certificate of the pleader to the effect that the proposed compromise is for the benefit of the minor; the proviso confirms that the affidavit and certificate do not preclude the court from independently examining the compromise. Sub-rule (2) supplies the consequence of non-compliance: any agreement or compromise entered into without leave so recorded shall be voidable against all parties other than the minor.

The classic statement of the procedure under Rule 7 is in Manohar Lal v. Jadunath Singh (1906): the court must (i) receive an application for leave that specifies that the compromise is on behalf of the minor and sets out the terms, (ii) be supported by affidavit and pleader's certificate, (iii) exercise a judicial discretion as to the propriety of the compromise in the interests of the minor, and (iv) record an order showing that leave has been granted. Leave must be express, not implied. The mere passing of a compromise decree does not signify sanction (Aksing v. Durjan Singh 1952). A compromise will be deemed beneficial to the minor where it secures a demonstrable advantage or averts an obvious mischief (Sakinbai v. Shrinibai (1920)). A pleader's certificate is according to ordinary practice sufficient evidence of benefit, but is not conclusive — the court retains independent power to refuse permission.

Rule 7 applies to compromises in execution proceedings as well — execution is a continuation of the suit, and the next friend or guardian cannot adjust a decree without the court's sanction (Bhushayya v. Ramakrishnayya (1963)). But the rule does not extend to mere procedural steps that do not affect the rights or liabilities ascertained by the decree — adjournments of sale, waiver of fresh proclamation, reduction of upset price. A compromise sanctioned under Rule 7 may still be set aside if entered into under misapprehension of a material fact, on the principle of Section 20 of the Indian Contract Act 1872. The chapter on withdrawal and adjustment of suits under Order XXIII works through the consent-decree machinery in detail.

Retirement, removal and stay — Rules 8 to 11

Rule 8 governs the retirement of a next friend. Unless otherwise ordered, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred. The application for the appointment of a new next friend must be supported by an affidavit showing the fitness of the proposed person and that he has no interest adverse to that of the minor. The rule prevents the next friend from abandoning the minor mid-suit and ensures continuity of representation.

Rule 9 supplies the grounds for removal of a next friend. Sub-rule (1) lists them: where the interest of the next friend is adverse to that of the minor; where he is so connected with a defendant whose interest is adverse as to make protection of the minor's interest unlikely; where he does not do his duty; where he ceases to reside within India during the pendency of the suit; or for any other sufficient cause. The application may be made on behalf of the minor or by a defendant. Sub-rule (2) gives priority to a guardian appointed by competent authority who later applies to be substituted: the court shall remove the next friend unless it considers that the appointed guardian ought not to be substituted for reasons recorded.

The Bombay High Court has held that an application for removal must be made on behalf of the minor or by a defendant — the court has no power to act suo motu. The Madras High Court has taken a slightly different view: where the conduct of the next friend is likely to jeopardise the minor's interest, the court could remove him and appoint another. Both views agree that the underlying purpose is the protection of the minor; they diverge on the procedural route. Where the next friend is acting improperly in refusing to consent to a beneficial compromise, the court may remove him and substitute another (Bhikulal v. Kisanlal 1959).

Rule 10 governs stay of proceedings. On the retirement, removal or death of the next friend, further proceedings shall be stayed until a new next friend is appointed. Sub-rule (2) authorises any person interested in the minor to apply for an appointment if the pleader fails to take steps within a reasonable time. The rule operates only where the death or removal is brought to the notice of the court — where in ignorance of the death of the next friend a decree is passed without appointment of a new next friend, the decree is not a nullity (Rule 10 case-law line). Rule 11 applies the same scheme to the guardian for the suit on the defendant's side. Sub-rule (1) lets the court permit retirement or remove a guardian who does not do his duty or for other sufficient ground; sub-rule (2) requires appointment of a new guardian where retirement, removal or death occurs during pendency. A guardian does not cease to be a guardian merely by expressing a wish to retire — he continues to represent the minor until the court formally permits retirement or removes him.

Minor attaining majority — Rules 12 to 14

Rule 12 governs the course to be followed by a minor plaintiff or applicant on attaining majority. Sub-rule (1) requires the now-major plaintiff to elect whether to proceed with the suit or application. Sub-rule (2): if he elects to proceed, he shall apply for an order discharging the next friend and for leave to proceed in his own name. Sub-rule (3) prescribes the corrected title — AB, late a minor, by CD his next friend, but now having attained majority. Sub-rule (4): if he elects to abandon, he shall, if a sole plaintiff, apply for an order to dismiss the suit on repayment of costs. Sub-rule (5) allows the application to be made ex parte, except that no order discharging a next friend and permitting the minor to proceed in his own name shall be made without notice to the next friend.

The Code does not expressly provide for a defendant attaining majority during pendency, since the defendant cannot terminate the suit. The Madras High Court has held that the now-major defendant may, if he thinks fit, come on the record and conduct his own defence; if he does not do so and allows the case to proceed as though he were still a minor, he is deemed to have elected to abide by the judgment. Anil Kumar v. Krishnamurthy AIR 1995 added that a minor defendant who attains majority during pendency may file a separate written statement.

Rules 13 and 14 deal with two corollaries. Rule 13: where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as plaintiff and the court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs as it thinks fit; if he is a necessary party, the court may direct him to be made a defendant. Rule 14: a minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name be dismissed as unreasonable or improper, in which case the court may order the next friend to pay costs. Rule 14 is the procedural anchor for the older case law on liability of the next friend for costs — where the suit was not for the benefit of the minor, the court may direct the next friend personally to pay (Elumalal v. Kuppamal (1933)); where the next friend acted bona fide on reasonable grounds, costs come out of the minor's property (Devkabai v. Jafferson (1886)). The Punjab and Delhi inserts to Rule 1 codify the costs liability — the next friend may be ordered to pay any costs in the suit as if he were the plaintiff.

Persons of unsound mind — Rule 15

Rule 15 transposes the entire scheme — Rules 1 to 14 (except Rule 2A) — onto persons of unsound mind. The application is twofold: it covers persons adjudged before or during the suit to be of unsound mind, and persons who, though not so adjudged, are found by the court on enquiry to be incapable, by reason of mental infirmity, of protecting their interests when suing or being sued. The duty of inquiry is mandatory. The Supreme Court has held that the trial court is under an obligation to conduct the inquiry, and failure to do so amounts to a jurisdictional error. The inquiry is not the same as that contemplated under the Lunacy Act (now the Mental Health Act) — Order XXXII Rule 15 supplies its own self-contained procedure. Prima facie proof is sufficient; an elaborate inquiry is not required.

The expression mental infirmity has been read broadly. It is not limited to mental disorder, insanity or mental illness. Weakness of mind from any cause that incapacitates the person from protecting his interest brings the case within Rule 15. The Kerala High Court has held that physical disabilities seriously affecting cognitive functions — deafness or dumbness — are within the rule. The Court can order medical examination either suo motu or at the instance of a party (Sharda v. Dharmpal, the divorce-proceeding case where the Supreme Court held that the court has powers to satisfy itself as to the mental condition of a party either for purposes of guardian appointment under Rule 15 or for determination of competence as a witness).

The Punjab/Delhi inserts add a Rule 15-A authorising the court to award costs personally against the next friend or guardian as if he were a party — extending the costs principle of Rule 14 to suits and proceedings involving persons of unsound mind. The application of Rule 7 to compromises on behalf of persons of unsound mind has been confirmed by Nazir Ahmed v. Hanefa AIR 1974: leave of the court is required, and a compromise without leave is voidable at the instance of the person under disability. Where the suit was filed by a person of unsound mind through her son-in-law as next friend in a maintenance proceeding under Section 125 CrPC, Ajit Kumar Nirmalkar v. Puniya Bai Nirmalkar AIR 2008 held the application maintainable; for purposes of the CrPC, the Family Court is deemed a Civil Court and exercises civil-court powers including the Rule 15 framework.

Savings — Rule 16 and the court-of-wards overlap

Rule 16 supplies two saving clauses. Sub-rule (1) excludes the application of Order XXXII to the Ruler of a foreign State suing or being sued in the name of his State, or being sued by direction of the Central Government in the name of an agent or in any other name. Sub-rule (2) preserves the operation of any local law for the time being in force relating to suits by or against minors or by or against lunatics or other persons of unsound mind — including the various Court of Wards Acts and the Lunacy and Mental Health legislation. A ruling chief sued in his personal capacity, if not domiciled in India, is not subject to the Indian Majority Act; if he has attained majority according to his personal law, no guardian ad litem need be appointed. The interface with the chapter on suits by or against government and public officers under Section 80 and Order XXVII turns on the distinction between sovereign immunity and procedural representation: Rule 16(1) handles the foreign-state immunity case; Order XXVII handles the suit-against-state case.

The Court of Wards overlap is significant. Where a minor is a ward of the court of wards, the manager of the ward's property — or, if there is no manager, the Collector of the district — is the next friend or guardian under the relevant Court of Wards Act. The High Court is to appoint a next friend or guardian ad litem for proceedings in the High Court, including in original or appellate jurisdiction. Drig Raj Kuer v. Amar Krishna Narain Singh (1960) held that where both parties are wards and a compromise is effected by the authority acting under the Court of Wards Act, the resulting decree is not open to attack on the ground of unsoundness of mind — the authority is the guardian by operation of the saving clause.

MCQ angle and recurring distinctions

Four distinctions recur. First, between Rule 3 (decree against an unrepresented minor — void) and Rule 3A (decree against a represented minor with adverse-interest guardian — voidable on proof of prejudice). The line between non-representation and defective representation is the most-tested distinction in the chapter. Second, between irregularity and nullity in Rule 2 cases — the absence of a next friend is an irregularity that can be cured (Bacchi Raj v. Sunder Mal AIR 1963; Amrutaben v. Nitaben AIR 2003), whereas the absence of a guardian ad litem under Rule 3 is a nullity (Kauran Devi v. Amar Nath AIR 2007). Third, between Rule 4(1) — fitness, sound mind, majority, no adverse interest — and Rule 4(2) — priority of the guardian appointed by competent authority. Fourth, between the Privy Council position in Rashid-un-nissa (decree void wherever guardian's interest obviously adverse) and the post-1976 Rule 3A position (decree voidable on adverse interest plus prejudice).

Two more points are exam-favourites. Rule 7 sub-rule (2) makes a compromise without leave voidable at the instance of the minor only — no other party can challenge it. And the next friend or guardian is not a party to the suit — Rup Chand v. Dasodha (1908) — but is a procedural functionary whose authority is limited to the proceedings for which he is recognised by the court (RB Mishra v. State AIR 1983). The protective umbrella of Order XXXII connects with the broader framework treated in the chapters on death, marriage and insolvency of parties under Order XXII and on parties to suit under Order I; the indigent-person extension is in suits by indigent persons under Order XXXIII.

Frequently asked questions

Who is a 'minor' for the purposes of Order XXXII?

The Explanation to Rule 1 incorporates the definition in Section 3 of the Indian Majority Act, 1875. Every person domiciled in India who has not completed the age of 18 years is a minor. The age is raised to 21 only in the case of a minor of whose person or property a guardian has been appointed by a court of justice, or whose property is under the superintendence of a court of wards. The 1976 amendment that inserted the Explanation settled the older controversy as to whether the Majority Act controlled the position, including the special question of a Muslim minor girl who has attained puberty. The position is now uniform: 18 in the ordinary case, 21 in the court-of-wards case.

What is the effect of a decree passed against a minor who is not represented by a guardian ad litem at all?

Such a decree is a nullity. The provisions of Rule 3 are imperative. If a minor is sued without a guardian ad litem and a decree is passed against him, the decree cannot be enforced and does not operate as res judicata. The minor may disregard it without filing a suit to set it aside (Ramanathan Chettiar v. Palaniappa Chettiar (1934)). This is to be distinguished from the situation under Rule 3A, where the minor is represented but the guardian has an adverse interest — there the decree is voidable, not void, and the minor must show prejudice in order to have it set aside. The Supreme Court reaffirmed the nullity principle in Kauran Devi v. Amar Nath AIR 2007.

Is the leave of the court necessary for a compromise on behalf of a minor under Rule 7, and what happens if it is not obtained?

Yes. Rule 7(1) provides that no next friend or guardian for the suit shall, without the leave of the court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit. Sub-rule (1A) requires the application to be supported by an affidavit and, where the minor is represented by a pleader, by a certificate of the pleader to the effect that the compromise is for the benefit of the minor. Sub-rule (2) declares that any agreement or compromise entered into without leave so recorded shall be voidable against all parties other than the minor. The court must apply its judicial mind to the propriety of the compromise — Manohar Lal v. Jadunath Singh (1906) — and the leave must be express, not implied.

Can the court appoint a guardian whose interest is adverse to that of the minor?

No. The proviso to Rule 4(1) bars the appointment of a person whose interest is adverse to that of the minor. The leading case is Rashid-un-nissa v. Mohammad Ismail (1909) PC, where the Privy Council set aside a decree on the ground that the uncle appointed as guardian had an obviously adverse interest. After the 1976 amendment, the position is governed by Rule 3A: a decree passed against a minor is not to be set aside merely because the guardian had an adverse interest, but where prejudice is caused by reason of such adverse interest, the decree shall be set aside. Rule 3A reverses the older Privy Council formulation only in part — adverse interest plus prejudice is the test today.

Does Order XXXII apply to persons of unsound mind, and what inquiry must the court hold?

Yes. Rule 15 makes Rules 1 to 14 (except Rule 2A) apply, so far as may be, to persons adjudged before or during the suit to be of unsound mind, and also to persons who, though not so adjudged, are found by the court on enquiry to be incapable, by reason of mental infirmity, of protecting their interests when suing or being sued. The Supreme Court has held that the trial court is under an obligation to conduct the enquiry; failure to do so amounts to a jurisdictional error. The expression mental infirmity has been read broadly — it includes weakness of mind from any cause, including physical disabilities such as deafness or dumbness that affect cognitive capacity, as the Kerala High Court has held.

What happens when a suit is filed by a minor without a next friend?

Rule 2 says the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. The court is not bound to take the plaint off the file — sub-rule (2) lets the court make such order as it thinks fit, including allowing time for the minor to be properly represented (Bacchi Raj v. Sunder Mal AIR 1963). The position has been extended by Amrutaben v. Nitaben AIR 2003 to suits filed by persons of unsound mind: the suit is not to be dismissed but the plaint is to be taken off the file to enable the irregularity to be cured. The defect is procedural; the suit can continue once a proper next friend is appointed.