Point of Law : if the minor can show fraud or negligence on the part of his next friend or guardian ad litem, it entitles the minor to challenge the decree passed against him and avoid its effects.

ORDER :

A.Muhamed Mustaque, J.

RP 667/2016: This review is pointing out an adlitem irregularity. The review petitioner was a minor in the proceedings before the District Court and became major before the disposal of the case before the District Court. The review petitioner was shown as a minor in the appeal under review as well. The records of the District Court show that there was no application for appointment of a guardian for the minor before the District Court nor had the Court appointed a guardian. The point that arises in this review is whether the decree passed against a minor without the minor being represented by a guardian, duly appointed by a Court, renders the decree as nullity. So also the dismissal of the appeal, overlooking the nullity of the decree passed by the District Court warrants a review at the instance of the minor.

2. The point of law arises in the context of Order 32 Rule 3 and Rule 3A of the Code of Civil Procedure, 1908 (CPC).

3. Brief facts are; one Thomman held properties in and around Ernakulam. He died intestate. Xavier and Antony were his sons. Mary was his only daughter. Xavier died on 12/1/1979. Xavier's wife Tresa Xavier filed O.S. No.112/84 for partition of the property that belonged to Thomman. Tresa claimed that her deceased husband Xavier inherited half share and another half share to his brother Antony. Overruling the claim of Tresa, a preliminary decree was passed allotting 1/3rd share to each child of the deceased Thomman. Tresa claimed that before the preliminary decree was passed, Antony, her husband's brother executed Ext.A10 Will on 3/4/1986. Antony died on 16/8/1994.

4. Tresa in the year 1996, filed O.P.No.482/1996 for granting probate of the Will of Antony. Tresa had no children in her wedlock with Xavier. Tresa adopted her brother's daughter, Irena. Irena in her wedlock with Joseph Aloysious, has three children. Tresa claimed that the children of Irena are the legatees under the Will. Prema Maxi is the daughter of Irena and one of the legatees. Mary was the first defendant. She contended that the Will is not genuine and was vitiated by undue influence, coercion and fraud. In view of the dispute, the Probate O.P. was converted as a suit and renumbered as O.S.No.23/2001. Pending the suit, Mary died and her children were impleaded as additional defendants.

5. The review petitioner, Prema Maxi was the fifth defendant in O.S.No.23/2001. Her date of birth is 11/12/1984. She was shown as a minor and represented by her father and legal guardian. Her sister Priya Maxi was also a minor and was represented by her father. During the pendency of the Probate O.P., they were set exparte on 17/6/1997. Thereafter, an application to set aside exparte order was filed and that was allowed on 22/7/1997. On 3/9/1997, the Court recorded submission of the review petitioner and the other legatees of the Will arrayed as respondents 2 to 6, “no objection” in granting probate.

6. The District Court, on conversion of the probate as a suit, tried the matter and dismissed the suit holding that the Will was not genuine and Tresa was not entitled to get probate of the Will. Both parties, Tresa and the legal heirs of Mary contested the suit by adducing evidence and bringing all possible evidence.

7. Tresa came in appeal before this Court in R.F.A.No.240/2003. This Court, after examining the evidence in detail, came to the conclusion that Antony was of unsound mind and therefore, Ext.A10 Will was not genuine. It is appropriate to refer to para.52 of the judgment in R.F.A.No.240/2003 which reads thus:

52. In the light of the above discussion we hold that the admission of the plaintiff, the medical evidence adduced by additional defendants 7 to 9 and the probabilities in the case leave no room for any doubt that Antony was of unsound mind.

8. The review petitioner, Prema Maxi was the 5th respondent in the appeal before this Court. She was shown as minor even though she became a major in the year 2002. The appeal was filed