Guardian for minor defendant is to be appointed by court and not by Plantiff

Appointment of a guardian for a minor defendant by the court is necessary to protect interest of the minor defendant or else the plaintiff by a fraudulent act nominate somebody favoring himself as a guardian of a minor defendant and get the suit decreed on admission of such guardian. The guardian appointed by the court for a minor defendant has to act by himself and cannot delegate his power and duty to act for the benefit of minor to anyone. He cannot give power of attorney as a guardian.

Bombay High Court

Ganeshshankar R Upadhyay vs. Brahmaprakash
Citation :  AIR 2012 NOC 86 BOM
CORAM : D.G. KARNIK, J
DATED : 15th July 2011
ORAL ORDER:
1. Heard learned counsel for the petitioner. None present for the respondent.
2 CRA No.314/07
2. The petitioners are the original plaintiffs and respondents are the original defendants. Petitioners filed a suit bearing Regular Civil Suit No.224 of 2003 against the respondents. In the suit, respondents appeared through one Mr.Girija Shankar Upadhyay who claimed to be a Power of Attorney holder of the respondents and filed their written statement on 15 October 2004 contesting the suit. One Uday Shankar Upadhyay also appeared in the suit claiming to be the power of attorney holder of the respondents and filed another written statement on the same date i.e 15 October 2004 admitting the contents of the plaint. Thereafter, the petitioners made an application at Exhibit 24 for passing a decree in terms of admission contained in the written statement filed by Uday Shankar. By an order dated 21 February 2007, the trial Judge dismissed the application and refused to pass a decree in terms of the admission. That order is impugned in this revision application.

3. It appears that the dispute before the trial court was whether Uday Shankar Upadhyay or Girija Shankar Upadhyay was the power of attorney holder of the respondents. The court appears to have come to the conclusion that Girija Shankar was the proper power of attorney and therefore, a decree on admission cannot be passed on the basis of admission given in the written statement by Uday Shankar.
4. In my view, the order passed by the trial court can be sustained even for a different reason. It may be noted that in the plaint, the defendant no.2 is shown to be minor aged 15 years. The 3 CRA No.314/07
cause title of the plaint states that defendant no.2 is represented by his mother Rajiyanoor Nuspin @ Rajkumari. It is not clear from the records on whom the summons of defendant no.2 was served. However, it is clear that the provisions of Order 32 of the Code of Civil Procedure (for short "the Code") were not followed. Rule 3 of Order 32 provides that where the defendant is a minor, the Court on being satisfied of the fact of his minority shall appoint a proper person to be a guardian for such minor. In respect of a minor defendant, the plaintiff cannot himself appoint or designate any person to be a guardian of minor defendant and say that the person appointed/designated by him would act as a guardian of the minor defendant. Plaintiff is required to make an application to the court for appointment of a guardian and it is for the court to appoint a suitable person to be a guardian for the minor defendant. In appointing any person as the guardian of a minor defendant the court is required to consider several circumstances including his suitability and whether the interest of such person is adverse to that of the minor (see proviso to Order 32 Rule 4(1) of the Code). The power of appointment of a guardian for the minor defendant does not vest in the plaintiff but is conferred on the court so as to protect the interest of the minor. Rule 6 of Order 32 of the Code says that a friend or a guardian (of a minor) in a suit shall not without leave of the court receive any money or other movable property on behalf of a minor by way of a compromise (i) before a decree or order or (ii) under a decree or order in favour of the minor. Rule 7 of Order 32 of the Code provides that no next friend or guardian of a minor for the suit shall, without the leave of the court, expressly recorded in the proceedings, enter into any agreement or a compromise on 4 CRA No.314/07
behalf of a minor with reference to the suit in which he acts as next friend or guardian. These provisions show that the legislature has taken special care to protect the interest of a minor litigant by not even allowing the guardian to receive any money or other movable property on behalf of a minor either before or after the decree or to enter into a compromise on behalf of the minor without express leave of the court.
5. Appointment of a guardian for a minor defendant by the court is necessary to protect interest of the minor defendant or else the plaintiff by a fraudulent act nominate somebody favoring himself as a guardian of a minor defendant and get the suit decreed on admission of such guardian. The guardian appointed by the court for a minor defendant has to act by himself and cannot delegate his power and duty to act for the benefit of minor to anyone. He cannot give power of attorney as a guardian. In the present case, an admission is purportingly given by an alleged power of attorney purportingly appointed by a guardian of a minor defendant no.2. The court was right in refusing to act upon an alleged admission given by the alleged power of attorney granted by the alleged guardian of the minor defendant no.2.
6. There is no merit in the petition. Revision Application is accordingly dismissed.
(D.G.KARNIK, J)

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