1. This question petition is directed against an order of the Subordinate Judge, Nellore, given on 30th August, 1966. It arises in the following circumstances: -
2. The respondent plaintiff Duvvuru Rami Reddi filed O. S. No. 73 of 1959 through has next friend, his daughter P. Rangamma. The next friend described the plaintiff as a person of unsound mind. The suit was for partition of the properties set out in the plaint schedules. The suit was instituted against his brother, the first defendant and others. It was inter alia alleged that the plaintiff and the first defendant are brothers and are sons of one Ranga Reddy. The plaintiff has no sons, but has five daughters. One of the five daughters is now the next friend of the plaintiff, defendants 2 to 5 being the other daughters. It was further alleged that the plaintiff was from the beginning a man of weak intellect and was not capable of managing the properties. The first defendant was looking after the same. The plaintiff's mental condition deteriorated further since 1948 and he became frequently insane. The first defendant wanted to partition the property between the plaintiff and himself but it was not accepted by the plaintiffs wife. The first defendant removed the plaintiff got a partition deed dated 26-10-1952 executed from the plaintiff and go it registered. Likewise he got another document executed on 31-12-1952 which was a settlement deed and got it registered on 2nd January, 1953. It was further alleged that the plaintiff was from the beginning a man of weak intellect and was constantly mentally deranged on the dates when these documents were executed and got registered. These documents, therefore, are void transactions.
3. The next friend while instituting the abovesaid suit filed I. A. No. 449 of 1959 on the same day when the suit was instituted under O. XXXII, R. 15, Civil P. C. for appointing her as the next friend alleging that the plaintiff is a person of unsound mind and as such incapable of protecting his interests. In support of this petition, the next friend her own affidavit and the affidavit of two other persons.
4. Respondents 2 to 5 remained ex parte, Respondents 6 to 9 filed their counter. In their counter they denied the allegation that the plaintiff was of unsound mind both at the time of the execution and registration of the abovesaid documents and at the time when the suit was instituted. They therefore disputed the correctness of his daughter representing him as the next friend.
5. The learned Subordinate Judge directed the plaintiff to be personally present in the Court. On 20-7-1960, the Subordinate Judge after hearing the parties directed that a full-fledged inquiry should be made into the allegation and counter-allegation in regard to the unsoundness of mind of plaintiff. He, therefore, directed the reopening of the matter and posted the case for inquiry on 10-8-1960. It would be seen from his order that earlier an ex parte order was passed allowing the next friend to represent plaintiff which was reopened in view of the contentions raised by the defendants.
6. On 10-12-1960, however, the learned Subordinate Judge after seeing the plaintiff and questioning him on several matters reached the conclusion that the plaintiff was hale and hearty and was answering questions put to him cogently. He, therefore, thought that there was no need to further inquire into the matter or call the Superintendent of the Mental Hospital who gave the certificate to him. He dismissed the petition.
7. The plaintiff carried the matter in revision to this Court. My learned brother, Venkatesam, J., allowed the revision petition and directed an inquiry into the question whether the plaintiff was of unsound mind at the time of the institution of the suit under O. XXXII, R. 15, Civil P. C., vide Rami Reddy v. Papi Reddy, : AIR1963AP160 .
8. After the matter was thus remanded, the Subordinate Judge's Court recorded the evidence adduced by the parties and upon that material has now found that the plaintiff is of unsound mind and is incapable of protecting his interests. He, therefore, thought that the next friend is indispensably necessary to protect his interest in the suit. Consequently he allowed the petition by his order dated 30-8-1966. It is against this order that the present revision is preferred.
9. The principal contention of the learned Advocate-General appearing for the petitioner is that the learned Subordinate Judge Order XXXII, Rule 15, Civil P. C., and has made observations which might affect the main question involved in the suit, that is to say, whether the partition deed and the settlement deed referred to above are void in view of the fact that the plaintiff was of unsound mind at the time when these two documents were executed and registered. He also questioned the procedure followed by the learned Subordinate Judge in disposing of the petition Order XXXII, Rule 15, Civil P. C.
10. It is no doubt true that in the plaint allegations have been made that the plaintiff suffered from mental infirmity since 1939 which was further aggravated from 1948 and that he was of unsound mind at the time when the partition deed as well as the settlement deed were executed and registered. It is on those grounds that those two documents are sought to be avoided.
11. For the purposes of the appointment of the next friend, the affidavit which was filed by the next friend also made similar allegations inasmuch as she wanted the plaint to the treated as part and parcel of the affidavit. She expressly stated that her father has been from a long time of unsound mind and was incapable of managing his own estate and that since some time prior to 1948 he was not in a position to understand and execute any document with knowledge of its effect on himself and his estate. She referred to two other affidavits of other filed by her stating that since a number of years the plaintiff was of unsound mind.
12. It is also true that the evidence adduced by the plaintiff in support of I. A. No. 449 of 1959 covered not only the fact that the plaintiff was of unsound mind on the date when the suit was instituted and was incapable of looking after his interest but covers also the period earlier to the suit, particularly the time when the abovesaid two documents were executed by the plaintiff.
13. It is because of this evidence that the learned Subordinate Judge in his order under revision at some places made certain observations which refer to the unsoundness of the mind of the plaintiff at a time earlier than the date when the suit was instituted. It is because of these facts that the learned Advocate-General raised the contention that if this judgment is allowed to stand, it is likely to affect the main issue referred to above and questioned the procedure followed by the learned Subordinate Judge.
14. In order to determine as to what is the correct procedure which should be followed in cases where it is alleged that the plaintiff is a minor or a person of unsound mind and desires to institute a suit through his next friend, it becomes necessary to refer to order XXXII, Rule 15, Civil P. C. The said rule places persons of unsound mind in the same position as minors and makes the provisions of Rules 1 to 14 applicable to them. It will thus be clear that persons who are of unsound mind or are suffering from mental infirmity and are thereby incapable of protecting their interests are placed on the same footing as minors for the purpose of legal proceedings by or against them. It must, however, be remembered that order XXXII deals only with procedure. It does not confer on minors or persons of unsound mind any right of any sort. Under Rule 1 of Order XXXII, every suit by a minor shall instituted in his name by a person who in such suit shall be called the next friend of the minor. Where the suit is instituted without the next friend, according to Rule 2, the defendant is entitled to apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. After hearing the objections, the Court is empowered to pass such order as it thinks fit under Rule 2. Order XXXII, Rule 1 states that along with such a suit on application by the next friend should be filed for the purpose of appointing him as the next friend, it is necessarily implied and that is why the next friend in this case filed in this case filed in I A No. 449 of 1959 along with the suit which she had instituted as next friend in the same of the plaintiff who was alleged to be of unsound mind and was incapable of protecting his interests. Order XXXII, Rule 1 and 2 are silent as to how the dispute, if it arises as to whether the plaintiff is a minor or not, is to be decided. Rule 15 of Order XXXII however is explicit when it says that Rules 1 to 14 shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the court in inquiry, by reasons of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. Rule 15 thus postulates inquiry, if the unsoundness of the mind of the plaintiff and the fact that he was incapable of protecting his interests are disputed by the defendants.
15. Before or after any such inquiry is made, the authorities lay down the procedure as to how the applications under Order XXXII, whether they fall under Rule 1 or Rule 15, should be disposed of. When an application is filed on behalf of the next friend alleging that the plaintiff is either a minor or is of unsound mind along with the suit which the next friend has instituted in the name of the minor or the insane, ordinarily notice should be given to the defendants to find out whether they desire to contest the application. In some cases, however, it is held that as ex parte order can be passed on such an application if the Court is satisfied that prima facie the plaintiff is a minor or insane and as such incapable of looking after his interests for appointment of a next friends. Such an order obviously would not be final. Since the order in such a case would be passed behind the back of the defendant, it is always open to him to question the correctness of the order. If he fails to question the correctness of such an order during the trial of the suit, he would not be permitted to raise the objection that the plaintiff was not minor or insane at the time when the suit was instituted or that he was incapable of protecting his interests, for the first time in appeal. If the defendant, however, chooses to dispute correctness of that order, he can ask the trial Court which had passed the ex parte order to make the necessary inquiry into the question whether the allegations made by the next friend are correct. The Court is bound to reopen the question and make a proper inquiry in that behalf. In such a case, after inquiry, if it found that the plaintiff was minor or insane and was incapable of looking after his interests on the date when the suit was instituted, the Court can permit the guardian or the next friend to represent him, proper orders in that behalf should be passed. When the defendant raises an objection and questions the allegations made in the petition that the plaintiff is minor or insane and is therefore incapable of looking after his interests and if no ex parte order is passed or even if it is passed and is questioned by the defendant, this question has to be tried as a preliminary issue before any other matter is considered or disposed of in the suit, and for the purpose of such an inquiry, the Court will have to make tentative order either with the consent of the defendant or on prima facie material before it allowing the guardian or the next friend to continue to represent the plaintiff until the inquiry is over. Any decision given on such an inquiry would be binding upon the parties in so far as the trial Court is concerned. But when ultimately the matter goes in appeal as consequence of the trial of the suit, in my view, it is open to appellate Court to see whether the order appointing the next friend or the guardian was validly made and in that connection the appellate Court can certainly go into the question whether the plaintiff on the date when the suit was instituted was minor or insane and was consequently incapable of protecting his interests.
16. In any case, the inquiry and the determination of such a question would be only under Order XXXII, R. 1 or O. XXXII Rule 15, Civil P. C. The purpose and the scope of the inquiry obviously is very much limited, the purpose being to give proper representation to the plaintiff, who is minor or insane. The law as a general principle treats all acts of an infant which are for his benefit on the same footing as those of an adult but will not permit him to do anything prejudicial to his own interests. This principle regulates not only the infant's capacity to acquire and dispose of property but also is acknowledged in reference to legal proceedings instituted by or against him. The scope of the inquiry therefore has to be only limited for the procedural purposes, that is to say, to give proper representation to the plaintiff if he is found to be insane or minor on the date when the suit was instituted. The inquiry is not therefore expected to travel beyond this limited field. It must be remembered that any order passed under Order XXXII, Rule 15 does not finally decide as to whether the plaintiff was insane at the time when the transactions attacked in the suit were entered into by him. That is a matter which has to be expressly made a subject of issue and will have to be gone into like any other issue in a regular trial and will have to be ultimately decided in the suit itself. When the question which arises in the petition under Order XXXII, Rule 15 and which arises in the main suit itself is the same, greater care is required to be taken to see that any order passed under Order XXXII, Rule 15 does not transgress is legitimate limits and thus allowed to affect the main question involved in the suit.
17. That this is the correct procedure which should be followed is indicated by the following decisions; In Kasi Doss v. Kassim Sait, (1893) ILR 16 Mad 344 a Bench of the Madras High Court observed:
'The general rule is that though a minor may appear by any attorney or pleader, he can only plead or conduct the defence by his guardian. Section 443 is taken from Rule 11 of the Calcutta High Court dated 10th June, 1874, the words on being satisfied of the fact of his minority being added.
The apparent intention is not to treat one who alleges that he is a minor as not being a minor and thereby to ignore the general principle that a minor cannot act for himself, but to indicate that a finding that he is really a minor is necessary to the appointment of a guardian for the suit and to act on his behalf in the conduct of the case. No sufficient reason appears from the letter of reference for trying the question of minority, which is as material as any other question in the suit, by affidavits instead of in the regular way. We are of opinion that on minority being alleged and denied, a guardian should be appointed for the purposes of the inquiry contemplated by Section 443; that a preliminary issue should be recorded raising the question whether or not the defendant is a minor that it should be tried and adjudicated upon the same way in which any other material issue is tried and decided that if the defendant is found to be a minor, a guardian for the suit should be appointed for him and that if he is found not to be a minor, the guardian appointed for the inquiry indicated by Section 443 should case to act, the defendant conducting his own case.'
18. To the same effect is Ramgobind v. Sital Singh, AIR 1926 Pat 489, where Adami, J., held:
'If there is any doubt as to the minority of the defendant that question ought to be made an issue in the case and the Court ought to decide whether it is a case in which a guardian ought to be appointed. It is not sufficient for the Court by just looking at the defendant to come to a conclusion that he is not a minor.'
19. Kemp, J. of the Bombay High Court was also of the same opinion in Narsey Tokersy and Co. v. Sachindranath, AIR 1929 Bom 431. The learned Judge observed:
'But what I mark of importance, so far as this notice of motion is concerned, is that although the plaintiffs had notice that defendant 1, it was claimed rightly or wrongly, was minor they have not asked for the trial of any issue on that point which would be the correct procedure to adopt before they took this notice or motion and certainly before they brought it on.'
20. To the same effect is Bhubaneswar v. Rabi Charan, AIR 1948 Cal 149. In re, K. Narasimha Bhattachariar, AIR 1939 Mad 657, learned Judged held:
'Where the Court has permitted the plaintiff to sue by his next friend, till that order is set aside, it is not competent to raise an issue as to the question whether the plaintiff is incapable of protecting his interests then suing or being sued. Once plaintiff is permitted to sue by the next friend the authority of the next friend cannot be questioned by an issue raised in the suit. Unless by a substantive application the authority of the next friend is revoked, it would not be competent to raise an issue in answer to the claim.'
21. In Govindayya v. Ramamurthi, AIR 1941 Mad 524, Venkataramana Rao and Horwill, JJ., repelling the contention that before a next friend the contention that before a next friend can represent a person of unsound mind, it must be found on inquiry by the Court that the person by reason of his unsoundness of mind or mental infirmity is incapable of protecting his interests, that is to say, before the plaint was filed, observed:
'What is contemplated is that the plaint must be filed by a next friend and the Court, before admitting the plaint, should satisfy itself on enquiry that the person on whose behalf the plaint is presented was by reason of unsoundness of mind incapable of protecting his interests and should be represented by a next friend. Ordinarily the next friend ought to file an application supported by an affidavit along with the plaint and the Judge should pass an order thereon.' Their Lordships went on to observe : 'All that is needed is that there should be some prima facie proof such as to satisfy the Court that the person was by reason of unsoundness of mind or mental infirmity incapable of protecting his interests, because an order permitting the next friend to represent such a person is not final. It is always open to the defendant to take out an independent application to have the said order revoked when the Court can go fully into the matter. But when once the Court permits the next friend to sue on behalf of such a person, it is not open to the court to raise an independent issue in the trial as to the competency of the next friend to represent him in the suit.'
The last case, which must be considered in this connection, is Mohammad Ibrahim v. Shaik Mohammad, AIR 1949 Mad 292. Satyanarayana Rao, J., while discussing the contentions raised in that case, observed:
'In the present case, the question arises not only under Order 32, Rule 15, but also as a substantial issue in the suit as the basis of attack levelled against the impugned transactions is the same. The Court has therefore ample jurisdiction to enquire into the question whether the plaintiff was really by reason of unsoundness of mind or mental infirmity incapable of protecting her interests or not.'
The learned Judge however was not concerned as to what procedure in such cases should be followed. The question really was whether the person alleged to be unsound should be medically examined and whether for that purpose the person can be compelled to appear before the expert. Not much assistance therefore can be drawn from this decision.
22. In view of what is stated above, it would be manifestly clear that the learned Subordinate Judge who had passed on ex parte order on the basis of affidavits filed by the next friend revoked it on the objections raised by the defendants. After the direction given by the High Court, an inquiry was made into the allegations under Order XXXII, Rule 15 and he has now passed the order under revision. In so far as the following of the procedure is concerned, I am satisfied that there is no material irregularity which can be said to vitiate the proceedings of the Court below. It would not therefore be open to the defendants to raise the question whether the plaintiff was unsound on the date when the suit was instituted as an independent issue during the course of the trial. It is not however to say that they would be precluded from questioning the correctness of this order in the appeal which may be preferred against the judgment and decree of the trial Court. The order under O. XXXII, R. 15, Civil P. C., is not made appealable under O. XXXII appropriate cases revise the order under Section 115, Civil P. C. That does not however preclude the defendants from raising the objection at the time of the appeal, if it becomes necessary, that the order appointing the next friend of the plaintiff was passed either because the plaintiff was not insane or of weak mind within the meaning of Rule 15 of Order XXXII on the day when the suit was instituted or was not capable of looking after his own interests. The appellate Court will have to go into that question. I am not impressed by the argument that such a question cannot be gone into in the appeal because the determination of any question under Rule 15 of Order XXXII does not affect the suit. It is true that the order appointing the next friend does not deal with the subject-matter of the suit or the issues involved in it. But the very fact whether the suit is maintainable or not as is filed by the next friend can certainly be gone into in appeal as it affects the very basis of the suit. This view finds sufficient support from a decision which I have noticed above, AIR 1941 Mad 524. The Bench of the Madras High Court went into the question in appeal as to whether the finding in regard to the unsoundness of mind was correct. It may be that if the defendants had not raised the objection in regard to the unsoundness of the mind of the plaintiff on the day when the suit was instituted, they would have been precluded for the first time to raise it as an appeal as is held by Shah, J., in Bai Dahi v. Gnanshyam, AIR 1956 Bom 102. It however necessarily follows from the said decision also that if the defendants raise the objection such an objection can be gone into in the regular appeal.
23. My learned brother, Chandrasekhara Sastry, J., in CRP No. 2035 of 1963, D/- 5-12-1966 (AP) in somewhat similar circumstances observed:
'I make it clear that it will be open to the contesting defendants if and when the case goes up in appeal before a Court of Appeal to take the objection that the plaint was not properly presented on the ground that the plaintiff was a minor when the plaint was presented and that it could not be validated by any subsequent proceeding.'
24. The next question which arises for consideration is whether I should interfere under Section 115, Civil P. C. I do not think there is any valid reason to interfere under Section 115, Civil P. C., in this case.
25. I must however observe that the learned Subordinate Judge was not correct in generalising the issue and widening the scope of either the inquiry or the evidence or even while determining the question. The next friend may have referred to the plaint or might have referred to the allegation that the plaintiff was of unsound mind at the time when the partition and settlement deeds were executed. Likewise she may have adduced evidence covering both these purpose. But the learned Subordinate Judge ought to have realised, that it was not necessary to make any observation or permit evidence to go on record in regard to earlier period which is likely to affect the consideration of the main issue involved in the suit. The learned Subordinate Judge's determination therefore will be confined only to the determination of the question under Order XXXII, Rule 15, Civil P. C., that is to say, that the plaintiff was of unsound mind or was suffering from mental infirmity and was incapable of protecting his interests when suing. The order has absolutely no effect on anything beyond that. It does not, in any case affect the consideration of the main issue relating to the validity of partition deed and the settlement deed which necessarily arises in the suit. I do not think there is any reasonable basis for the apprehension that the evidence recorded for the purpose of disposing of the application under Order XXXII, Rule 15 would be used in the regular suit. In order to determine the main issue arising in the suit, the parties will have to adduce independent evidence and no reliance obviously will be placed upon the evidence which has been recorded for a limited purpose. Thus it will be clear that the present determinations will not affect the consideration of the main issue nor the evidence adduced in support of IA 449 of 1959 will be considered in trying the main issue arising in the suit nor any observations made by the learned Subordinate Judge or even by me which are likely to affect or show the tendency of affecting the consideration of the main issue will influence the Subordinate Judge while trying the main issue. It is open to the petitioners herein to question the legality or the correctness of the order under revision in regular appeal if it is found necessary. I do not however find any valid reason to interfere in the order of the Court below in this revision.
26. Subject to the above said observations, the revision petition is dismissed. In view of the circumstances of the case, I make no order as to costs.
27. Revision dismissed.