In a case reported in Rangaswami Reddi v. Gopalaswami Reddiar and Ors. (1978)2 M.L.J. 564, a Division Bench of the High Court held that under Rule 15 of 0.32, C.P.C. the court is directed to make an enquiry for the purpose of finding out whether the person concerned, by reason of unsoundness of mind or mental infirmity is incapable of protecting his interest when suing or being sued... It is settled by a series of decision of this Court as well as other courts that the responsibility cast upon the court under the provisions of the Code referred to above is very serious because a person concerned is denied, his liberty to take action purporting to be on his behalf, From one point of view if the person is not of unsound mind allowing another person to sue as a next friend on his behalf will be a total deprivation of the liberty of the person concerned to take care of his own interest and foisting on him another person to pursue a litigation which he himself might not have liked. By pointing out this decision, the learned advocate for the respondent had submitted that Subramaniya Asari was having a sound mind and neither the appellate court nor the trial court declared him or found him unsound of mind. But Subramaniya Asari wantonly made him to be represented by his wife by stating that he was unsound of mind of the reason that he has signed in the sale proclamation taken out by the respondent and if he comes to the witness box he would be precluded from giving evidence contra and to avoid the same, he has shielded himself by stating that he was unsound of mind and allowed to be represented by his wife Radha Bai Ammal. Further Subramaniya Asari cannot deny the factum of partition suit filed by Samikkannu Asari and others and that therefore he had his own reservation to figure as a witness.
Madras High Court
Radhabai Ammal And Ors. vs Vasuki Ammal on 18 September, 1998
Equivalent citations: (1999) 1 MLJ 124
JUDGMENT K. Gnanaprakasam, J.
1. This Civil Miscellaneous Second Appeal has been filed against the order dated 22.7.1993 passed by the learned Additional District Judge, Cuddalore in C.M.A. No. 46 of 1991. The said C.M.A. had arisen out of the order passed in E.A. No. 941 of 1983 in O.S. No. 61 of 1989 on the file of the Sub Court, Cuddalore.
2. Subramaniya Asari was the petitioner represented by his next friend Radha Bai in E.A. No. 941 of 1984 in E.P. No. 281 of 1981 in O.S. No. 61 of 1969 on the file of the Sub Court, Cuddalore. The case of the petitioner is that one Pavadai Asari was the owner of the suit property, Pavadai Asari had taken his brother Ramalingam's son Dharmalingam, as his adopted son and hence Dharmalingam become entitled to the said property after Pavadai Asari. The natural father viz., Ramalinga Asari has been taking care of this property. Ramalinga Asari had left a Will on 7.9.1927 by which this property was given to Dharmalinga Asari to be enjoyed absolutely and by the said Will also Dharmalinga Asari became the absolute owner of this property.
3. While so, one Singaravelu Mudaliar son of Muthusamy Mudaliar got a decree in O.S. No. 61 of 1969 before the Sub Court, Cuddalore against one Samikkannu Asari who was not a party to the petition, that in pursuance of the said decree he had executed the same in E.P. No. 208 of 1981 and attached the properties on 21.5.1982 also brought the property to auction on 25.8.1983 and the properties were also purchased by the respondent on 28.10.1983 and delivery was also taken on 30.11.1983. It is stated that Samikkannu Asari had no manner or right in the said property and the actions taken in respect of the property were known to the petitioner. It is further stated that the petitioner is the son of Dharmalinga Asari and he has been in possession and enjoyment of the property for more than the statutory period and thereby he has perfected title to the said property.
4. The respondent in her counter had denied the Will dated 7.8.1927 said to have been executed by Ramalinga Asari in favour of Dharmalinga Asari and others, Her case is that the suit property originally belonged to one Samikkannu Asari. One Periyanagathammal and Gopiammal filed a suit in O.S. No. 193 of 1975 on the file of Sub Court, Cuddalore for partition and a preliminary decree was passed on 11,3.1977 and a final decree was also passed in I.A. No. 17 of 1981. As per the final decree, the suit property was allotted to the plaintiffs in the said suit. One Singaravelu Mudaliar got a decree in O.S. No. 61 of 1969 Sub Court, Cuddalore. On execution of the decree, the suit properties were brought to sale and the respondent herein had purchased the suit property in court. Auction on 28.8.1983 and the sale was confirmed and was delivered on 30.11.1983 and that in the said circumstances, the petitioner had no manner or right in the suit property. The claim of the petitioner is threefold.
(i) He got the property through his father Dharmalingam who got the property through his adopted father Pavadai Asari.
(ii) The natural father of Dharmalingam viz., Ramalingam had left a Will on 7.9.1927 in which these properties were given to Dharmalingam to be enjoyed by him absolutely and thus he got the property.
(iii) The petitioner and his father Dharmalingam have been in possession of the property for well over a period of statutory period and therefore they have perfected title to the suit property.
The trial court had considered the petition and the counter and found out that the petitioner has not proved that it is the property of the Pavadai Asari. On the other hand, Ramalingam had bequeathed this property to Dharmalingam, if it is the property of Pavadai Asari, Ramalingam cannot make disposition of the said property. As per the averments in the plaint in O.S. No. 193 of 1975 before Sub Court, Cuddalore which had been marked as Ex.R-2, it is stated that the property was owned by Samikkannu Asari and Vaidhyalinga Asari and they are the sons of Maniammal who is the second wife of Ramalingam. Dharmalingam is the first wife Ponnammal's son and it is stated that he had already been adopted by Pavadai Asari. Hence he could not get any property from Ramalingam, and that the property was partitioned between Samikkannu Asari and Vaidhyalinga Asari. The suit property was allotted to the wife of Samikkannu Asari. But it has been established that Samikkannu Asari was not residing in the suit property and he was residing at Tirukoilur and the petitioner viz., Subramaniya Asari alone had been in the possession of the suit property, Even at the time, when the ameena went, he found out Subramaniya Asari and his wife Radha Bai were residing in the said property. They have also produced several house tax receipts and also the receipts for the payment of electricity bills. Exs.P-1 to P-13 are the receipts for the payment of house tax stands in the name of Ramalinga Asari, Exs.P-14 to P-83 are the receipts for the payment of electricity bill in the name of Subramaniya Asari, which is relatable to the period from 1966 to 1982, which shows that the petitioner Subramaniya Asari and his wife Radha Bai alone have been in possession and enjoyment of the suit property. There has also been held that the petitioner has been in possession for a well over a statutory period and thereby perfected title to the suit property also. But the very same property was brought to auction and in the auction the respondent has taken through court and at that time, the suit property was lying vacant. However, the sale proclamation was signed by Subramaniya Asari which shows that he and his wife Radha Bai have been residing in the said property. But taking into consideration that the house tax receipts stood in the name of Ramalinga Asari and the electricity bills have been paid by Subramaniya Asari and that he had also signed in the said proclamation, the trial court came to the conclusion that Subramaniya Asari had been in possession and enjoyment of the suit property for well over then the statutory period and thereby perfected title by adverse possession, and that in view of the Samikkannu Asari has no manner or right or interest in the said property and even if he had, he had lost the same, By stating so, the trial court came to the conclusion that on the date of attachment, Samikkannu Asari has no manner or right or interest in the said property nor he was in possession of the same and that therefore accepted the claim of the petitioner and allowed the petition. As against the same, the respondent preferred the appeal in C.M.A. No. 46 of 1991 before the learned Additional District Judge, Cuddalore.
5. The lower appellate court had considered that the petitioner alone was examined as P.W. 1 and no doubt he has filed a Will dated 7.9.1927 which was marked as Ex.P-85, but the same was not proved. Even the trial court held that the petitioner has not proved the Will and the lower appellate court accepted the said finding and had come to the conclusion that the petitioner has not proved the Will.
6. The lower appellate court had also considered the other evidence in the case and came to the conclusion that the petitioner has not set forth the case that he has been in possession and enjoyment of the property in his own right as absolute owner and his possession and enjoyment of the property was adverse to the interest to the original owner and in the absence of the same it cannot be held that the petitioner has perfected title by adverse possession. But on the other hand, it had accepted that the suit property originally belonged to Samikkannu Asari and in the partition it was allotted to his wife. Periyanagathammal and Gopiammal and others and the petitioner herein was a witness to the final decree proceedings and the said property was attached and brought to sale and the respondent has purchased and the same was also confirmed and in the said circumstances, it is clear that the respondent is the owner of the property.
7. The lower appellate court had also observed that the petitioner was stated to be unsound of mind that no order has been obtained as provided under Order 32, Rule 15, C.P.C. and in the absence of the same, the petition is not maintainable. By considering all the above aspects conjointly the lower appellate court came to the conclusion that the sale in favour of the respondent is valid and the same cannot be questioned by the petitioner and thereby set aside the order of the trial court and allowed the appeal. As against the same the petitioner has preferred this appeal.
8. When this appeal came up for hearing before this Hon'ble Court, notice of motion alone was ordered and the appeal itself was taken up for hearing.
9. The learned advocate for the appellants has submitted that the suit property was bequeathed to Dharmalingam by his natural father Ramalingam under the Will dated 7.9.1927 and the same was marked as Ex.P-85. The said Will cannot be disputed as the attestors and the scribe to the Will were not available and the Will was of the year 1927, which is more than 30 years old document and the genuineness of the same cannot be disputed and it has got to be accepted. The learned advocate for the appellants has further submitted that the petitioners have filed the receipts for the payment of electricity charges from the year 1966 and the receipts for the payment of house tax in the name of his natural father Ramalingam to the suit property and therefore contended that having proved that they are continuously residing from the year 1966 and even prior to that and their possession has been continuous and uninterrupted and also adverse to the interest of all the persons and thereby perfected title. Even on the date of attachment of the property, the petitioner was in possession of the suit property which would show that the petitioner has been residing in the suit property even prior to that. The possession of the property with the petitioner under the Will dated 7.9.1927 has got to be accepted and in the said even except the petitioner, no one has got any right and that therefore the respondent's purchase of the property through the court auction is not valid.
10. On the contrary, the learned advocate for the respondent has submitted that the petitioner's case is not proved for the simple reason that her claim was three-fold.
(i) the property was the property of Pavadai Asari who had adopted Dharmalingam by which he got the property:
(ii) Dharmalingam's natural father Ramalingam had left a Will on 7.9.1917 by which the suit property was given to Dharmalingam:
(iii) The petitioner and his predecessor in title have been in possession of the suit property for well over a period of statutory period and thereby perfected title by adverse possession. As the petitioner, she is not entitled to take dubious pleas.
11. The learned advocate for the respondent has also submitted that the Will is not proved in the manner that is got to be proved. In fact, the original Will was not filed, only the copy alone was filed and no valid and proper Explanation was given for non-filing of the original.
12. The general presumption available under Section 90 of the Evidence Act is not applicable to the copy of the Will and the said submission is supported by the decision rendered in K.V. Subbaraju v. C. Subbaraju , wherein the Supreme Court held.
Such a presumption however, under that section arises in respect of an original document. Where a certified copy of the document is produced the correct position is as stated in Basant Singh v. Brij Raj Saran Singh, 67 LA. 180 : 69 M.L.J. 225 : A.I.R. 1935 EC. 132, where the Privy Council laid down that if the document produced is a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document.
Further under Section 69 of the Evidence Act which states that if no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. It is submitted that the said conditions are not fulfilled.
13. To support his case, the learned advocate for the respondent relied upon H. Venkatachala v. B.N. Thimmajamma , wherein the Supreme Court held as follows:
The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions, which govern the proof of documents, Sections. 67 and 68, Evilence Act are relevant for this purpose. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will.
14. The learned Advocate for the respondent has also further relied upon a decision reported inT. Venkata Narayana v. Venkata Subbamma and the same is not applicable to this case for the simple reason that it was the suit for injunction and the Will have to be probated in that case. In our case, the Will was not attacked on that ground.
15. The learned advocate for the respondent has also pointed out that the lower court in paragraph 9 of its judgment has concluded that Pavadai Asari himself has questioned about the sale in possession of the respondent and also filed an application under Section 47, C.P.C. Claiming right in the properties and the same was dismissed on 29.10.1985 and the order copy has been marked as Ex.R-9. According to the respondent, this document would clinch the entire matter in issue. Already there is an order that Pavadai Asari was not the owner and as against the order under Ex.R-9, Pavadai Asari did not go on appeal and hence it has become final. Consequently, it is yet to be proved that Ramalingam is the owner of the property through whom Samikkannu Asari got the property and as such the petitioner who is the son of Dharmalingam cannot at all claim the property and I see all force in the said submission.
16. The learned advocate for the respondent also submitted that the petitioner Subramaniya Asari was represented by his wife Radha Bai Ammal. It is stated that the petitioner was of unsound mind and therefore he was allowed to be represented by his wife and next friend Radha Bai Ammal. But the fact that Subramaniya Asari was unsound and his wife is permitted to represent the petitioner is not proved. No application whatsoever has been filed under Order 32, Rule 15, C.P.C. to permit her to act as next friend. The provisions of Rule 15,0.32 makes it possible for next friend to sue on behalf an adult person as a next friend only when the person is either so adjudged by a court of competent jurisdiction or if not so adjudged is found by the court on inquiry to be so. That is the foundation prima facie for a next friend to avail and proceed with the suit. Such inquiry is obviously an ex parte inquiry for the court to give a finding and to admit the plaint and issue the process to the otherside. This view was taken in the decision reported in Somanath v. Tipanna .
17. In a case reported in Rangaswami Reddi v. Gopalaswami Reddiar and Ors. (1978)2 M.L.J. 564, a Division Bench of the High Court held that under Rule 15 of 0.32, C.P.C. the court is directed to make an enquiry for the purpose of finding out whether the person concerned, by reason of unsoundness of mind or mental infirmity is incapable of protecting his interest when suing or being sued... It is settled by a series of decision of this Court as well as other courts that the responsibility cast upon the court under the provisions of the Code referred to above is very serious because a person concerned is denied, his liberty to take action purporting to be on his behalf, From one point of view if the person is not of unsound mind allowing another person to sue as a next friend on his behalf will be a total deprivation of the liberty of the person concerned to take care of his own interest and foisting on him another person to pursue a litigation which he himself might not have liked. By pointing out this decision, the learned advocate for the respondent had submitted that Subramaniya Asari was having a sound mind and neither the appellate court nor the trial court declared him or found him unsound of mind. But Subramaniya Asari wantonly made him to be represented by his wife by stating that he was unsound of mind of the reason that he has signed in the sale proclamation taken out by the respondent and if he comes to the witness box he would be precluded from giving evidence contra and to avoid the same, he has shielded himself by stating that he was unsound of mind and allowed to be represented by his wife Radha Bai Ammal. Further Subramaniya Asari cannot deny the factum of partition suit filed by Samikkannu Asari and others and that therefore he had his own reservation to figure as a witness.
18. The learned advocate for the respondent further submitted that even though Subramaniya Asari was alleged to be unsound of mind and allowed to be represented by his next friend Radha Bai Ammal, she was also not chosen to be examined in this case. But on the other hand, one Gnanasubramaniyam was examined as P.W.I on behalf of the petitioner who is an Advocate's clerk. It is argued that Radha Bai Ammal also cannot speak, otherwise and that therefore Gnana Subramaniya, according to the respondent at whose instance the petitioner has been filed has volunteered to be examined on behalf of the petitioner. It is further stated that he is the man behind the petitioner's application and that therefore his evidence cannot be accepted. No reason has been given for the non examination of even Radha Bai Ammal and hence the evidence tendered on behalf of the petitioner by the Advocate's clerk Gnana-Subramaniyam has got its own demerits and defects. By pointing out all these things, the learned advocate for the respondent has urged that the petitioner failed to prove that he was unsound of mind and the petition is to be dismissed on that ground alone.
19. The petitioner and the respondent were sufficiently heard. After considering all the submissions made by them, it is deduced that the petitioner is not entitled to claim the property through Dharamalingam who claimed to be the adopted son of Pavadai Asari and the said adoption was not proved. The other claims that he got it through Ramalingam under the Will dated 7.9.1927 and that they have also perfected title to the suit property were also not proved. When the petitioner is sure and certain that has got the property through his father Dharamalingam, he cannot relic upon the Will as he is not permitted to approbate and reprobate his own claim.
20. The petitioner also has not satisfactorily proved as contemplated under Rule 15, 0.32, C.P.C. that Subramaniya Asari was of unsound mind and that therefore he could be represented by his wife Radha Bai Ammal and in the absence of the same, the petition filed by the petitioner is not legally maintainable.
21. The petition filed by Pavadai Asari in E.P. No. 939 of 1983 in O.S. No. 61 of 1969 questioning the validity of the sale in favour of the respondent has already been dismissed by the court by its order dated 29.10.1985 and the said order has been marked as Ex.R-9 and on the basis of it, it is proved that the property did not belong to Pavadai Asari and conversely the property belonged to Samikkannu Asari.
22. As I come to the conclusion that this property was a property of Samikkannu Asari, the suit filed by Periyanagathammal and Gopiammal in O.S. No. 193 of 1975 on the file of the Sub Court, Cuddalore for partition and the decree passed thereon have got be accepted. When the suit for partition in O.S. No. 193 of 1975 is admitted, the suit filed by Singaravelu Mudaliar in O.S. No. 61 of 1969 Sub Court, Cuddalore against Samikkannu Asari and Velayuda Mudaliar and the decree passed in the said suit have got to be accepted. When the decree in O.S. No. 61 of 1969 Sub Court, Cuddalore is accepted then the purchase by the respondent in the court auction held in the said case on 25.8.1983 and purchase on 28.10.1983 have got to be accepted, In pursuance of the purchase, the respondent has taken delivery of the property on 13.11.1983 has got to be accepted.
23. Having come to the conclusion that Samikkannu Asari and others were the owners of the property and the respondent purchased the same in the court auction in O.S. No. 61 of 1969 sub Court, Cuddalore, I have to necessarily accept the case of the respondent that the sale in her favour is true and valid and the petitioner's claim is baseless and untrue.
24. In the result, the Civil Miscellaneous Second Appeal is dismissed. No costs.
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