( 1 ) IN this appeal the appellants, who are two minors represented by their next friend maternal uncle K. Venkatachalam, presented a suit in forma pauperis, registered as O. P. No. 61 of 1976 in the Court of the Subordinate Judge, tanuku and sought the permission of the court under Order 33 Rule 1 CPC to file the suit as indigent person. The suit is for partition and separate possession of plaintiffs share in the plaint schedule properties with past and future profits. The appellants pleaded that they have no means to pay the court fee payable on the plaint.

( 2 ) THE first respondent herein is the father of the minors but he has not been shown as the next friend of the minor plaintiffs and the minors have been represented by their maternal uncle. K. Venktachalam as their next friend. Respondents 2 to 6 herein resisted the claim of the minor plaintiffs and contended inter alia that the minors have capacity to pay the court fee payable on the plaint. Their contention was that they possessed property worthy Rs. 6,000/- and that it is in their possession and enjoyment. Their further contention was that the maternal uncle cannot act as the next friend of the minor plaintiffs and the suit has been engineered by the father of the minor plaintiffs.

( 3 ) THE next friend of the minor plaintiffs was examined as P. W. 1 in support of the minor plaintiffs. He stated that the minor plaintiffs have no means or capacity to pay the court fee on the plaint but strangely the learned Subordi nate Judge on the basis of the admission of the next friend of the minors that the father and mother of the minors are alive and the minors are living along with their parents held that the next friend maternal uncle, who acted as next friend of the minors, is not competent to act as the next friend of the minors and as such he is not entitled to lay the suit on behalf of the minors as representing the minors. In spite of the evidence of P. W. 1 that the minors have no means or capacity to pay the Court fee required on the plaint, the learned Subordinate judge has drawn an adverse inference as to their capacity and means to pay the court fee merely on the ground that the minors are living with their parents. Consequently the learned Subordinate judge dismissed the petition seeking permission for filing the suit as indigent persons.

( 4 ) IN this appeal theonly contention urged by the learned counsel for the appellants is that the findings recorded by the Isamed Subordinate Judge as perverse and not sustainable in law. I final that there is substance in this contention raised by the learned counsel for the appellants.

( 5 ) THE first objection to the representation out forward by the plaintiffs is that when their father who is the natural gurdian is available the matemal uncle was incompetent to act as next friend of the minor plaintiffs. It is urged that the appointment of a proper person as next friend of minors is imperative and in the absence of due representation of the minors, the suit was not maintainable. The question, therefore, is whether there was proper representation of the minors in the suit.

( 6 ) THE rules relating to the appointment of guardian during the pendente lite for minor plaintiffs are found in Order 32 CPC. Under Rule 1 of Order 32 CPC. every suit by a minor shall be instituted in his name by a parson who in such suit shall be called the next friend of the minor. Rule 2 (1) of Order 32 CPC. , lays down that where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Rule 2a of Order 32 CPC, states that where a suit has been instituted on behalf of the minor by his next friend, the court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for reasons to be recorded, order the next friend to give security for the pay