1. This second appeal is before us on a reference made by our learned brother Muktadar, J.
2. The defendant is the appellant. The suit is filed by the next friend and guardian of the 1st plaintiff for a declaration that the sale deed Dt. 25-5-1973 is null and void on the ground that it was executed by the 1st plaintiff who is person of unsound mind. Along with the plaint, I.A. No. 181/74 was filed by the wife under O. XXXII. R. 15 C.P.C. to appoint her as the next friend and guardian. This petition is supported by the affidavit of the wife stating that her husband was of unsound mind and was incapable of protecting his interests. Three affidavits of the persons belonging to the same village were also filed. On this material, the learned District Munsif before whom the suit was filed passed an order on 6-7-1974 directing the suit to be registered and also observed that the petition is allowed. Having passed this order, the district Munsif ordered notice to the respondents. The 1st Plaintiff died on 18-11-1974 When I.A. No. 181/74 came up for orders, the learned District Munsif dismissed the application as having become infructuous as by then his wife and minor son were brought on record as his legal representatives. Subsequently the suit was posted for trial.
3. The main issue in the suit was whether the sale deed Dt. 25-5-1973 was executed by the 1st plaintiff in an unsound state of mind. Several witnesses were examined on either side. On a consideration of the evidence the trial Court found that plaintiffs 2 and 3 have failed to establish that the sale deed was executed by the 1st plaintiff in an unsound state of mind. On this finding, the suit was dismissed.
4. The 2nd plaintiff carried the mater in appeal in A. S. No. 170 of 1977. By its judgment Dt. 17th October. 1978 the appellte Court reversed the decision of the trial Court and decreed the suit holding that the 1st plaintiff was a person of unsound mind and the sale deed executed by him on 25-5-1973 is null and void.
5. Aggrieved by the said judgment the defendant preferred this appeal.
6. Mr. N. V. Ranganadhan, learned counsel for the appellant, raised two contentions: (1) the suit itself is incompetent and not maintainable inasmuch as no enquiry was conducted as required by the mandatory provisions of order XXXII, R. 5 C.P.C. he submits that an elaborate enquiry should have been conducted before allowing the suit to be instituted by the next friend with regard to the fact that the 1st plaintiff was of unsound mind. Since no enquiry was conducted, the suit must be held to be not maintainable. (2) the second submission of Mr. Ranganadhan is that the finding of the appellate by the 1st plaintiff in an unsound state of mind in not sustainable as there is no sufficient evidence on record and the 1st plaintiff was not subjected to any medical examination.
7. We will first take up the second submission. Suffice it to say that this has to be rejected in limine as we are sitting in second appeal and the corectness of findings of fact cannot be canvassed in a second appeal. The appellate Court has given reasons in support of its order and the finding is supported by evidence. Insufficiency of evidence is not a matter which can be canvassed in a second appeal and the findings of fact are binding on us. We, Therefore, reject the second contention.
8. We now take up the first contention based on the provisions of O. XXXII, R. 15 C.P.C. to appreciate this submission, it is necessary to extract that provision which reads as follows:
15. 'Rules 1 to 14 (except R. 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, or protecting their interest when suing or being sued'.
9. 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. But the method and manner in which the enquiry has to be conducted is not indicated in the rule. In the present case, the suit was filed on 3-7-1974. The application under O. XXXII, R. 15 was supported by the affidavit of the next friend wherein it was stated that the 1st plaintiff was of unsound mind. The record discloses that affidavits of three other persons belonging to the same village were also filed along with the petition. The learned district Munsif directed the suit to be registered on 6-7-1974. The order also shows that the counsel was heard. Apparently, the trial Court was satisfied with the material before it that the 1st plaintiff was of unsound mind. Otherwise, it would not have directed the suit to be registered. In the absence of any express provision in the Rule as to the nature of the enquiry that should be conducted, it is possible to say that the procedure adopted by the trial Court is not in conformity with the Rule. All that the said rule contemplates is that the Court should be prima facie satisfied that the plaintiff is of unsound mind. If the Court is not satisfied with the averments in the petition, it may call upon the party to examine witnesses in support of the allegations. Even on the basis of affidavits, the Court can form an opinion and come to the conclusion that it is a fit case for permitting the next friend to institute the suit. One such an order is passed, it is open to the defendant to apply to the Court by way of an independent application for revocation of that order. In govindayya v. Ramamurthy, AIR 1941 Mad 524 a Division Bench of the Madras High Court consisting of Venkataramana Rao and Horwill, JJ. Summarised the scope of O. XXXII, R. 15 and observed that the Rule does not contemplate that there must be a preliminary enquiry and a finding that a person by reason of unsoundness of mind was incapable of protecting his interests; and that all that is needed is that there should be some prima facie proof to satisfy the Court that the person by reason of unsoundness of mind or mental infirmity is in capable of protecting his interests, and that it is open to the defendant to take out an independent application to have the said order revoked. Their lordships went to the extent of saying that when once the Court permits the next friend to sue on behalf of such a person, it is not open to raise an independent issue in the trial as to competency of the next friend to represent him in the suit. In this case the petition was allowed on the basis of an affidavit filed by the party. But it is submitted by Mr. Ranganadhan that the Madras High Court took a slightly different view in rangaswami Reddy v. Gopalaswami reddiar (1978) 2 mad LJ (High Court) 564. In that case it was held that the enquiry under O. 32, R. 15 is mandatory and where no such enquiry is conducted the suit itself is not maintainable. We do not think that this decision lays anything contrary to the rule enunciated in Govindayya v. Ramamurthy AIR 1941 Mad 524. As observed supra there is no gainsaying the fact that an enquiry is a must, under cl. 15 of O. 32 because a party is adjudged as an insane person which has some serious consequences. But what is the type of enquiry that is contemplated under O. 32, R. 15 is a matter to be considered. Rangaswami reddi v. Gopalaswami reddiar (1978) 2 Mad LJ (High Court) 564 is a case where no enquiry was conducted at all. Immediately after an application is filed for permission to appoint a next friend the defendatns took notice and opposed the petition. Without any enquiry whatsoever the petition was ordered. Later the defendants took out an independent application to revoke the permission already granted. There appears to be no enquiry on that application also. In these circumstances it was held that the suit was not maintainable, in fact the Division Bench of the Madras High Court quoted with approval the earlier decision of the Madras High Court in Govindayya v. Ramamurthy AIR 1941 Mad 524. We are therefore unable to accept the contention of Mr. Ranganadhan that the later Bench of the Madras High Court took a contrary view.
10. For all the above reasons we hold that the judgment of the lower appellate Court is clearly sustainable and no interference is called for. In the result the second appeal fails and is dismissed but in the circumstances without costs.
11. Mr. Ranganadhan made an oral application for leave to appeal to Supreme Court . we are unable to certify that this appeal raises a substantial question of law which need be decided by the Supreme Court hence we decline to grant leave.
12. Appeal dismissed.