Mother Can Represent Muslim Minor As 'Next Friend' In Civil Suit As CPC Provisions Are Secular And Not Tied To Personal Law: Calcutta High Court

"Scheme of representation of a minor as enumerated in Order XXXII is secular in nature, without being tied up to the personal law of any of the parties." Calcutta High Court, in a significant ruling dated March 31, 2026, held that the representation of a minor in a civil suit is governed by the secular provisions of the Code of Civil Procedure (CPC) and is not restricted by the personal law of the parties.

A division bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya observed that a Muslim mother can validly represent her minor child as a "next friend" in court proceedings, clarifying that the personal law concept of a legal guardian is entirely distinct from the procedural mandate of court representation.

The dispute originated from a partition suit filed by the plaintiff against the original defendant, who subsequently transferred portions of his share to the minor appellant through a registered gift and sale deed. The minor, represented by his mother as his next friend, successfully applied to be impleaded as an added defendant and subsequently sought a temporary injunction to stop the plaintiff from constructing on the best portion of the joint property. The Trial Court dismissed the minor's injunction application, prompting the present appeal before the High Court.

The primary question before the court was whether a Mohammedan minor could be validly represented in a civil suit through his mother as a "next friend" under Order XXXII of the CPC, given that she is excluded from being a legal guardian of his property under Islamic personal law. The court was also called upon to determine whether the trial court was justified in refusing a temporary injunction restraining a co-sharer from altering the nature and character of the joint suit property based merely on an approved municipal sanction plan.

Addressing the plaintiff's contention that Section 359 of Mulla's Principles of Mahomedan Law excludes a mother from being a legal guardian of a minor's property, the court emphasized that representation in legal proceedings is strictly governed by Order XXXII of the CPC. The bench noted that the Code grants wide powers to permit any person of sound mind who has attained majority, and holds no adverse interest, to act as a next friend or guardian for the suit. "Hence, the concept of 'legal guardian' under the Mohammedan Law is not germane for the present consideration."

The court further clarified the scope of Order XXXII Rule 3 of the CPC, which requires the court to appoint a proper guardian when the defendant is a minor. The bench observed that this provision only triggers when a minor is already a defendant in the suit. Since the minor appellant entered the litigation by filing an impleadment application on his own accord, he had to be represented by a next friend just to cross the threshold barrier, making the appointment of a formal legal guardian under Rule 3 inapplicable at that initial stage. "As such, in the present case, since the appellant, who is a minor, was not even a party to the suit and was impleaded on his own application as a defendant, there was no scope of appointment of a legal guardian before the appellant entered into the fray of the litigation."

Delving into the nuances of personal law, the court highlighted Section 361 of Mulla's Principles of Mahomedan Law, which allows a person to voluntarily act as a de facto guardian and custodian of a minor's person and property. Relying on the Kerala High Court precedent in Abdul Samad v. Rasheedha, the bench reasoned that there is no restriction on a minor being represented by a next friend to acquire property, as the only prohibition under Section 364 is against transferring a minor's immovable property. "Considered in appropriate legal perspective, thus, the minor appellant can very well be represented by his mother or, for that matter, by anyone else, provided such person is of sound mind, has attained majority and does not have any interest adverse to the minor in the suit."

"The mere fact of obtaining conversion and a sanction plan by the plaintiff at his own risk does not per se confer a right on the plaintiff to raise a construction on an admittedly joint property..."

Turning to the merits of the injunction application, the High Court strongly criticized the Trial Court's mutually contradictory findings. The lower court had simultaneously noted the Advocate Commissioner's report that no construction was currently underway, yet refused the injunction on the ground that the plaintiff possessed a substantial share and an approved building plan. The bench observed that obtaining conversion permissions and a sanction plan at one's own risk does not inherently entitle a co-sharer to unilaterally construct on a chosen portion of undivided property. "The mere fact of obtaining conversion and a sanction plan by the plaintiff at his own risk does not per se confer a right on the plaintiff to raise a construction on an admittedly joint property, by selecting a portion of the property for such construction according to his whims and choice, thereby seeking to tilt equities in his favour..."

The bench expounded on the established equitable principles governing partition suits, noting that the existing possession of parties must be honored as much as possible. The court cautioned that allowing a party to raise permanent structures during the pendency of a suit would force the court to allocate that specific portion to the builder later, effectively rewarding unilateral actions and prejudicing the equal rights of other co-sharers who hold an interest in every inch of the joint property. "...courts are inclined to ensure that the subject property is maintained in statu quo during pendency of a partition suit. This is also to ensure that one party cannot steal a march over the other by selecting the best portion of the suit property and raising a permanent building thereon, thereby frustrating the rights of his cosharers..."

The High Court allowed the appeal and set aside the Trial Court's order that had dismissed the added defendant's injunction application. The bench granted a temporary injunction restraining the plaintiff and his agents from changing the nature and character of the suit property or altering existing possession until the final disposal of the partition suit.

Date of Decision: 31 March 2026