1. This is a petition under Section 115 of the Civil Procedure Code, to revise the order of the learned Subordinate Judge Nellore, on I. A. No. 449 of 1959 in O.S. No, 73 of 1959 on his file. That application was filed under Order 32, Rule 15 of the Code of Civil Procedure to adjudge that the plaintiff is of unsound mind, and as such incapable of protecting his interests, and to appoint his daughter, Pelluru Rangamrna, as his next friend.
2. The relevant facts may briefly be stated. O. S. No. 73 of 1959 was filed by one Duvvuri Rami Reddi, Who was described as being of unsound mind, and represented by next friend and daughter, Pelluru Rangamma, for a partition of the properties set out in Schedules A to E into two equal shares, and allotment of one such share to the plaintiff, and for future profits and other reliefs.
3. It was alleged in the plaint that the plaintiff and the first defendant are brothers and sons of one Ranga Reridi. The plaintiff has no sons, and has five daughters, viz., plaintiffs next friend, and defendants 2 to 5. The joint family of the plaintiff and the first defendant owned extensive properties consisting of cultivable wet and dry lands, and also houses, and moveables, etc. The first defendant, though, younger than the plaintiff actively participated in the management of the family properties even during the life time of their father, Ranga Reddi, and in about 1939, he assumed the sole management of the family affairs. The plaintiff was from the beginning a man of weak intellect, mentally defective and utterly incapable of taking part in the management of the family properties, and looking after his own interests, and consequently, the first defendant acquired a position of domination and influence over the plaintiff. The plaintiff's mental condition deteriorated since 1948 and became frequently insane and uncontrollable, requiring his being kept sometimes under control, and was not in a position to understand or form a rational judgment of the effect of any of his acts.
The plaintiffs wife, with the help of her son-in-law, Pelluru Ganga Rami Reddy, attempted to have a partition of the plaintiff's share. The first defendant resented the same, and removed the plaintiff, when he was in a state of insanity, to a temporary residence at Nellore on the pretext of treatment for him. The plaintiff's wife, his next friend and her husband, Ganga Rami Reddi on enquiries learnt that the first defendant secured from the plaintiff some document to his advantage, which purported to be a partition-deed between the plaintiff and the first defendant, and that it was also got registered. The first defendant also with the help of his confederates got the plaintiff execute another deed dated 31-12-1952, and got it registered on 2-1-1953, and that that document purported to be a settlement deed by the plaintiff in favour of all his daughters. The plaintiffs wife, on looking into the registration copies of both the documents, discovered that the recitals therein were not true and were vitiated and void.
4. Plaintiffs next friend, Pelluru Rangaroma, filed an affidavit along with the petition I. A. No. 449 of 1959, that her father had been for a long time of unsound mind, and had bean utterly incapable of managing his own estate. She also filed along with her affidavit, the affidavits of two other persons who were personally aware of her father's infirmity of mind arid corroborating her statement. She, therefore, prayed that she may be permitted to institute the suit as the next friend of her father.
5. The said application was resisted by the first respondent (first defendant) who contended, inter alia, that the next friend is a divorced wife of one Ganga Rami Reddi, who after divorcing her married her sister, the fourth defendant, that the next friend in collision with Ganga Rami Reddi got the suit filed with a view to cause trouble to the defendant and to benefit themselves, on account of enmity between Ganga Rami Reddi and the first defendant. He maintained that bath the partition deed and the settlement-deed were genuine and executed by the plaintiff while in a sound disposing state of mind, that he was capable of looking after his affairs at the time of the execution, and safeguarding his interests in the suit, and that all those documents were also acted upon. It was also alleged that he was executing registered documents both before as well as after the execution of the said deeds.
6. The learned Subordinate Judge, by his order dated 10-8-1960 refused to appoint the next friend for the plaintiff, and dismissed the application.
7. Aggrieved by this order, the plaintiff's next friend has filed this Civil Revision Petition.
8. The learned Advocate-General on behalf of the petitioner contended that the order is unsustainable for the following reasons :
(1) that the purpose and amplitude of the enquiry under Order 32 Rule 15. C. P, C. are different and wider than those under Sections 41 and 64 of the Indian Lunacy Act, 1912;
(2) that the holding of an enquiry by the Court under Order 32 Rule 15 C. P. C. is mandatory; and,
(3) that an enquiry by the doctor having been ordered it ought not to have been revoked.
9. In order to appreciate fully those contentions, a few more facts may have fo be stated. The petition for appointment of the next friend, I. A. No. 149 of 1959 was, filed on 25-4-1959. The counter was filed on 25-11-1959, and the plaintiff was directed to be produced by the then Subordinate Judge on 30-11-1959. The 1st defendant filed I. A. No. 554 of 1959 under Order 32 Rule 15, C. P. C. read with Section 151 C. P. C. praying that the Court may direct the plaintiff submit himself for medical examination by a competent doctor to give an opinion of his present mental condition. In the affidavit attached to the petition, it was stated that the plaintiff was produced into Court on 30-11-1959, and on general examinition he impressed as a man of sound mind by responding to various questions cogently, and that, therefore, an expert's opinion would be of great assistance, and that the defendant was prepared to advance the initial expenses necessary for the purpose. The first defendant also deposited Rs. 100A forwards the fees of the expert, and an order was passed by the learned Subordinate Judge on 7-12-1959 that the plaintiff should be produced before the D. M. O., Nellore, who would observe, examine and report to the Court by 24-12-1959, and the petition was called along with I. A. No. 449 of 1959.
10. Another application, I. A. No. 579 of 1959 appears to have been filed on 9-12-1959 on behalf of the plaintiff. In the affidavit attached to that application, the next friend stated that she consented to the appointment of the D. M. O. because she thought he was an expert in mental diseases also, but that the District Medical Officer had no experience of mental diseases, and as the evidence of the doctor has a very important bearing, the plaintiff may be got examined by the medical experts at Madras, Hyderabad, or Visakhapatnam. That application was opposed by the first defendant on the ground that the appointment of the D. M. O. was with the consent of both the parties. He also stated that the plaintiff should be removed from the custody of the next friend, and kept under medical observation so as to avoid harassment to the plaintiff. On I. A. No. 579 of 1959 the then Subordinate Judge passed an order on (12-12-1959) that it is batter to get the plaintiff examined in a mental hospital so that the opinion obtained may be of an 'expert'. I. A. No. 579 of 1959 was allowed, and the plaintiff was directed to be produted in the Waltair Mental Hospital.
11. There appears to be a change of officers inJanuary 60. The petition was adjourned from time to timefor the receipt of the report, which was received on1-4-1960 Thereafter I. A. No. 534 of 1959 wasclosed, and the main petition, I. A. No. 449 of 1959 wasposted for enquiry to (sic)-7-1960.
12. The Superintendent, Mental Hospital, Visakhapatnam, who had kept Duvvuru Rami Reddi for observation from 2-3-1960 to 23-3-1960 (i.e., for twenty-two days) stated in his certificate (Ex. A-1) as follows:
'He is a mental defective, i. e., an individual with arrested or incomplete development of mind from birth or an early age'.
On 8-7-1960, the learned Subordinate Judge (who passed the impugned order) passed an order that in view of the medical certificate there was no need to record oral evidence. He, however, marked Exs. A-1, B-1 and B-2, heard the arguments, and adjourned the matter from 8-7-1960 to 20-7-1960 for orders.
13. On 20-7-1960 another order was passed that after perusing the authorities cited by the respondents he deemed it quite necessary that a full-fledged enquiry will have to be made to decide whether the plaintiff is of unsound mind or mentally defective, or a man of weak intellect, and is not capable of managing his own affairs, and that for that purpose, an opportunity will have to be given to the respondent to cross-examine the petitioner-plaintiff in the box and also to cross-examine the doctor who gave the certificate. The Subordinate Judge reopened the matter, and posted it for enquiry fo 10-3-1950. On that day, the order sought to be revised was passed.
14. It states that the plaintiff was present in Court, and that 'except that he has unshaven beard kept for the purpose of the Court today, he does not otherwise appear to be an idiot or infirm, or a person not capable of managing his own affairs'. It mentions that the Subordinate Judge put him necessary questions, like his welfare, avocation, relationships, and his presence in Court, and that he could answer all those questions like any normal person. The Subordinate Judge also stated that the plaintiff asserted that he attends to his cultivation, and, pays cist, and that he can sign his name well. He, therefore, concluded that the plaintiff was seen to be hale and healthy, answering all questions cogently, and that there was no more need to enquire or call the Superintendent of Mental Hospital who gave the certificate into the box and dismissed the petition.
15. The legal position may now be considered. Order XXXII Rule 15 of the Civil Procedure Code, is as follows :
'The provisions contained in Rules 1 fo 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued'.
16. In Ramanathan Chettiar v. Somasundararn AIR 1941 Mad 505 an application under Order XXXII, Rule 15 C. P. C. for the appointment of a guardian ad litem was filed on the ground that the defendant became mentally infirm subsequent to the institution of the suit. The trial Court, instead of holding a regular judicial enquiry contemplated under Rule 15, thought that it was sufficient to rely on the previous history of the litigation, and on the opinion it formed after looking at the defendant, and eliciting answers to some questions. The opportunity to adduce medical evidence was not given on the ground that the production of medical certificate would not advance the case any further. Pandrang Rao, J., held that there was no enquiry of the kind contemplated by law, and that the order must be deemed to be one in the irregular exercise of his jurisdiction. It was pointed out that, if the weakness of intellect is very great, and such as to make the party incapable of protecting his interests, he would come within the protection given by Order XXXII, Rule 15. The learned Judge held that in the absence of a record of the questions and answers, it was impossible for the Court of revision to decide whether the conclusion arrived at on that particular aspect was justifiable and that the enquiry was unjudicial and unsatisfactory. I respectfully agree with this decision of the learned Judge.
17. In Mohammed Ibrahim Ummal v. Shaik Mohammed Marakayar AIR 1949 Mad 292 Satyanarayana Rao J., held that, when the question of unsoundness of mind of the plaintiff arises not only under Order XXXII, Rule 15 but also as a substantial issue in the suit, the Court has ample jurisdiction to enquire into the question whether the plaintiff is really, by reason of unsoundness of mind or mental infirmity, incapable of protecting his interests or not, and that it was open to the Court to seek medical assistance, and relied on Lee v. Ryder (1822) 6 Mad 294 : 56 E. R. 1103. The observations of Neville. J., in Richmond v. Richmond (1915) 111 LT 273 were quoted with approval by the learned Judge :
'With regard to the question of whether in any, or what degree, she is capable of managing her own affairs, and being bound by her own contract and by her own acts, that, in my opinion, is always a question for the Court to decide before which matter comes...... although the Court must have evidence of experts in the medical profession who can indicate the meaning of symptoms and give some general ideas of the mental deterioration which takes place in cases of this kind. I think that is a matter of importance to bear in mind because although the witnesses in the present case are the most competent men to be found to give an opinion upon questions of insanity from a medical aspect of the case, I think their evidence here has shown pretty well that they are not the best persons in the world to decide a question which depends upon the weighing of evidence and the materiality of the facts that come before them.'
The learned Judge concluded that the Court was perfectly justified in seeking the assistance of experts. It was also ruled that the Court had power to compel the attendance of the plaintiff, and to examine not only the parties and the witnesses summoned by them, but also other persons whom the Court thinks necessary, and that the Court is entitled to direct that the plaintiff should be subjected to the examination by an expert whom the Court appoints-
18. In Amulya Ratan v. Kanak Nalini Ghose, : AIR1950Cal30 a Bench of the Calcutta High Court held that to bring a case under Order XXXII Rule 15, it was not necessary for the plaintiff to prove that he was absolutely insane, and that it was sufficient if it was proved that he was suffering from such mental infirmity as rendered him unfit to protect his own interests.
19. In Periaswami Goundan, in re : AIR1954Mad810 , Ramaswami, J., reviewing the earlier cases held, that while the old section of the C. P. C. was applicable to persons of 'unsound mind' the present rule (Order XXXII, Rule 15) applies to persons suffering from any mental infirmity in consequence of which he is incapable of protecting his own interests, and that a person who is not of unsound mind may yet be mentally infirm within the meaning of Rule 15 and relied on, : AIR1950Cal30 . Following the decision in Nanak Chand v. Banarsi Das, AIR 1930 Lah 425, the learned Judge held that a deaf mute, who has been leading a family life with his wife and children and eaking his livelihood by grazing cattle, but who could not be understood by ordinary persons who are unacquainted with him, and not capable of understanding such persons is governed by Order XXXII, Rule 15, and that a next friend should be appointed for him. It was observed by the learned Judge that if really he is mentally infirm, and a next friend or guardian is not appointed even by mistake, the decree is void.
20. In Ganga Bhavanamma v. Somaraju, 1955 Andhra LT (civ) 533 : (AIR 1957 Andh-Pra 938), Subba Rao, C. J. (as he then was) and Satyanarayana Raju, J. considered the scope of Sections 3(5), 62 and 65(2) of the Indian Lunacy Act, and held that the Court has power to dismiss an application under the Lunacy Act, in lirnine, without directing inquisition, and that the words 'idiot' and 'unsound-ness of mind' both indicate an abnormal state of mind, as distinguished from weakness of mind or senility following old age, and that a man of weak mental strength can be called an idiot or a man of unsound mind. This case is an authority for the position that the provisions of Lunacy Act apply only to idiots or persons of unsound mind, but not to dull-witted persons, or to persons with lesser degrees of intellectual competence or mental infirmities to whom also Order 32 Rule 15 applies. That being the case, the Court was not bound to order inquisition under the Lunacy Act if after recording the evidence of the persons acquainted with him, and the examination by the Court, the Judge is satisfied that he is not an idiot of a lunatic.
21. In Balakrishnan v. Balachandran, (1956) 1 Mad LJ 459, Panchapakesa Ayyar, J., referred to, AIR 1941 Mad 505, and AIR 1949 Mad 292 and laid down that Order XXXII, Rule 15 C. P. C. is intended to ensure that no man is adjudged a lunatic without proper enquiry, and that the Court should hold a judicial inquiry and it may seek the assistance of medical experts. It was pointed out that the only safe course to adopt regarding the lunatics is to follow strictly the procedure prescribed in Order XXXII, Rule 15, Civil Procedure Code, and that if the precaution of a judicial inquiry is not observed, a man cannot be declared to be a lunatic., and a guardian appointed for him on that basis. A decree passed against a defendant in such a case owing to the guardian not putting up proper cr sufficient defence must be considered to be an ex parte decree, and must be set aside. At page 461, the learned Judge observed :
'That procedure involves a judicial inquiry which consists normally of two parts: (1) questioning the 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 (2) as the Court is generally presided 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..... When this elementary precaution of a judicial inquiry prescribed by law is not observed, I am afraid that the laws of this country will not allow a man to be declared a lunatic and a guardian appointed for him, on such basis.'
22. From these decisions, the fallowing principals emerge :
(1) Order XXXII, Rule 15 C. P. C. places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rules. 1 to 14.
(2) Order XXXII Rule 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 Order XXXII, Rule 15 C. P. C. but is also one of the issues in the suit, the Court has amole 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 witnesses produced by either party, but also 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 Section 45 of the Evidence Act, is only a relevant piece of evidence.
(9) The Court may also compel the attendance cf 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 Irregularity 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 gutting up a proper defence, the alleged lunatic can treat the decree against him as an ex parte decree, and have it set aside under O. IX Rule 13 C. P. C.
23. Applying these principles to the facts of the present case, the position is this. In this case both the parties wanted examination of the alleged lunatic by the medical expert. The plaintiff was in fact kept under observation of the Medical Officer for about 21 days, and tie gave his opinion that the plaintiff was a mental defective, explained 10 mean that he was an individual with arrested or incomplete development of mind from birth or an early age. Further, the next friend and two others have filed affidavits to support the case of infirmity of mind. No evidence contra was adduced by the first defendant. Prima facie, the case of infirmity of mind was, therefore, made out. Further, the Subordinate Judge himself passed an order on 20-7-1960 that it was necessary to have a full-fledged enquiry, and that an opportunity should be given to the respondents to cross-examine the plaintiff and also to cross-examine the doctor who gave the certificate. That order dated 20-7-1960 of the Subordinate Judge is right, and in accordance with law, and he should have implemented it by giving an opportunity to the defendants to adduce rebuttal evidence, and after the entire evidence was adduced, he should have decided whether the plain-tiff suffered from infirmity of mind, and whether it was of such a character that prevented him from safeguarding his interests.
Instead, the Subordinate Judge, without assigning any reasons whatever, went back upon that order dated 20-7-1960 examined the plaintiff in court, and concluded that he did not appear to be an idiot or an infirm person incapable of managing his own affairs. This conclusion, it is needless to add, was arrived at exclusively upon his own examination and opinion, which cannot be said to be satisfactory, much less judicial. Even the questions and answers have not been recorded. The decision under Order XXXII. Rule 15 is one fraught with serious consequences, as it results in the rights of a party to conduct his own litigation being taken away, and the guardianship of another forced upon him, or even though he is unable to safeguard Ms interests, no suitable guardian would be appointed to conduct the litigation on his behalf. Having adapted the right procedure the trial Court was not justified In going back on its earlier order, and direct an enquiry.
24. Sri Kuppuswamy, the learned advocate for the respondent, contended that the enquiry, apart from the examination of the party by the Court, was not obligatory, and that, when, on examination by the Court, the Judge was satisfied about the mental condition, it was not incumbent upon him to proceed further. He also relied on the fact that Ex. B-2, the plaintiff made a declaration before the Revenue authorities on 16-12-1957, that the properties covered by the Settlement deed, Ex. B-1, were settled by him on his five daughters, and that the con-tents thereof were true to his knowledge and belief. He also urged that the partition deed and the Settlement deed are registered instruments. Those documents, Exs. B-1, B-2 and B-3 no doubt, arc relevant pieces of evidence, but were not relied on by the learned Subordinate Judge. In any view, it cannot be said that the enquiry contemplated by Order XXXII Rule 15 C. P. C, was complied with by the examination conducted by the Court.
25. It was also contended on behalf of the respondent that medical opinion and other evidence, apart fromthe examination of the alleged lunatic by the Court, may be necessary only for the purpose of declaring a person to be suffering from infirmity of mind, and appointing a guardian or next friend. I cannot accept this contrition. It need hardly be stated that the prejudice that would be caused by an incorrect decision under Order XXXII, Rule 15 C. P. C. is grave. The necessity for adopting a correct procedure cannot depend upon the view that a Court may ultimately take in the matter. The law indicates the procedure to be followed with a view to ensure a correct conclusion being reached and cannot be ignored. The decision of a Bench of this Court in Kilambi Venkata Rangacharyulu v. Kilambi Gopala Krishnama Charyulu, (1961) 2 Andh WR p. 246 : (AIR 1962 Andh Pra 110) was also pressed into service. In that case, it was ruled that under Section 62 of the Lunacy Act, the Court has got a discretion whether or not to direct an inquisition under the Act. As already noted, the scope, amplitude and purpose of the enquiries into mental condition under the Lunacy Act and the C. P. C. are not identical. It was held in that case that when, the District Judge who interviewed the lunatic, and examined him, came to the conclusion that the party was physically fit and did not appear to be weak or senile, and as a result of his examination concluded that there is no basis for the allegation that he was of unsound mind or an idiot, he was justified in dismissing the petition for inquisition. It may be mentioned that the alleged lunatic in that case was also interviewed by the learned Judges, who, on examination were satisfied that there was nothing abnormal in his behaviour or talk or mental powers. I do not think that this decision helps the respondent to any extent.
26. Mr. Kuppuswamy then contended that the plaintiff himself stated before the Court on 10-8-1960 that he wanted to prosecute the suit. Placing reliance on that statement for deciding the question would only be begging the question.
27. For these reasons, I hold that the Subordinate Judge acted with material irregularity and illegality in the exercise of his jurisdiction, and his order dismissing the petition for appointing a next friend constitutes an error of law. This order may not be understood as an expression of my opinion about the mental condition of the plaintiff one way or the other.
28. In the result, the order of the Subordinate Judge Is set aside. The petition is remanded to the Court below for fresh disposal according to law in the light of the foregoing observations after giving both parties an opportunity to adduce all the evidence they think necessary. The costs of this petition will abide the event, and should bs provided for in the revised order of the lower Court.