Law Web: Whether a deaf and dumb person can file suit through next friend?

Similarly, in Raveendran v. Sobhana (2008 (1) KLT

488), a Bench of this court considered the question whether a

deaf and dumb person can be said to be a person suffering from

mental infirmity. It was held that “mental infirmity is not mental

disorder. It is not mental illness or unsoundness of mind or

insanity. It only indicates the weakness of intellect and in the

particular context of Order 32 Rule 15, weakness of intellect to

the extent of making a person incapable of protecting his

interest in the litigation. Thus a person who is not of unsound

mind may, yet be a person who is mentally infirm, thus entitling

him to the protection under Order 32 Rule 15. Idiocy or

unsoundness of mind indicates an abnormal state of mind,

whereas mental infirmity only indicates weakness of mental

strength. The scope of enquiry under Order 32 Rule 15 is the

assessment of the capability of a person either of unsound mind,

or suffering from any mental infirmity deafness or dumbness as

to whether such defects are infirmity or weaknesses would

render a person incapable of communicating his views, wishes or

thoughts. Thus, the legal position is that mental infirmity in the

context of Order 32 Rule 15 is not mental disorder, insanity or

mental illness. Weakness of mind due to any reason, making a

person incapable of protecting his interests, is sufficient to unfold

the protective umbrella under Order 32 Rule 15. Such infirmity

can also be caused by physical defects like deafness or

dumbness, whereby a person is made incapable of

communicating his wishes, views or thoughts to others who are

not acquainted with him”.

21. Sri. Alias M. Cherian contended vehemently, that, the

enquiry contemplated under Order 32 Rule 15 was not carried

out by the trial court and the omission has vitiated the entire

proceedings before trial court and the impugned judgment as

well. According to him, failure of the trial court to adjudicate

upon the capability of the plaintiff to protect her interests has

resulted in a serious error in the procedure adopted. The counsel

referred us to several decisions of this Court, including

Rasheeda v. Nazeer (2011 (3) KLT 218), Balakrishnan v.

Kalliyani (1957 KLT 268), Cleetus v. South Indian Bank (2007

(3) KLT 868) and canvassed that it is obligatory on the part of the

court to conduct a judicial enquiry as to the capacity of the

plaintiff, especially since grant of such a permission to the next

friend to institute a suit would certainly affect the civil rights of

the plaintiff.

22. Even though the aforesaid submissions were impressive

on first blush, on going through the records we find that factually

there is a difference in this case on a few material circumstances.

These material differences persuade us to first appreciate on the

happenings in the court below, instead of applying the decisions

relied on by Adv.Sri.Alias M.Cherian. Records reveal that a

separate application was filed by the next friend, who is none

other than plaintiff’s own daughter, as I.A. No. 995 of 2011, on

the date of filing of the suit itself, seeking permission to institute

the suit, through a next friend. The said application was allowed

after taking a composite statement for appointment of a next

friend as well as for permission to sue as an indigent person. The said order was never challenged by the defendants. Accepting

that I.A. No.995 of 2011 was allowed at the numbering stage,

when the defendants were yet to appear, still, the need for

appointment of a trained interpreter for helping the plaintiff to

give evidence as PW1, that too in the presence of the 1st

defendant, was felt and understood by the court and the same

was also not objected to by the defendants. Further, at the time

of trial, the plaintiff while being examined as PW1 deposed

through the interpreter, that, she has instituted the suit and also

produced Ext.A3 to prove that she is deaf and dumb and there

was no cross-examination even on that aspect. Plaintiff’s

ratification before the court during her deposition, regarding the

filing of the suit, renders all technical objections relating to the

defects of appointment of a next friend and of the next friend’s

eligibility to institute the suit, otiose. In such circumstances, we

reject the arguments of the appellant against the appointment of

a next friend and hold that the appointment of a next friend in

the facts and circumstances of the case was proper.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR.JUSTICE S.V.BHATTI

MR. JUSTICE BECHU KURIAN THOMAS

R.F.A (INDIGENT) No.306 OF 2019

MARY Vs LEELAMMA

Dated this the 30th day of June, 2020

Bechu Kurian Thomas , J.

Total deprivation, through a partition deed and a release

deed, of the property of a deaf and dumb sister forced her to

approach the Court to restore her rights in her property and

claim partition. Suit having been decreed, the eldest sister – the

beneficiary under the two documents, has come up in appeal.

2. Mary, Leelamma and Aani are sisters. Mary is the eldest

and Aani, the youngest. Admittedly, Leelamma, the second

amongst the sisters, is a deaf and dumb person. She is also

illiterate. Mary claims to have brought up Leelamma under her

care and custody, conducted her marriage and that of her

daughter too. Leelamma’s conjugal life with her husband did not

last long as she came back along with her daughter to Mary’s

care, on account of difference of opinion with her husband. Even

after the death of their mother, Leelamma continued to live with

Mary.

3. On 9-3-2011, Leelamma through her daughter Manju, as

next friend, filed a suit as an indigent person before the Munsiff

Court, Muvattupuzha, which was later transferred and renumbered

as O.S. No.17 of 2015 on the files of the Subordinate

Judge, Muvattupuzha. Alleging that the partition deed (Ext.A1)

and the release deed (Ext.A2) executed on 5-1-2011 and

10-1-2011 respectively, were on account of fraud and undue

influence exerted over the plaintiff, she sought for setting aside

those two documents and for a declaration that the said deeds

shall not affect the plaintiff’s right over her properties. For easier

reference, the parties are referred to in this judgment, as they

were arrayed in the trial court.

4. Ext.A1 is a partition deed, partitioning the 65 cents of

property between the three sisters. As per the said deed, the

properties left behind by their mother, having an extent of 65

Cents, was divided as two schedules - A and B. 1st defendant-

Mary was allotted A schedule, comprising 60 cents, while B

schedule, comprising just 5 cents, was allotted to the share of

both plaintiff and the 1st defendant. Aani, the youngest sister

and 2nd defendant, recited in the document that she is

relinquishing her share in the properties. Thus, in short, when

plaintiff received 2.5 cents of property under Ext.A1, the 1st

defendant received 62.5 cents of property. Ext.A2 is a release

deed executed within 5 days of execution of Ext.A1. Through that

document, plaintiff is purported to have released her entire rights

in the above referred 2.5 cents of property in favour of Mary.

Thus Mary, the 1st defendant, became the absolute owner of the

entire 65 cents.

5. When plaintiff’s daughter visited her during the last

week of January 2011, plaintiff conveyed through gestures, that

she had been taken to some place to give her signature and that

her thumb impression was also taken. On enquiry, plaintiff’s

daughter understood that Ext.A1 and A2 were created and that

all rights in the property had been released by the plaintiff in

favour of the 1st defendant, without even receiving any

consideration. Plaintiff thus alleged that, Exts.A1 and A2 were

created by undue influence, fraudulently, dishonestly and

without her knowledge or consent.

6. The defendants filed separate written statements and

controverted all allegations in the plaint. The 1st defendant

questioned the right of the next friend to file the suit and also

denied the incapacity of the plaintiff as far as her ability to

comprehend and do things by herself was concerned and also

denied the allegation of fraud, cheating and undue influence

exerted by the defendants over the plaintiff. On the contrary, the

1st defendant stated that plaintiff and her daughter were looked

after by the 1st defendant and her husband and they even got

plaintiff's daughter married off. 1st defendant pleaded that

plaintiff had agreed to execute the partition deed and that the

documents were executed with full knowledge and consent of the

plaintiff and also that she had received consideration for

releasing her half right over the schedule property as per Ext.A2.

The 2nd defendant, adopted the contentions in the written

statement of the 1st defendant and further stated that the

impugned documents were validly executed and that they are

binding on the plaintiff.

7. In order to prove the plaint averments, plaintiff examined

herself, through an interpreter appointed by the court, as PW1.

She further examined the Sub-Registrar who registered the

impugned document as PW2 and also her daughter – the next

friend as PW3 and marked Ext.A1 to Ext.A6. The defendants

examined the 1st defendant as DW1 and marked Ext. B1 to

Ext.B8. The 2nd defendant did not mount the witness box.

8. The learned Subordinate Judge, after a detailed

consideration of the facts and circumstances arising in the case,

decreed the suit by declaring that the documents Exts.A1 and A2

are null and void with respect to the share of the plaintiff and

also directed the property to be divided into three, by metes and

bounds, and declared that the plaintiff is entitled to get one third

share. 1st defendant has come up in appeal.

9. We heard the learned counsel for the appellant Sri Alias

M. Cherian and also Smt. Manju, who is the next friend of the

plaintiff and her daughter, who argued in person.

10. Sri. Alias M. Cherian, learned counsel, assiduously

argued that appointment of a next friend in the circumstances of

the case was clearly illegal in as much as plaintiff was neither of

unsound mind, nor had any infirmity of mind entitling her to be

represented by a next friend. He submitted further that failure of

the trial court to raise a plea as regards the competence of the

next friend has rendered the judgment perverse. The learned

counsel further argued that the plaint lacks in specific pleading

regarding the allegation of fraud and undue influence. He also

pointed out that the documents were executed undoubtedly for

consideration and also that there was nothing wrong in execution

of the said documents.

11. Smt. Manju submitted that the plaintiff is wholly

incapable of taking care of herself and does not have even the

capacity to comprehend things either in part or in full, which

necessitated the appointment of the next friend on an

application submitted. It was pointed out that since the plaintiff

herself was examined as a witness, the contentions regarding the

irregularity in the appointment of the next friend has no legs to

stand. She also pointed out that the plaintiff has been deprived

of all property by the documents impugned in the suit and albeit

the availability of many relatives, including plaintiff’s own

daughter, none of them were made witnesses to the

transaction/deed all of which cast doubts on the veracity of the

documents. The partition is unconscionable and was executed

without free consent after exerting undue influence and by

playing fraud.

12. In view of the aforesaid facts and arguments raised, the

following points arose for determination in this appeal.

(1) Whether appointment of a next friend for the plaintiff

was proper in the facts and circumstances of the case?

(2) Whether Ext.A1 and Ext.A2 documents are null and void

on account of undue influence or fraud or both?

(3) Whether plaint schedule property is liable to be

partitioned, if so to what extent?

(4) Whether the trial court judgment is liable to be affirmed,

modified or reversed?

(5) Who shall bear the costs?

Point No.1

13. Order 32 of the Code of Civil Procedure 1908 deals with

Suits by or Against Minors and Persons of Unsound Mind.

Appointment of a next friend for a person with unsound mind is

dealt with in Order 32 Rule 15 of the Code Of Civil Procedure

1908 and the same is extracted as below:

“O.32 R.15. Rules 1 to 14, (except rule 2-A) to

apply to persons of unsound mind.- Rules 1 to 14

(except Rule 2-A) shall, so 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, of protecting their interest when

suing or being sued.”

14. Though the heading of the section mentions only

persons of unsound mind, a reading of the above extracted

provision will show that it deals also with persons of mental

infirmity, who are, by the said reason, incapable of protecting

their interests, except with the assistance of a next friend, when

suing or being sued. Legislature has used two terms in the same

provision – ‘unsound mind’ and ‘mental infirmity’. Certainly, both

are not intended to cover the same situation. This is all the more

so since, the word mental infirmity was not part of the statutory

provisions in Section 463 of the Civil Procedure Code of 1882, but

was inserted in the corresponding provision of Order 32 Rule 15

of C.P.C 1908.

15. While interpreting a statutory provision, Courts start

with the presumption that every portion of a statute has some

purpose and also that the presence of each word in a provision,

is necessary to effectuate that purpose. Legislature does not use

words in surplusage and every word in a statute must be given

due meaning and application. It is also not a sound principle of

construction of statutes to brush aside words in a statute as

being inapposite surplusage. Reference can usefully be made to

J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of

UP (AIR 1961 SC 1170), Aswini Kumar Ghose & Another v.

Arabinda Bose & Another (AIR 1952 SC 369). Viewed in the

above perspective and the principles of interpretation, we have

no doubt that, the word 'mental infirmity' has been used in Order

32 Rule 15 C.P.C., to convey a meaning, which is wider and which

would encompass something more than what the word

'unsoundness of mind' would cover.

16. The term 'mental infirmity' has not been defined in the

C.P.C, 1908. In the context in which the term is used in Order 32

Rule 15 C.P.C., it is capable of taking a meaning different from

that of unsoundness of mind. What would that meaning be?

17. Cognitive skills are used to comprehend, process,

remember, and apply incoming information to create an external

reaction. The cognitive skills are the core skills a person’s brain

uses to think, read, learn, remember, reason, and even pay

attention. The cognitive functions enable us to orient ourselves in

the world, making us aware of the various dangers and rewards,

assimilate the main sources of pleasure and pain, and are also

the means by which we receive information from others. An

infirmity in the cognitive faculty which impairs the skills of

perception, discernment, comprehension and thought, will

necessarily have an impact on the mind. A hearing impaired

person becomes dumb on account of the impairment of his skills of perception, discernment, comprehension thought and

response. Living as a deaf and dumb person, has a debilitating

effect on the mental faculties of comprehension, thought,

communication and even response. These faculties when

affected will have an effect on the person's capacity to protect

his civil rights. In the matter of communicating his views about

his civil rights, a deaf and dumb person will be weak. If the

impairment of hearing is to such an extent that it is almost

difficult to communicate with that person, or even comprehend

any reply given by him, except by understanding the signs by

which one communicates with him, then there arises a weakness of the mind. This weakness, akin to an infirmity, makes it almost impossible for any person, other than those intimately acquainted with that person or a trained interpreter, either to reach his mind or to interpret it. When the infirmity of hearing is to such an extent that no one, other than those closely

associated with that person or an interpreter alone is able to

communicate and reach that person’s mind, then, that infirmity

could be regarded as a mental infirmity for the purpose of Order 32 Rule 15 of the C.P.C. Such a person though not mentallyunsound, is, for the purpose of Order 32 Rule 15 of the Code of Civil Procedure, 1908, a person who is mentally infirm.

18. We are fortified in the above conclusion by three

decisions of different High Courts, including one of Kerala High

Court. In Nanak Chand and Ors. v. Banarsi Das and Ors.

(126 Ind.Cas. 579 = AIR 1930 Lah. 425), while dealing with the

case of a deaf and dumb person under Order 32 Rule 15, it was

held that “it is only by means of signs that one can communicate

with him and his replies can be given only by means of signs,

and it further appears that only a few persons who know him

intimately are capable of making him understand by signs what

they desire to convey to him or to follow his replies given in a

similar manner. Under the circumstances, I should say that it is

almost impossible for any person not intimately acquainted with

him either to reach his mind or to interpret it. No definition of the

expression ‘mental infirmity is to be found in any of the books on

the subject dealing with mentally defective persons, nor did the

counsel on either side refer to any authorities on the subject; the

case, therefore, is one of first impression, and after giving the

matter my careful consideration I am of the opinion that Rule 15,

Order 32, is intended to cover the case of persons like Dina Nath

who are absolutely deaf and dumb and on that account are

incapable of receiving any communications or of communicating

their wishes or thoughts to others.”

19. In In Re: Periaswami Goundan (AIR 1954 Madras

810) the Madras High Court, considering the difference in the

wording of the Civil Procedure Code, 1882 and that in Code of

Civil Procedure, 1908, wherein the word mental infirmity was

added apart from unsoundness of mind held that the scope of

the rule had been enlarged and that it covers case of persons

incapacitated from protecting the interest by reason of him being

a deaf mute also.

20. Similarly, in Raveendran v. Sobhana (2008 (1) KLT

488), a Bench of this court considered the question whether a

deaf and dumb person can be said to be a person suffering from

mental infirmity. It was held that “mental infirmity is not mental

disorder. It is not mental illness or unsoundness of mind or

insanity. It only indicates the weakness of intellect and in the

particular context of Order 32 Rule 15, weakness of intellect to

the extent of making a person incapable of protecting his

interest in the litigation. Thus a person who is not of unsound

mind may, yet be a person who is mentally infirm, thus entitling

him to the protection under Order 32 Rule 15. Idiocy or

unsoundness of mind indicates an abnormal state of mind,

whereas mental infirmity only indicates weakness of mental

strength. The scope of enquiry under Order 32 Rule 15 is the