Exposition of ‘Next Friend’ in law

Introduction

The term ‘next friend’ is derived from the French words ‘prochein ami’ which means ‘to stand as a representative for the person who is not in a position to stand for their own’ like minor, unsound, disabled etc. This concept of next friend is a very vital part of the minor’s life or in the lives of the unsound and disabled to bring justice for them and help them stand in the world and in courts.

Difference between ‘guardian’ and ‘next friend’

The terms guardian and next friend are very similar. Both represent the minor and act as sui juris, which means ‘the one who does not suffer from a legal disability and can manage one’s own affairs’. A next friend is a person who represents the minor when the minor initiates the suit. A guardian is appointed by the court for the minor when he/she is sued.
 

In the case of Nagaiah & Anr v. Smt.Chowdamma (dead) By Lrs. & Anr, 2018 (2) MLJ 242 (SC), the Court clearly explained the difference between guardian and next friend which was summed up as:

“The only practical difference between a “next friend” and a “guardian ad litem” is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the court to represent a minor who has been a defendant in the suit.   Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by the court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the court and may be   removed by the court if the best interest of the minor so requires.”

When is a next friend preferred?

The concept of next friend is used in India in various laws. One of such direct use is in Civil Procedural Code,1908 (CPC).
 

Order 32 of CPC

Order 32 of CPC deals with the suit filed by or against a minor or an unsound person. Rule 1 of Order 32 provides 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 who does everything for the minor till the end of the litigation. According to Order 32 Rule 2A of the CPC, the court may, at any phase of the suit, request the next friend to give security for all the costs incurred or which is to be incurred by the Respondent. Rule 4(1) of Order 32 describes the qualification of a next friend for a minor. This rule says that:

“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.”
 

As per Order 32 Rule 9 of CPC, a next friend can also be removed when his interest is adverse to the minor and starts being connected with the Defendant. He can also be removed if he is not staying in India during the pendency of the case.
 

A similar view was taken by judges in various matters like Sambhoo v. Kanhaya, AIR 1922 All 332(2)(B) and Venkata Chandrasekhara Raja v. Alakarajamba Maharani, 22 Mad 187 (C) holding that only one representative must be there starting from the trial court to the highest court in order to avoid confusion by different representatives in every stage.
 

Though a case by minor is represented by his next friend, the next friend cannot be brought into the terms of ‘Petitioner’ under Section 95 of CPC, however, the Defendant can recover damages from the next friend. The minor only remains the ‘Petitioner’ as observed in Marti Satyanarayana v. Gujavarti Anjareddi, (1941) 1 MLJ 765.
 

The Legislature, through its foresight, has ensured additional safeguards under such circumstances and by way of Order 32 Rule 6 – Receipt by next friend or guardian for the suit of property under decree for minor and Rule 7- Agreement or compromise by next friend or guardian for the suit, which prohibits the next friend from releasing money under a decree or compromise without the leave of the court.

Next friend explained in relation to contract law

A contract always needs free consent as per Section 10 of the Indian Contract Act, 1872 (‘the Act’), but a minor does not have the full presence, ability or capacity to give a free consent. Therefore, a contract with a minor is void-ab-initio. Hence, a next friend or a legal guardian will represent them till the minor becomes a major who is competent to contract according to Section 11 of the Act.
 

This has first cited in the case of Mohiri Bibi v. Dharmodas Ghosh, ILR (1903) 30 Cal 539, where the Plaintiff wasa minor who mortgaged his property to the Defendant. Plaintiff later repaid only a few amounts and refused to pay the rest of the amount. So, the Plaintiff’s next friend (his mother) instituted a suit against the Defendant that the Plaintiff had entered into a contract when he was a minor. Hence, it is not a valid contract.
 

The next friend can enter into any contract which is beneficial for the minor. An early case that upheld this was Great American Insurance v. Madan Lal, (1935) 37 BOMLR 461, the next friend entered a contract for insurance to protect the minor’s property which was destroyed by fire. When the insurers told that they cannot give the money as the agreement with the minor was void, the next friend sued the insurer for recovery of the insurance money and the court held that the next friend can claim the insurance. Here the contract is beneficial to the minor; the next friend did not cheat the minor or did not take it for his own benefit.

Legal ramification and appeal in cases represented by the next friend

The next friend has the power to take a decision on behalf of the minor until he is removed or on his death. If the next friend becomes unsound during the pending case, any other person looking after the benefit of the minor can move the application to be next friend. Instituting a suit on behalf of the minor is the biggest power given to the next friend by the Supreme Court.
 

On January 15, 2018, the Supreme Court in the case of Nagaiah and Anr v. Chowdamma(dead) By Lrs., Civ. App. No. 22969 of 2017, held that there is no particular legal procedure or necessary permission to be taken for the appointment of the next friend for a minor. The Court held that the next friend need not take any permission of the court to institute a suit on behalf of the minor.
 

In the case of Raj Behari Lal & Ors. v. Dr. Mahabir Prasad & Ors., AIR 1956 All 310the Court held that an appeal on behalf of the minor can be filed by the guardian appointed by the court. When the appeal is filed by the minor as Plaintiff in the previous suit, then the next friend can file the appeal on behalf of the minor. The provisions in Order 32 of the CPC shall apply in such suits. Every suit by a minor must be instituted in his name by his next friend.

Conclusion

The concept of next friend is to protect the interest of minor and bring justice to the minor or unsound person. The concept of next friend has many more advantages than a guardianship. A next friend need not take any kind of permissions or appointments unlike guardian from the court. The duty of the next friend is same as if he individually instituted the suit for himself but in the interest of the minor. The next friend has the power to move an appeal, institute a suit and has all the powers like any other individual on behalf of the minor.