In AIR 1968 Madras 346 (S.Chattanatha Karayalar vs. Vaikuntarama Karayalar and another), this Court in paragraph 2 has held as follows:
"Appointment of a guardian or next friend to a person who is incapable of managing his affairs is a serious inroad upon the litigant's right to carry on his suit. Such wedging of a personal right in a party cannot be deduced, inferred or even taken for granted because the other parties to the list have no objection to such an appointment. The Court has a primary duty to perform in such circumstances. It has to judicially enquire whether it is necessary in the interests of justice. Mere and sole reliance upon the wishes and sentiments expressed by the other parties to the suit would neither be a guide or a safe guide. Even so, the fact that the first plaintiff is deaf and dumb cannot make a significant difference. In fact, the first plaintiff himself does not subscribe to the position that he is so incapable of managing his affairs. Notwithstanding the consensus of opinion amongst the other parties to the suit, the court cannot dispense with the judicial enquiry contemplated under Order 32, Rule 15 and render a clear finding that the person concerned, by reason of his infirmity, either physical or mental, is incapable of protecting his interests in the suit. The holding of such an enquiry is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend."
Madras High Court
C.S. Navamani vs C.K. Sivasubramanian on 30 August, 2006
The Civil Revision Petition is filed against the order dated 06.06.2005 in I.A.No.633 of 2004 in 0.S.No.193 of 2O04 the file of the learned District Munsif, Gobichettipalayam, in discharging the Guardian.
2. The petitioner is the plaintiff in the suit. The petitioner, who is the son of the first defendant/respondent has filed a suit for permanent injunction restraining the defendants 1 and 2 from selling and against defendants 3 and 4 from purchasing A scheduled property and further reliefs in respect of B scheduled property. The plaintiff and the second defendant in the suit are the sons of the first defendant and they form a Joint Hindu Family. The family owns considerable landed properties and was doing money lending business. The said business was done in the name of a firm C.P.Kandasamy Mudaliar and Sons and for income tax purpose, a partition deed was made on 02.03.1964, during the life time of his grand-father. The said deed is sham and a nominal document.
3. The properties described as Item Nos.1 and 2 in B schedule are constructed out of joint family funds. The respondent due to old age, physical and mental weakness became incapable of managing the suit properties from 1997 and that he was taken care of either by the petitioner or his wife. The respondent preferred to live in his native place. He was senile and neurotic and treated by a Neurologist. In the year 2000, when the petitioner left for Erode, he made arrangements to take care of the respondent. Taking advantage of his absence and the mental infirmity of his father, the second defendant (his brother) exercised undue influence over his father and made arrangements to deprive the petitioner of his due share in the family properties by trying to sell away the suit properties.
4. The second defendant has filed a Written Statement and denied the averments made in the plaint. He further contended that the partition deed dated 02.03.1964 is valid and binding, and as per the deed, the respective parties are in possession and enjoyment of the properties. Though the respondent was staying in Gobichettipalayam along with the petitioner for medical treatment, he changed his decision and returned to Chettipalayam to live with his wife. The respondent is capable of managing his properties as well as the joint family house at Chettipalayam. The allegation that the respondent was coerced, that there was undue influence and the further allegation of attempt to dispossess the petitioner from the residential house, shown as item 2 of 'B' Schedule was also denied. The second defendant prayed for dismissal of the suit.
5. Earlier, the petitioner has filed a petition, I.A. No.570/2002, under Order 32 Rule 4 r/w Order 32 Rule 15 Civil Procedure Code to appoint a guardian to the respondent, contending inter alia that the respondent is not sane, mentally infirm and incapable of looking after his own affairs. The respondent was suffering from advance senility, loss of memory, loss of discretionary powers of worldly affairs and prayed for the appointment of respondent s wife, Mrs. M.A. Nagarathinam as a guardian or a Court Guardian, to represent him to conduct the suit.
6. The respondent has filed a counter affidavit to the above petition, wherein he has stated that he was able to manage the affairs relating to the suit properties, that he was capable of looking after his own affairs, his physical and mental condition was alright. He was treated by a Doctor at Erode about five years back when there was loss of memory and now he has recovered. Therefore, there is no necessity to appoint a guardian. Further, he has engaged an Advocate to defend him in the present suit. He has also filed a declaration to that effect. The Lower Court, proceeded exparte and without examining the respondent appointed a Court Guardian in I.A.No.570 of 2002 dated 17.9.2002.
7. On 24.4.2003, the respondent preferred a petition, I.A.No.633/2004 under Order 32 Rule 11 and 15 r/w 151 C.P.C. to set aside the order of appointment of guardian. Before the Lower Court, the respondent contended that earlier the guardian was appointed without a proper enquiry. He has recovered from the illness of loss of memory after treatment at Erode and since he is capable of taking care of his own affairs and managing the properties, he can defend the suit by himself and therefore prayed to remove the court guardian.
8. The petitioner herein has filed a counter affidavit contending inter alia that the respondent is not in a position to understand and the second defendant in the suit is exercising undue influence to serve his own interest. The court guardian is looking after the interest of the respondent and therefore prayed for dismissal of the petition.
9. No oral evidence was adduced on either side. On the side of the respondent, two documents have been marked, Ex.A1 - Medical Certificate, dated 22.05.2002 issued by Dr.Ganesan and Ex.A2 - Release Deed, dated 07.08.2003 executed by the respondent. No documentary evidence was adduced on the side of the petitioner. The recovery of the respondent was not seriously disputed by the petitioner and not much of opposition was there regarding the mental state of the mind. However, the petitioner has raised a technical plea that there was an exparte order, appointing a court guardian and unless the said order is set aside, the guardian cannot be removed.
10. During the hearing of this petition, the respondent has appeared before the learned District Munsif and has recorded as follows:
In this case, the petitioner himself had appeared before this Court and had shown his mental faculties and capacity to defend himself and states that he wishes to defend by appointing a counsel and so has appointed a counsel also. The Lower Court has further observed that, "the physical appearance of the respondent would substantiate his stand" and in such circumstances, the guardian was discharged. The said order of removing the guardian is the subject matter of challenge in this revision.
11. Learned counsel for the petitioner submitted that the Court below has failed to appreciate that Ex.A1-Medical certificate, dated 22.05.2002 ought not to have been relied upon, since the same was in existence at the time, when the Court guardian was appointed.
He further submitted that the said document cannot be relied upon in the year 2004, when there was no fresh material available to conclude that after the treatment, the respondent has recovered from mental infirmity. It is his further contention that Ex.A2-Release Deed, dated 07.08.2003 ought not to have been relied upon for the reason that the respondent was under the influence of the second defendant.
12. Placing reliance on a decision reported in 2004(3) MLJ 658 (Shakuntala Devi Vs.K.S.Naidu), learned counsel for the petitioner contended that removal of Court guardian cannot be ordered without conducting an enquiry in the presence of a doctor, to find out the state of mind and if the order is allowed to stand, the very basis of the Plaint would be lost.
13. Per Contra, learned counsel for the respondent submitted that there is no infirmity in the order of the Lower Court. Since the earlier order appointing a Court Guardian was passed exparte even without holding an enquiry on the basis of the allegations, it is always open to the respondent to take out an independent application to revoke the said order. He further submitted that the respondent did appear in the Lower Court and the order removing the guardian was passed after proper satisfaction.
14. In the above said circumstances, it has to be examined whether the order passed by the Lower Court is in conformity with the provision relating to appointment of guardian for an insane person or a person with mental infirmity.
15. To appreciate the submission that the Lower Court has failed to consider the provision in the proper perspective, it is necessary to extract the relevant provision which reads as follows:
"Rules 1 to 14 (except Rule 2A shall) as far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who though not so adjudged, are found by the Court on enquiry to be incapable by reason of any mental infirmity or protecting their interests when suing or being sued."
A plain reading of this rule leaves no doubt that the Court has to conduct an enquiry before permitting the next friend to institute the suit.
16. Before going into the correctness of the order passed by the Lower Court, the scope and the extent of judicial enquiry to be conducted by the Courts to determine the unsoundness of mind or mental infirmity has to be considered with reference to the provision, namely 32 Rule 15 C.P.C. Because, any order passed under this provision takes away the liberty of a person to defend himself. The enquiry contemplated under this provision is not to be dealt with in a casual manner.
17. A Division Bench of this Court in 1978 2 MLJ 564 (Rangaswami Reddi vs. Gopalaswami Reddiar) has held as follows:
"It is settled by a series of decisions 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 in his own way and some other person is imposed or foisted on him 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. On the other hand, if the person happends to be of unsound mind to deprive him of the opportunity of enforcing his remedies available under law by the interposition of next friend will cause serious prejudice to his interest and may even deny him and deprive of him of the means of livelihood or his source of income. Having regard to all these serious consequences which may flow in this behalf the Court owes a duty to the person concerned to conduct an enquiry for the purpose of satisfying itself whether the person is incapable of protecting his interest when suing or being sued by reason of unsoundness of mind or mental infirmity or not."
18. In AIR 1949 Madras 292 (A.S.Mohammad Ibrahim Ummal vs. Shaik Mohammad Marakayar and another), this court held that, "even when the memory has been recovered or sanity restored, the events of dark period remain dark and are never cleared up. So, the only safe course for the courts in the country is to follow regarding lunatics is to follow rigorously the procedure prescribed in order 32 Rule 15."
The procedure involves a judicial enquiry which consists, normally of two parts :
(i) questioning a lunatic by the Judge himself in open court or in chambers, in order to see whether he is really a lunatic and of unsound mind and
(ii) as the Court is generally proceeded over only by a layman to send the alleged lunatic to a Doctor for report about his mental condition, after keeping him under observation for some days."
19. In AIR 1957 Kerala 51, (Balakrishnan vs Kalyani), at para 3, the court has held as follows:
"To treat a person as one incapable of protecting his own interests by reason of unsoundness of mind or mental infirmity, is a very serious matter and it is in recognition of the seriousness of the matter that the legislature has insisted on a proper inquiry being made into that matter to enable the Court to come to a conclusion about the mental condition of the person concerned. The inquiry contemplated by R.15 is undoubtedly a judicial inquiry with notice to the party concerned or to any other person competent to speak on behalf of such party. It is for the Court to decide upon the manner in which and to the extent to which such inquiry has to be conducted to enable it to come to a satisfactory conclusion as to the mental condition of the party concerned.
If notice of such inquiry is given to the party, he may himself appear in Court and participate in the inquiry. If he appears or is brought before Court, his presence might enable the Court to form an impression about his mental condition. If it is deemed necessary he may be got examined by a medical expert and a certificate obtained from him as to whether he is mentally fit to protect his own interests."
In this case, the legality of an exparte order of the Lower Court, appointing a guardian to the defendant on the mere strength of allegations was questioned.
20. After considering various decisions relating to the scope and nature of enquiry to be conducted to determine unsoundness of mind or mental infirmity, the Andhra Pradesh High Court, in AIR 1963 AP 160 (Duvvuri Rami Reddi vs. Duvvudu Papi Reddi) evolved certain principles, which are as follows :
"(1) Order XXXII, R.15 C.P.C. places persons of unsound mind or persons so adjudged in the same position as minors or purposes of Rules 1 to 14.
(2) Order XXXII R.15 C.P.C. applies not only to a person adjudged to be of unsound mind, as under the old Code, but also to a person of weak mind.
(3) Where it is alleged that a party to a suit is of unsound mind, and the other party denies it, the Court must hold a Judicial inquiry, and come to a definite conclusion, as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interests in the Suit.
(4) Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others.
(5) Whether a person is of unsound mind or mentally infirm for the purpose of the rule and the extent of the infirmity has to be found by the Court on inquiry.
(6) Where the question of unsoundness of mind arises not only under O.XXXII, R.15 C.P.C. but is also one of the issues in the suit, the Court has ample jurisdiction to enquire into that question, and for that purpose seek medical opinion.
(7) The enquiry should consist not only of the examination of the alleged lunatic by the Judge, either in open court or chambers, and as Courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken.
(8) Of course, the opinion, of a doctor, as is the opinion of any other expert, under Sec. 45 of the Evidence Act, is only a relevant piece of evidence.
(9) The Court may also compel the attendance of the alleged lunatic before it, and to submit himself for medical examination. If the alleged lunatic is in custody, the Court may direct the next friend or any other person having custody to produce him before the medical expert for examination.
(10) Where the precaution of judicial enquiry is not observed, the person cannot be declared lunatic, and a guardian cannot be appointed for him.
(11) When a person is adjudged a lunatic irregularly and improperly, and notice was not served on him, and a guardian alone was allowed to appear and defend the suit and decree was passed owing to the guardian not putting up a proper defence, the alleged lunatic can treat the decree against him as an exparte decree, and have it set aside under O.IX R.13 C.P.C."
21. In AIR 1968 Madras 346 (S.Chattanatha Karayalar vs. Vaikuntarama Karayalar and another), this Court in paragraph 2 has held as follows:
"Appointment of a guardian or next friend to a person who is incapable of managing his affairs is a serious inroad upon the litigant's right to carry on his suit. Such wedging of a personal right in a party cannot be deduced, inferred or even taken for granted because the other parties to the list have no objection to such an appointment. The Court has a primary duty to perform in such circumstances. It has to judicially enquire whether it is necessary in the interests of justice. Mere and sole reliance upon the wishes and sentiments expressed by the other parties to the suit would neither be a guide or a safe guide. Even so, the fact that the first plaintiff is deaf and dumb cannot make a significant difference. In fact, the first plaintiff himself does not subscribe to the position that he is so incapable of managing his affairs. Notwithstanding the consensus of opinion amongst the other parties to the suit, the court cannot dispense with the judicial enquiry contemplated under Order 32, Rule 15 and render a clear finding that the person concerned, by reason of his infirmity, either physical or mental, is incapable of protecting his interests in the suit. The holding of such an enquiry is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend."
22. In the back drop of the legal principles enunciated in the earlier decisions, we shall now consider as to whether the discharge of a guardian by the Lower Court is in accordance with the laid down principles of conducting a judicial enquiry as contemplated under Order 32 Rule 15. The above decisions clearly mandate that the Court must conduct an enquiry before depriving a person of his liberty to defend himself. The importance of the right to defend has been consistently recognised by the Courts.
23. In 1992 L.W. 415, this Court had an occasion to consider as to whether mere physical presence of a person is sufficient to satisfy the test of judicial enquiry. In that case, the lower Court observed as follows :
The third defendant appeared in person on 17.04.1996. I found on examination as a man of quite sane. Hence, I do not find that the petition is maintainable. Petition is dismissed. While reversing the said order, this Court held that a regular judicial enquiry as to lunacy or insanity should have been conducted and a conclusion should have been arrived at, on that basis.
24. The enquiry contemplated under Order 32 Rule 15 is mandatory, to ascertain the mental state of mind of a person, before he is adjudged as unsound or mentally infirm, The word enquiry used in the provision means, to make an examination , to adjudge a person judicially as a lunatic or mentally infirm. Adjudge" means, to decide or to determine judicially , which means that there must be adequate materials to come to such conclusion, that a person has to be represented by a guardian.
25. When there is an allegation of unsound mind or mental infirmity, it is the duty of the Court to examine the individual and if necessary, seek the assistance of an expert to adjudge as to whether the individual is having a sound mind and capable of managing the affairs. As a precaution, the evidence of expert in the Medical profession will be useful in understanding the meaning and the symptoms of any disease dealing with mental deterioration.
26. In the present case, such a course has not been followed and therefore, there is no doubt that the court below has failed to adjudge the respondent as mentally infirm, necessitating the appointment of a guardian. Equally while removing the Court guardian the lower Court has simply observed that the respondent had appeared before the Court and shown his mental faculties and is capable of defending himself. Not even questions were posed to the respondent to ascertain as to whether he can understand and answer the same. Mental faculty is a broad term and it is beyond comprehension as to how the Court below can come to any conclusion by mere observation, particularly when the respondent had suffered from loss of memory, etc.,
27. In a decision reported in 2003 SC 1773 (Kasturi Bai and others vs. Anguri Chaudhary), one of the defendants in a partition suit filed an application before the Trial Court stating that she was 87 years old, lost her ability to understand and further not capable of giving instructions to her lawyer or anybody relating to the suit. A prayer was made by her that she be summoned in the Court for examination, if necessary to appoint a guardian. The Trial Court did not allow the application. On revision, the High Court directed the Trial Court that a guardian be appointed.
While reversing the order of the High Court, the Honourable Supreme Court held that a direction can only be issued to the Trial Judge to hold an enquiry as to enable it to arrive at a finding as to whether the applicant / defendant was incapable of protecting her interest by reason of any mental infirmity or not. As no such inquiry was held, the High Court committed jurisdictional error in directing the Trial Court that a guardian be appointed when the Trial Court had not made an enquiry in that behalf as required under Or. 32 Rule 15.
28. In a judgment cited by the learned counsel for the petitioner, in 2004 (3) MLJ 658 (Shakunthala Devi vs. K.S.Naidu and another), this court has held as follows.
As per Order 32 Rule 15, persons of unsound mind or persons so adjudged in the same position as minors for the purpose of Rules 1 to 14 (except Rule 2A) and for that purpose, the trial Court should examine the alleged lunatic either in open Court or in Chambers and in the presence of the Medical expert."
29. In the instant case, the Lower Court has failed to apply the principles and has mechanically appointed the Court guardian even on the previous occasion. The Court ought to have summoned the respondent and examined him, to adjudge that he is not capable of defending himself. The reliance placed on Ex.A1 - Medical certificate, dated 25.5.2002 is also erroneous.
30. In view of the above, the order and the decretal order of the Lower Court in I.A. No.633 of 2004, dated 06.06.2005 are set aside. The Lower Court is directed to conduct a judicial enquiry in accordance with the principles stated supra, by examining the respondent and then to decide as to whether by reason of unsoundness of mind or mental infirmity, the respondent is incapable of protecting his interest in the Suit, and dispose of the petition afresh in accordance with law.
In the result, the Civil Revision Petition is allowed with the above direction. Consequently, C.M.P. No.15347 of 2005 is closed. No costs.
abe [VSANT 7690]
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