A suit for maintenance by minor children against their father can be filed by their next friend, even though the father is the natural guardian, as per Section 4 of the Hindu Minority and Guardianship Act, 1956.

A. GANGADHARA RAO, J.

( 1 ) THE defendant, Nyalakonda Peda Gopal Rao, is a much married man He married a first wife and through her he has a daughter by name Sulochana, who is married. His first wife died. His second wife deserted him. He married a third wife, through whom he has a son yadagiri Rao (1st plaintiff) and four daughters, viz. Bharathi (next friend) lakshmi, Sharada (2 plainitiff) and Rangamma (3rd plaintiff ). After the death of the third wife, he married a fourth wife and she deserted him. The defendant has about 15 acres of wet land and 15 acres of dry land- it is stated that the defendant is given to all vices and from about May. 1972 he was not maintaining the 1st plaintiff and his sisters. Bharathi (the eldest daughter) is a major and unmarried. She is working as a teacher and she is maintaining her brother and sisters since May, 1972 she performed the marriage of her sister, Lakshmi, on 7th July 1972, by borrowing about Rs. 5. 000/- Plaintiffs 2 and 3 are minors and yet to be married. The 2nd plaintiff is working as a Gramasevika since 1975. The 1st plaintiff is also a minor and studying. Since the defendant was not maintaining the plaintiffs, there was a panchayat in the village, but it did not prove fruitful. Therefore, the minor plaintiffs, represented by their next friend, Bharathi, their sister, filed the suit. It is not disputed that the family properties are ancestral properties. Therefore, the first plaintiff (son) prays for partition and separate possession of his half a share in the joint family properties. The 1 st plaintiff and the minor daughters (plaintiffs 2 and 3) claimed past maintenance from 1st dune, 1972, to 31st October 1973, the date of filing of the suit and future maintenance at the rate of Rs. 75/- per month each.

( 2 ) THE defendant contested the suit by stating that he did not neglect to maintain the plaintiffs. That was disbelieved by the learned judge. He found that the defendant was accustomed to all vices and was not providing for the maintenance of his children. The 1st plaintiff the minor son, became a major during the pendency of the suit. The learned Judge granted a decree for partition and separate possession of his half a share in the plaint scheduled properties. But, he rejected the claim of plaintiffs 2 and 3, the minor daughters, for maintenance on the ground that their next friend, that is, their sister, was not competent to file the suit, since their natural guardian, the father, was not declared to be incompetent to be the guardian under the Hindu Minority and guardianship Act, 1956. In this respect, he followed the decision of the Orissa High Court in Sobha Dei v. Bhima (1) AIR 1975 Orissa 180. That finding is questioned in this appeal by the plaintiffs. It is submitted by the learned counsel for the appellants that the learned Subordinate judge has completely misunderstood the legal position, in that, he had ignored the provisions of Order 32 C. P. C.

( 3 ) SO, the question for my consideration is whether the present suit filed by the minor plaintiffs, represented by their next friend against their father is maintainable in law ?

( 4 ) ORDER 32 C. P. C. , provides for suits by or against minors and persons of unsound mind. Rule (1) says 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. Rule (3) (1), as amended in this State, provides 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 that 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. Sub-rule (3) of rule 3 provides that where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for the minor. Then, the procedure is prescr

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