Published On: Sat, Feb 6th, 2016

RIGHT OF MINOR TO CHALLENGE EARLIER JUDGMENT AFTER ATTAINING MAJORITY

In terms of Order 32 Rule 3A of the C.P.C. which permits the minor after attaining majority to challenge the previous decree being adverse to him on the ground of misconduct, gross negligence on the part of next friend or guardian, was required to, in terms thereof, to be duly substantiated by the cogent and reliable evidence.

Case Laws on Right of Minor

Kameshwari Devi v. Barhani as reported in (1997) 10 SCC 273

Legal Opinion

Legal Opinion

In a case where the estate of the minor is involved in an action for partition or any other suit, the estate of the senior is required to be properly represented taking all diligent steps by either guardian ad litem or the court guardian. If the interest or the estate of the minor is not protected necessarily, the minor on his attaining majority or within three years thereafter is entitled to file the suit under Section 7 of the Limitation Act, after cessation of the disability to question the correctness of a decree which is sought to be made binding on him.

But in that case, the limited defence that could be open to him is that either the decree in the earlier suit was obtained by fraud/collusion or by negligence by the court guardian or that the guardian ad litem did not safeguard the interest of the estate of the minor. On proof of those facts, necessarily, the decree does not bind him and it is open to the court to go behind the decree and consider the right of the minor dehors the decree.

Asharfi Lal v. Smt. Koili (dead) as reported in AIR 1995 SC 1440

The question is whether it is permissible for a minor to avoid a judgment delivered in an earlier proceeding to which he was a party on the ground of negligence of his next friend.

In England, an infant plaintiff is as much bound by a judgment or order as an adult, even though there may have been irregularities in the conduct of the proceedings, unless there has been fraud or gross negligence on the part of his next friend.

Sir Richards Malins V. C., while considering the question whether an infant is to suffer by any negligence on the part of a next friend, has observed :

“The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of their next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and will protect her interests.”

The Courts in India, by and large, have adopted the same approach. Till 1936 there was consensus of judicial opinion that it is permissible for a minor to a void a decree obtained against him if there is negligence on the part of his next friend in the conduct of the case.

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