No person can be appointed next friend without his consent, and before making such an appointment the Judge should be satisfied of his willingness to act.

Application for appointment of new next friend.

449. If the pleader of such minor omits, within reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or the matter at issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

This section applies to H. C. and P. S. C. C.

If a next friend be not appointed, and the suit is dismissed, defendant cannot get his costs from the minor-Turner vs. Turner, 1 Stra., 708.

Quare.--Whether a minor, who having been a party to a suit was served with summons, afterwards, on attaining majority carried on the suit as transferree of the estate from the widow, previous owner, was not bound as a party?-Partab Narain vs. Trilokenath, 11 Ind. App., 197.

450. A minor plaintiff, or a minor not a party to a suit on whose behalf an application is pending, on coming of age must elect whether he will proceed with the suit or application.

Course to be followed by minor plaintiff or applicant on coming of age.

This section applies to H. C. and P. S. C. C.

Where he elects to proceed.

451. If he elects to proceed with it, he shall apply for an order discharging the next friend, and for leave to proceed in his own name. The title of the suit or application shall in such case be corrected so as to read thenceforth thus:

"A. B., late a minor, by C. D., his next friend, but now of full age.

This section applies to H. C. and P. S. C. C.

Where he elects to abandon.

452. If he elects to abandon the sait or application, he shall, if a sole plaintiff or sole applicant, apply for an order to disiniss the suit or application on repayment of the costs incurred by the defendant or respondent, or which may have been paid by his next friend.

Costs,

This section applies to H. C. and P. S. C. C.

If he abandons it as unreasonable or improper-see section 455.

453. Any application under section 451 or section 452 Making and proving may be made ex-parte; and it must be proved by affidavit that the late minor has attained his full age.

applications under sections 451, 452.

This section applies to H. C. and P. S. C. C.

O'K., CIV. P.

28

tiff coming of age desires to repudiate suit.

454. A minor co-plaintiff on coming of age and desirWhen minor co-plain- ing to repudiate the suit must 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 as it thinks fit.

Costs.

Notice of the application shall be served on the next friend, as well as on the defendant; and it must be proved by affidavit that the late minor has attained his full age. The costs of all parties of such application, and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs. If the late minor be a necessary party to the suit, the Court may direct him to be made a defendant.

This section applies to H. C. and P. S. C. C.

If a minor, sole plaintiff, elects to abandon the suit, his application must be to dismiss the suit; if he desires as co-plaintiff to repudiate it, the form of his application must be not to dismiss the suit, but to have his name struck out as co-plaintiff.

In England, if the next friend requires it, the late minor will be made a co-defendant -Bicknell vs. Bicknell, 32 Beav., 381.

When suit unreasonable or improper.

455. If any minor on attaining majority can prove to the satisfaction of the Court that a suit instituted in his name by a next friend was unreasonable or improper, he may, if a sole plaintiff, apply to have the suit dismissed.

Costs.

Notice of the application shall be served on all the parties concerned: and the Court, upon being satisfied of such unreasonableness or impropriety, may grant the application, and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit.

This section applies to H. C. and P. S. C. C.

A minor, on attaining his majority, cannot get a bill filed on his behalf dismissed with costs to be paid by his next friend, unless he can prove to the satisfaction of the Court that the suit was unreasonable or improper, otherwise he must pay all costs-Anon. 4 Mad., 461. A filed a bill as next friend of B, whom he alleged to be of unsound mind. B's sanity was established: Held, on application by B, to have the bill taken off the file, that he was entitled to an indemnity against all the consequences of the suit having been instituted in his name, and that A must pay B's costs, as between solicitor and client, of the application, and the defendant's costs of the suit, as between party and party including the costs of the application in the lowest Court and on appeal-Palmer vs. Walesby, 3 Ch. App., 732.

456. An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. Such application must be supported by an affidavit verifying the fact that the proposed

Petition for appointment of guardian ad litem.

guardian has no interest in the matters in question in the suit adverse to that of the minor, and that he is a fit person to be so appointed.

Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian:

Provided that he has no interest adverse to that of the

minor.

This section applies to H. C. and P. S. C. C.

See section 443.

An affidavit is necessary, although the plaintiff does not oppose the application. The natural guardian should not be passed over when he has no adverse interest and there is no personal imputation against him. A person nominated by certain executors commenced an administration suit against them as next friend of certain infant children. The father of the infant did not become aware that his children were plaintiffs until the decree had been passed, and then applied to be substituted as next friend: Held, that as he had no interest adverse to the minor and was otherwise eligible, his name should be substituted-Woolf vs. Pemberton, 6 C. D., 19.

A person cannot be appointed guardian ad litem against his will-Jadow Mulji vs. Chhagan, I. L. R., 5 Bom., 306; but once appointed his appointment lasts for the whole of the litigation, or until it is revoked by the Court-Jwala vs. Pirbhu, I. L. R., 14 Alla., 35.

Revision -A Civil Court has no power to refuse to admit a person who has obtained a certificate to defend a suit connected with the minor's estate, but an order refusing is apparently not liable to revision under section 622, post-Baldeo Das vs. Gobind, I. L. R., 7 Alla., 914. Compare section 446, ante.

Who may be guardian ad litem.

457. A co-defendant of sound mind and of full age may be appointed guardian for the suit, if he has no interest adverse to that of the minor ; but neither a plaintiff, nor a married woman, can be so appointed.

This section applies to H. C. and P. S. C. C.

Under the old Procedure a woman might be appointed-In the matter of Danapa bin Sobrao, 1 Bom., 134, possibly a widow is still eligible. A married woman is not-Gara Pershad vs. Gossain, I. L. R., 11 Cal., 733; and see Asirun vs. Sharip, I. L. R., 17 Cal., 488.

Guardian neglecting his duty may be removed.

458. If the guardian for the suit of a minor defendant does not do his duty, or if other sufficient ground be made to appear, the Court may remove him, and may order him to pay such costs as may have been occasioned to any party by his breach of duty.

Costs.

This section applies to H. C. and P. S. C. C.

Costs can be recovered from a person acting as guardian if he has acted improperly -Goolam Hossein vs. Fatmebai, I. L. R., 5 Bom., 391, unless has been appointed without his consent―Jadow Mulji vs. Chhagan, I. L. R., 5 Bom., 306.

459. If the guardian for the suit dies. Appointment in place pending such suit, or is removed by the of guardian dying pendente lite. Court, the Court shall appoint a new guardian in his place.

This section applies to H. C. and P. S. C. C.

Ordinarily, when the next friend of an infant dies, his nearest paternal relations are entitled to nominate the new next friend-Talbot vs. Talbot, L. R., 17 Eq., 347; Woolf vs. Pemberton, 6 C. D., 19.

Guardian ad litem of

460. When the enforcement of a decree is applied for against the heir or representative, being a minor, of a deceased party, a guardian for of deceased judgment the suit of such minor shall be appointed by the Court, and the decree-holder shall

minor

debtor.

representative

serve on such guardian notice of such application.

This section applies to H. C. and P. S. C. C.

Before decree, next friend or guardian ad litem not to receive

461. No sum of money or other thing shall be received or taken by a next friend or guardian for the suit on behalf of a minor, at any time money without leave of before decree or order, unless he has first obtained the leave of the Court and given security to its satisfaction that such money or other thing shall be duly accounted for to, and held for the benefit of, such minor.

Court and giving security.

The following section has been substituted by Act VIII of 1890.

461. "(1) A next friend or guardian for the suit shall Receipt by next friend not, without the leave of the Court, receive any money or other moveable property on behalf of a minor, either

or guardian ad litem of property under decree for minor.

(a) by way of compromise before decree or order, or
(b) under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other moveable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application."

This section applies to H. C. and P. S. C. C.

The duty of a next friend or guardian for the suit is to control the Receiver and see that the moneys are properly applied, and he cannot be allowed to hold an appointment incompatible with his relation to the minor-See Garland vs. Garland, 2 Ves., 137.

462. No next friend or guardian for the suit shall, without the leave of the Court, enter into any agreement or compromise on behalf of a minor, with reference to the suit in which he acts as next friend or guardian.

Next friend or guardian ad litem not to compromise without leave of Court.

Any such agreement or compromise entered into without the leave of the Court shall be voidable Compromise without leave voidable. against all parties other than the minor.

This section applies to H. C. and P. S. C. C.

Does not Apply.-An agreement by the guardian that an issue should be determined by the oath of the plaintiff does not require sanction-Chengal vs. Venkata, I. L. R., 12 Mad., 483; nor does it apply to the case of a guardian withdrawing objections under the advice of counsel-Mirali vs. Rehmoobhoy, I. L. R., 15 Bom., 594.

Sanction. The sanction must be express, not implied-Raja Gopal vs. Muttu Palem, I. L. R., 3 Mad., 103; Shorut Chunder vs. Kartick Chunder, 12 C. L. R., 453; I. L. R., 9 Cal., 810; and if it is given under a misrepresentation of a material fact, due either to fraud or culpable and wilful ignorance, it is not binding-Bibee Solomon vs. Abdool Azeez, I. L. R., 6 Cal., 687.

If the guardian cannot do anything for the minor's benefit, he ought to leave the matter to the Court-Court of Wards vs. Rajcoomar Deo Nundun Sing, 16 W. R., 143. Thus he cannot waive a right to compensation for land taken under Act X of 1870-Lachmeswar Singh vs. Chairman of Durbhanga, I. L. R., 18 Cal., 99; though he can contest the validity of a decree passed without sanction in execution-proceedings-Arunachellam vs. Murugappa, I. L. R., 12 Mad., 503. Parties entering into a compromise with a next friend should carry it out by proper deeds filed in Court, and instead of concealing the transactions should obtain the consent of the Court; otherwise they must, in order to clear themselves, show that the money was paid to the minor or reached him when he came of age-Moulvi Abdool Ali vs. Mozuffer Hossein Chowdhry, 16 W. R., P. C., 22.

A Court should not make a decree by consent against a minor without ascertaining that it is for the benefit of the infant that such a decree should be pronounced-Ramchurn Raha Bukshee vs. Mungul Sircar, 16 W. R., 232; and if the suit is for immoveable property, and the next friend is a person holding a certificate under Act XL of 1858, the consent of the Court granting the certificate is also necessary-Sheonundun Singh vs. Kahsa Kooer, 6 Alla., 179.

Remedy. A minor can sue by his next friend to set aside a compromise-Bibee Solomon vs. Abdool Azeez, I. L. R., 6 Cal., 687; or he may, on majority, proceed by review or a regular suit, making his next friend or guardian a co-defendant, or apply to the Court in which the compromise was made-Dabee Dutt Shahoo vs. Subodra Bibee, 25 W. R., 449; Eshan Chunder vs. Nundamoni, I. L. R., 10 Cal., 357; Karmalai vs. Rahimbhoy, I. L. R., 13 Bom., 137; Mirali vs. Rehmoobhoy, I. L. R., 15 Bom., 594; and compare Kissen Sett vs. Hurrololl, I. L. R., 19 Cal., 334; but the binding effect of a compromise cannot be tried in execution of the decree-Arunachallam vs. Murugappo, I. L. R., 12 Mad., 503. Voidable.-See Hemanta vs. Brojendro, I. L. R., 17 Cal., 875; 17 Ind. App., 65. provisions contained in sections 440 to 462 (both inclusive) shall, mutatis mutandis, apply in the case of persons of unsound mind, adjudged to be so under Act No. or under any other law for the time being in

463. The

Application of sec

tions 440 to 462 to persons of unsound mind. XXXV of 1858, force.

This section applies to H. C. and P. S. C. C.

A person alleged to be a lunatic, though not found so under Act XXXV of 1858, may appear either in person or by vakil-Uma Sundari Dasi vs. Ramji Haldar, I. L. R., 7 Cal., 242; Jounagadia vs. Thatiparthi, I. L. R., 6 Mad., 380; and where a suit for partition was brought by a next friend for a person not adjudged a lunatic, a subsequent adjudication was held not to save the error-Tukaram vs. Vithal, I. L. R., 13 Bom., 656; but this decision has not been followed, and it has been decided that on general principles a Court should assign a guardian ad litem to a defendant of unsound mind-Venkatramana vs. Timappa, I. L. R., 16 Bom., 132; and see ex parte Cohen, 10 C. D., 183. See, however, Bhoopendra Narain Roy vs. Greesh Narain Roy, I. L. R., 6 Cal., 539.

The High Court of the North-West has not by section 12 of the Charter any original jurisdiction in respect of lunatics who are natives of India-Jaundha Koer vs. Court of Wards, I. L. R., 4 Alla., 159.

464. Nothing in this Chapter applies to a Sovereign

Princes and Chiefs and Wards of Court.

Prince or Ruling Chief suing or being sued in the name of his State or being sued, by