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Himachal Pradesh High Court · body

2012 DIGILAW 703 (HP)

Rajinder Singh v. Pania Ram

2012-10-10

KULDIP SINGH

body2012
Judgment Kuldip Singh, J. 1. The plaintiff having lost in both the courts below has assailed the judgement, decree dated 27.2.2001 passed by the learned District Judge, Shimla in Civil Appeal No. 193-S/13 of 1998 affirming the judgement, decree dated 18.8.1998 passed by learned Sub Judge, Theog in case No. 299/1 of 1995. 2. The facts in brief are that appellant had filed a suit for declaration and injunction against the respondents that Smt. Kubza next friend of minor plaintiffs in Civil Suit No. 66/1 of 1984 decided on 30.11.1987 by learned Sub Judge, Theog and by appellant court has acted with gross negligence, the same is not biding upon the plaintiffs and respondents No. 4 and 5, who were proforma respondents, the sales made by respondent No. 3 in favour of respondents No. 1 and 2 on 22.11.1982 and 11.11.1983, are wrong and illegal. The appellant has prayed for possession in favour of appellant and proforma respondents No. 4 and 5 by way of consequential relief. 3. The further case of the appellant is that he and proforma respondents No. 4 and 5 are sons of respondent No. 3 and constituted joint Hindu family, they are coparceners. The land comprised in khasra No. 116, measuring 19 biswas and khasra No. 311 measuring 6 bighas and 10 biswas, Chak Bagain, Pargana Shila (for short, suit land), is joint Hindu family and coparcenery property of appellant, respondents No. 3 to 5. The appellant and proforma respondents No. 4 and 5 have acquired an interest by birth in the suit property. 4. The respondent NO. 3 without legal necessity had sold land comprised in khasra No. 116 to respondent No. 1 vide sale deed dated 22.11.1982 for a sum of `8000/-. The respondent No. 3 also sold land comprised in khasra No. 311 to respondents No. 1 and 2 vide sale deed dated 11.11.1983 for a consideration of `12000/-. The sales were not for legal necessity. The respondent No. 3 was addicted to wine etc. He had time and again sold joint Hindu family property. The entire amount has been squandered by respondent No. 3. He had also taken loan from Land Development Bank without any legal necessity. 5. The appellant and proforma respondents No. 4 and 5 were minors at the time of sale deeds dated 22.11.1982 and 11.11.1983. He had time and again sold joint Hindu family property. The entire amount has been squandered by respondent No. 3. He had also taken loan from Land Development Bank without any legal necessity. 5. The appellant and proforma respondents No. 4 and 5 were minors at the time of sale deeds dated 22.11.1982 and 11.11.1983. Their mother Smt. Kubza Devi had filed Civil Suit No. 66/1 of 1984 as their next friend to challenge the sale deeds dated 22.11.1982 and 11.11.1983. The suit was dismissed by the trial court on 30.11.1987. The appeal was also dismissed on 21.5.1983. The second appeal was dismissed on 23.9.1995. 6. The appellant has pleaded that Smt. Kubza Devi could not conduct the case in intelligent manner as the sales prior to the year 1982 and taking of loan from Land Development Bank without any legal necessity were not brought to the notice of court in Civil Suit No. 66/1 of 1994. The respondent No. 3 had not developed the remaining land of Joint Hindu family, because only 5 bighas were left after selling the land by respondent No. 3 to various persons. The respondent No. 3 had also not imparted education to appellant and proforma respondents No. 4 and 5. The appellant after attaining the age of majority has filed the suit. 7. The suit was contested by respondents No. 1 and 2. The filing of Civil Suit No. 66/1 of 1984 by Smt. Kubza Devi as next friend of appellant was not denied. It has been stated that Smt. Kubza had not acted in a negligent manner to conduct the suit, she engaged able advocates in the trial court and appellate court. It has been denied that suit land was not sold for legal necessity. The respondent No. 3 was not in a position to maintain his family and to develop the land, therefore, out of legal necessity, he sold the land vide sale deeds dated 22.11.1982 and 11.11.1983. It has been denied that appellant and proforma respondents No. 4 and 5 are coparceners with respondent No. 3 and suit land was coparcenery property. The respondent No. 3 is addicted to wine has been denied. The loan from Land Development Bank was taken by respondent No. 3 for legal necessity. 8. The respondents No. 1 and 2 took preliminary objections of res judicata, maintainability, valuation. The respondent No. 3 is addicted to wine has been denied. The loan from Land Development Bank was taken by respondent No. 3 for legal necessity. 8. The respondents No. 1 and 2 took preliminary objections of res judicata, maintainability, valuation. The suit is barred in view of earlier Civil Suit No. 66/1 of 1984. The appellant during the pendency of the appeal before the High Court attained majority. He is debarred from filing the present suit. 9. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether Smt. Kubza the next friend of the plaintiffs in suit No. 66/1 of 1984 decided on 30.11.1987 by the civil court acted with gross negligence and thus the judgement and decree passed by the civil court are not binding by the plaintiffs and the proforma defendants? OPP. 2. Whether the suit land is joint Hindu family and coparcenery property of the plaintiff and defendant No. 3 as alleged? OPP. 3. If issue No. 2 is proved whether defendant No. 3 sold the suit land without any legal necessity as alleged? OPP. 4. Whether the suit is barred by principle of resjudicata? OPD 5. Whether the suit is not maintainable? OPD. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction if so what is proper value? OPD. 7. Relief. The issue No. 1 was decided in negative, issue No. 4 in affirmative, on issues No. 2, 3, 5 and 6 no findings were returned and the suit was dismissed on 18.8.1998. The appeal filed by the appellant has been dismissed by the learned District Judge on 27.2.2001, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether on account of non-consideration and failure to decide the issues No. 2, 3, 5 and 6 which go to the root of the case, both the courts below have failed to exercise the jurisdiction in accordance with law. 2. Whether the provisions of order 32 rule 12 and 13 CPC are mandatory in nature and since in the trial of earlier suit No. 66/1 of 84 neither at the stage of Ist Appellate Court nor before the Hon’ble High Court of H.P. in RSA No. 212/93, were complied with therefore, the findings are required to be set-aside. 3. 2. Whether the provisions of order 32 rule 12 and 13 CPC are mandatory in nature and since in the trial of earlier suit No. 66/1 of 84 neither at the stage of Ist Appellate Court nor before the Hon’ble High Court of H.P. in RSA No. 212/93, were complied with therefore, the findings are required to be set-aside. 3. Whether the principle of resjudicata has wrongly been applied by the Ld Sub Judge against the appellants and since at the time of filing of Civil Suit No. 66/1 admittedly he was minor therefore, he has legal right to assail the validity of the proceedings in that suit on the grounds of gross negligence and mis-conduct of his mother who acted as a guardian. 4. Whether for want of holding any enquiry in Civil Suit No. 66/1 of 84 as regards to competency of his mother Smt. Kubja Devi to file the suit on behalf of the appellant and in the absence of any satisfaction of either of the courts dealing with the case, the findings as recorded in that case are not bindings upon the appellant and therefore, subsequent suit No. 299/1 of 95 deserves to be decreed. 10. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that issues No. 2, 3, 5 and 6 which go to the root of the case have not been decided by the courts below and both the courts below have failed to exercise the jurisdiction in accordance with law. Order 32, Rules 12, 13 CPC are mandatory, which have not been complied and, therefore, decisions rendered in Civil Suit No. 66/1 of 1984 and RSA No. 212 of 1993 are not sustainable. The competency of Smt. Kubza Devi to file Civil Suit No. 66/1 of 1984 after holding an inquiry was not considered, therefore, the impugned judgement, decree are not sustainable. The principle of res judicata has been wrongly applied. The appellant has legal right to assail the validity of proceedings in Civil Suit No. 66/1 of 1984 and appeals arising out of Civil Suit No. 66/1 of 1984. 11. The learned counsel for respondents No. 1 and 2 has submitted that Smt. Kubza Devi mother of appellant honestly, diligently as next friend of the appellant pursued Civil Suit No. 66/1 of 1984. 11. The learned counsel for respondents No. 1 and 2 has submitted that Smt. Kubza Devi mother of appellant honestly, diligently as next friend of the appellant pursued Civil Suit No. 66/1 of 1984. The appellant himself pursued RSA No. of 1993 which had arisen from Civil Suit No. 66/1 of 1984. Assuming but not conceding even if any default was committed by Smt. Kubza Devi knowingly or unknowingly, it was open to the appellant to take corrective measures, but since no default was committed by Smt. Kubza Devi in pursuing the earlier litigation, the appellant did not take any corrective measures in the previous litigation initiated by Smt. Kubza Devi on behalf of appellant as his next friend. It has been submitted that now it is too late for the appellant, he is legally debarred to question the sale deeds dated 22.11.1982 and 11.11.1983 after the decision in CS No. 66/1 of 1984 and the appeals arising out of said suit. The present suit is barred by res judicata. The courts in previous litigation committed no wrong nor the courts below in the present lis have committed illegality so as to set-aside the impugned judgement, decree. The learned counsel has supported the impugned judgement, decree. 12. The substantial questions of law No. 1 and 3 can be conveniently considered collectively, therefore, these substantial questions of law No. 1 and 3 are taken up for consideration. It has been submitted on behalf of the appellant that courts below have not decided issues No. 2, 3, 5 and 6 which go to the root of the case and have thus failed to exercise the jurisdiction in accordance with law. Om Prakash and others vs. State of Himachal Pradesh and others AIR 2001 H.P. 18 , Puran Chand vs. Pat Ram Latest HLJ 2008 (HP) 417 have been relied by the learned counsel for the appellant in support of this contention. The legality of sales in question were to be proved by respondents No. 1 and 2 which they have miserably failed. It was not for the appellant, who was minor, to prove that such sales were illegal. It has also been argued that sales dated 22.11.1982 Ex. P-5 and 11.11.1983 Ex. P-4 were in contravention of section 11 of Hindu Minority and Guardianship Act, 1956 (for short, Act), the sales are void. It was not for the appellant, who was minor, to prove that such sales were illegal. It has also been argued that sales dated 22.11.1982 Ex. P-5 and 11.11.1983 Ex. P-4 were in contravention of section 11 of Hindu Minority and Guardianship Act, 1956 (for short, Act), the sales are void. The learned counsel for the appellant has relied Rangammal vs. Kuppuswami and another (2011) 12 SCC 220 in support of this contention. It has been submitted that principle of res judicate has been wrongly applied by the courts below in non-suiting the appellant. 13. The issue No. 2 was with respect to the nature of suit property before sale, whether it was coparcenery property of appellant and respondent No. 3. The issue No. 3 was whether suit land was sold by respondent No. 3 without legal necessity. The decision on issue No. 3 was subject to outcome of decision on issue No. 2 in affirmative. The onus of issues No. 2 and 3 was on appellant. The issue No. 5 was of maintainability and issue No. 6 was of valuation, the onus of issues No. 5 and 6 was on respondents. The learned trial court considered issues No. 2, 3,5,6 collectively and disposed of the said issues with the observation that in view of findings on issues No. 1 and 4, no findings were given on said issues. 14. The necessary implication of disposal of issues No. 2,3,5,6 by the learned trial court was that issues No. 2 and 3 were not decided in favour of the appellant and issues No. 5 and 6 were not decided in favour of respondents. The decision on issues No. 5 and 6 by the trial court against respondents in no way prejudiced the appellant inasmuch as issues No. 5 and 6 were not decided in favour of the respondents, hence appellant cannot be heard to say that issues No. 5 and 6 have been decided wrongly, more so when against the decision on issues No. 5 and 6 respondents have raised no grievance. 15. The question is with respect to decision on issues No. 2 and 3. The grievance of the appellant is that these issues were not decided by the trial court and then by the lower appellate court in accordance with law. 15. The question is with respect to decision on issues No. 2 and 3. The grievance of the appellant is that these issues were not decided by the trial court and then by the lower appellate court in accordance with law. In Om Prakash (supra), the Division Bench held: “…..We find that the impugned judgement does not stand the judicial scrutiny as it is completely in violation of provisions of O.20, Rule 5 and Order 14 Rule 2 CPC. The purport of these provisions is that the trial court after framing issues is supposed to give its findings or decision, with reasons upon each separate issue, unless the findings upon any one or more of the issues is sufficient for the decision of the suit or the court is of the opinion that the case or any part thereof may be disposed of on an issue of law, it may try that issue first if that issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force and postpone the settlement of other issues until after that issue has been determined.” 16. The Division Bench further held that findings upon any one or more of these were not sufficient for the decision of the suit. It is thus clear as per Om Prakash (supra) the court is supposed to give findings or decisions with reasons upon each separate issue, unless the findings upon any one or more of the issues is sufficient for the decision of the suit. The Division Bench further held that in that case the findings upon any one or more of the issues were not sufficient for the decision of the suit. 17. In Puran Chand (supra), the trial court vide order dated 27.12.2006 treated two issues as preliminary issues. An application for recalling the said order was dismissed on 4.7.2007. The two orders were challenged. The High Court set-aside both the orders dated 27.12.2006 and 4.7.2007 and directed the trial court to dispose of all issues and then pronounce the judgement. 18. In the present case the fundamental and core issues were issues No. 1 and 4. The trial court decided both the issues against the appellant. The two orders were challenged. The High Court set-aside both the orders dated 27.12.2006 and 4.7.2007 and directed the trial court to dispose of all issues and then pronounce the judgement. 18. In the present case the fundamental and core issues were issues No. 1 and 4. The trial court decided both the issues against the appellant. The trial court has considered issues No. 2, 3, 5 and 6, but since according to trial court the decision on issues No. 1 and 4 was sufficient to dispose of the suit, therefore, the trial court has not given separate findings on issues No. 2, 3, 5 and 6. The trial court and the lower appellate court have committed no mistake in giving no separate findings on issues No. 2, 3, 5 and 6 in view of decision on fundamental and core issues No. 1 and 4. The procedure adopted by the two courts below is not in conflict with the law laid down by the Division Bench in Om Prakash (supra) nor the suit was disposed of on preliminary issues, therefore, Puran Chand (supra), is also not applicable in the facts and circumstances of the present case. There is no merit in substantial question of law No.1. 19. The learned Sub Judge under issue No. 4 has observed that subject matter in Civil Suit No. 66/1 of 1984 was the same as in the present suit and held that suit is hit by principle of res judicata. It has been contended that the present suit has been filed on the ground that Smt. Kubza Devi next friend in Civil Suit No. 66/1 of 1984 acted with gross negligence, the judgement and decree in Civil Suit No. 66/1 of 1984 are not binding on appellant. This question was not in earlier civil suit and is involved only in the present suit. The question of next friend in earlier suit will be considered in substantial questions of law No. 2 and 4. In Civil Suit No. 66/1 of 1984 the validity of sale-deeds dated 22.11.1982 Ex.P-5 and 11.11.1983 Ex. P-4 was in dispute. The same sale deeds have been questioned by the appellant in the present suit. 20. The appellant has filed the present suit that earlier suit was not pursued by Smt. Kubza Devi as next friend properly rather she in gross negligent manner pursued the earlier suit. P-4 was in dispute. The same sale deeds have been questioned by the appellant in the present suit. 20. The appellant has filed the present suit that earlier suit was not pursued by Smt. Kubza Devi as next friend properly rather she in gross negligent manner pursued the earlier suit. It has been submitted that suit property was coparcenery property of the appellant. It could not have been sold by respondent No. 3 in the manner, it has been sold vide sale deeds dated 22.11.1982 and 11.11.1983. It has also been submitted that sales are hit by section 11 of the Act, no permission of the court was taken by respondent No. 3 before selling the share of appellant, who was minor at the relevant time before selling his share vide sale deeds 22.11.1982 and 11.11.1983. The learned counsel for appellant has relied Madhegowda (dead) by LRs. vs. Ankegowda (dead) by LRs and others (2002)1 SCC 178 in support of the contention that sale in violation of section 11 of the Act is void. 21. In Madhegowda (supra), Smt. Sakamma was a minor, her sister Smt. Madamma purportedly acting her guardian sold her share of property to Madhegowda by a registered sale deed dated 24.4.1961. Smt. Sakamma attained majority sometimes in 1961-62. She sold her share of property to Ankegowda predecessor of respondents No. 1 to 9 therein by registered sale deed dated 1.7.1967. The question before the Supreme Court was competence of Smt. Madamma to sell the interest of her minor sister Smt. Sakamma in the property as her guardian. The Supreme Court noticed `natural guardian’ defined in clause (c ) of sections 6 and section 11 of the Act and held as follows:- “…………. Section 11 includes all types of properties of a minor. No exception is provided in the section. Undoubtedly Smt. Madamma, sister of the minor, is not a `guardian’ as defined in Section 4(b) of the Act. Therefore, she can only be taken to be a `de facto guardian’ or more appropriately `de facto manager’. To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/ manager having been made in violation of the express bar provided under the section is per se invalid. To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/ manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not acquired to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/ her interest in the property in a lawful manner asserting his/ her title to the same that is sufficient to show that the minor has repudiated the transfer made by the `de facto guardian/ manager’.” 22. The learned counsel for the appellant has also relied Madhegowda (supra), on the point that natural guardian is required to seek permission of the court before alienating any part of the estate of the minor and the court is not to grant such permission to the natural guardian except in case of necessity or for an evident advantage to the minor. The Supreme Court has held that any transfer in violation of the prohibition incorporated in section 11 of the Act is ab initio and void. In the present case, the sale deeds dated 22.11.1982 and 11.11.1983 were not executed by de facto guardian but by father `natural guardian’, therefore, the sales in question are not hit by section 11 of the Act. 23. The learned counsel for the appellant has relied Rangammal vs. Kuppuswami and another (2011) 12 SCC 220 and has submitted that when a person after attaining majority, questions any sale of his property by his guardian during his minority, the burden lies on the person who upholds/ asserts the purchase not only to show that the guardian had the power to sell but further that the whole transaction was bonafide. No doubt, the burden is on the person, who supports the sale of the share of minor, but whether such question, when raised or not raised on all available grounds in the earlier litigation can be permitted to be raised between the same parties in the second round of litigation. 24. Ex. P-1 is the copy of judgement dated 30.11.1987 in case No. 66/1 of 1984. In Ex. P-1 Mohan Lal, Hira Singh, Rajinder Singh all sons of Anant Ram have been shown as plaintiffs. The present suit has been filed by Rajinder Singh, who has been shown plaintiff No. 3 in Ex.P-1. Pania Ram, Rukmani and Anant Ram defendants in the present suit have also been shown as defendants in Ex. P-1. In Ex. P-1 sale deeds dated 22.11.1982 and 11.11.1983 (registered on 14.11.1983) were in dispute. The issue No. 3 was whether sale in question is binding on the plaintiffs and issue No. 4 was whether the land in suit is joint Hindu family and coparcenery property of plaintiffs and defendant No. 1. Both the issues were answered in affirmative and the suit was dismissed on 30.11.1987. 25. The case No. 66/1 of 1984 was filed by the plaintiffs through their mother Smt. Kubza. Ex. P -2 is the judgement dated 21.5.1993 passed by learned Addl. District Judge affirming the judgement dated 30.11.1987 Ex. P-1. In Ex. P-2 also Mohan Lal, Hira Singh and Rajinder Singh minors have been shown appellants and the appeal has been filed through their mother Smt. Kubja. Ex.DE is judgement dated 20.3.1995 in RSA No. 212/93 arising out of judgement dated 21.5.1993 Ex. P-2. Mohan Lal, Rajinder Singh, Hira Singh became major and pursued RSA No. 212/93 in their own right without the help of Smt. Kubza Devi their next friend. RSA No. 212/93 was dismissed on 20.3.1995. 26. The appellant herein was appellant No. 2 in RSA No. 212/93. He did not whisper anything in RSA No. 212/93 against the conduct of Smt. Kubza Devi his previous next friend for pursuing earlier litigation, who filed the suit and the appeal in the lower appellate court. In these circumstances, it can be safely inferred that appellant herein accepted and ratified all the actions of Smt. Kubza Devi her next friend in the previous litigation. The appeal is the continuation of the suit. In these circumstances, it can be safely inferred that appellant herein accepted and ratified all the actions of Smt. Kubza Devi her next friend in the previous litigation. The appeal is the continuation of the suit. The appellant herein is bound by all acts of his previous next friend in the earlier litigation and all principles of law which govern the previous suit and the present suit. 27. The section 11 of the Code of Civil Procedure deals with the principle of res judicata. The explanation-IV of section 11 of the Code provides any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The present suit for challenging the sale-deeds dated 22.11.1982 Ex. P-5 and 11.11.1983 Ex. P-4 is squarely covered by the principle of res judicata when these very sale deeds were very much in dispute and challenged in Civil Suit No. 66/1 of 1984 between same parties and were upheld to be validly executed by respondent No. 3 Anant Ram father of the appellant. In M. Nagabhushana vs. State of Karnataka and others (2011) 3 SCC 408 , the Supreme Court has held as follows:- “12. The principles of res Judicata are of universal application as they are based on two age old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.” “13. That principle of finality of litigation is based on high principle of public policy. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.” “17. It may be noted in this context that while applying the principles of res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law’. 28. The appellant was required to question the sale deeds 22.11.1982 and 11.11.1983 on all pleas available in law in CS No. 66/1 of 1984 and now the appellant in the present suit is debarred from questioning the sale deeds dated 22.11.1982 and 11.11.1983 on any ground which he could take in Civil Suit No. 66/1 of 1984. It is nobody’s case that grounds of challenge to sale deeds 22.11.1982 and 11.11.1983 taken in the present suit by the appellant were not available to him in the earlier suit. The present challenge to sale deeds dated 22.11.1982 and 11.11.1983 on behalf of the appellant in view of decision in Civil Suit No. 66/1 of 1984 is barred by principle of res judicata. There is no merit in substantial questions of law No. 3, thus substantial questions of law No. 1 and 3 are decided against the appellant. 29. The substantial questions of law No. 2 and 4 are taken up collectively for decision. The rule 12 of Order 32 CPC provides course to be followed by the minor plaintiff on attaining majority. There is no merit in substantial questions of law No. 3, thus substantial questions of law No. 1 and 3 are decided against the appellant. 29. The substantial questions of law No. 2 and 4 are taken up collectively for decision. The rule 12 of Order 32 CPC provides course to be followed by the minor plaintiff on attaining majority. The rule 12 provides a minor plaintiff on attaining majority, elect whether he will proceed with the suit and where he elects to proceed with the suit, he shall apply for an order discharging the next friend and for leave to proceed in his own name. It also provides where minor plaintiff elects to abandon the suit, he shall apply for an order discharging the next friend and leave to proceed in his own name. Where he elects to abandon the suit, he shall, if a sole plaintiff, apply for an order to dismiss the suit on repayment of the costs. The rule further provides that no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend. The rule 13 provides where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-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 or otherwise. The notice of application shall be served on the next friend, co-plaintiff and defendant. In case minor plaintiff attains the majority and is a necessary party to the suit, the court may direct him to be made a defendant. 30. In Hazari and another vs. Suresh and others AIR 1979 All. 242 the suit was brought by two brothers Suresh and Santosh Kumar. Suresh was major and Santosh Kumar was minor at the time of institution of the suit. It was contended that Santosh Kumar had become major during the pendency of the suit before the trial court and he did not elect to prosecute the suit as required by order 32 Rule 12 CPC. It has been held that there is nothing on record to indicate that Santosh Kumar elected to abandon the suit, his elder brother Suresh was also a plaintiff in the suit. It has been held that there is nothing on record to indicate that Santosh Kumar elected to abandon the suit, his elder brother Suresh was also a plaintiff in the suit. The interests of Suresh and Santosh Kumar are common. Therefore, if Santosh Kumar did not make any application saying that he would proceed with the suit it does not mean that the suit could not proceed at all, because the suit could be proceeded with by his elder brother Suresh. There is nothing on record to indicate that Santosh Kumar abandoned the suit or in any way repudiated the proceedings of the suit before the trial court. It has been held that omission of Santosh Kumar to have moved an application under order 32 rule 12 has not placed the appellants in any position of advantage nor it has made the suit brought by his guardian and his elder brother in any way defective. The contention of appellant’s counsel was rejected. 31. In Dharamshi Polabhai vs. Champaklal Vashram and others AIR 1983 Guj. 217 , it has been held that merely the minor plaintiff having become major does not exercise his option under order 32, rule 12 one way or the other during the pendency of the suit, it cannot be said that thereby any irregularity, defect or error of the type which affects the merits of the case or jurisdiction of the court gets projected in the proceedings. At the highest, it remains a procedural irregularity which will have no fatal effect on the decree that follows and such a decree cannot be reversed only on that ground by the appellate court as enjoined by the legislature by enacting section 99. 32. In the present suit, merely on attaining majority by the appellant and his not exercising the discretion as provided in order 32, Rules 12 and 13 of the Code, it cannot be said that decree passed in Civil Suit No. 66/1 of 1984 is void. Smt. Kubza Devi pursued Civil Suit No. 66/1 of 1984. 32. In the present suit, merely on attaining majority by the appellant and his not exercising the discretion as provided in order 32, Rules 12 and 13 of the Code, it cannot be said that decree passed in Civil Suit No. 66/1 of 1984 is void. Smt. Kubza Devi pursued Civil Suit No. 66/1 of 1984. RSA No. of 1993 arising out of CS No. 66/1 of 1984 was pursued by appellant in his own right without questioning the authority of Smt. Kubza Devi as next friend for pursuing the earlier civil suit and the appeal in the lower appellate court, therefore, it can be safely inferred that appellant not only approved, affirmed, but also ratified the acts of Smt. Kubza Devi for pursuing the Civil Suit No. 66/1 of 1984 and appeal in the lower appellate court. 33. At the time of hearing of the appeal no provision was shown providing competency of next friend for filing the suit is to be ascertained by the court or satisfaction is to be recorded by the trial court regarding the competency of next friend to pursue the suit on behalf of the minor. The rule 4 of Order 32 provides any person, who is of sound mind and has attained majority may act as next friend of a minor; provided that interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend as defendant. It is not the case of the appellant that Smt. Kubza Devi his mother was not of sound mind and she was not major when she acted as next friend of the appellant in the earlier litigation nor it has been established that Smt. Kubza Devi had adverse interest to the appellant in the earlier litigation nor Smt. Kubza Devi was defendant in the earlier suit. Thus seen from any angle, it cannot be said that Smt. Kubza Devi had disqualified herself to be the next friend of the appellant in the earlier litigation. The substantial questions of law No. 2 and 4 are decided against the appellant. 34. In view of above, there is no merit in the appeal. The appeal fails and is accordingly dismissed with no order as to costs.