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Maikoo Vs. Uma Shankar Bajpai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2389 of 1972
Judge
Reported inAIR1978All551
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rules 3 and 15
AppellantMaikoo
RespondentUma Shankar Bajpai
Appellant AdvocateK.M. Dayal, Adv.
Respondent AdvocateTriloki Nath and ;M.P. Mehrotra, Advs.
DispositionAppeal allowed
Excerpt:
civil - appointment of guardian - order 32 rule 3, 15 of code of civil procedure, 1908 - it is a duty of the court to appoint a proper guardian for the minor - procedure specified under order 32 should be followed. - - it has been pointed out that it was incumbent upon the trial court to have satisfied itself that smt. brij rani was a person fit to be appointed as the guardian for the appellant after making due enquiry in the matter, with particular reference to the availability or otherwise of a better person to act as guardian for the appellant......had committed default in payment of rent.2. it is not disputed that the defendant appellant was of unsound mind when the suit was filed. the plaintiff-respondent filed an application for appointment of a guardian for the appellant. in this connection, it was proposed that smt. brij rani, wife of the appellant, be appointed as guardian. the counsel for the proposed guardian had stated before the trial court that he had no objection to his client being appointed as guardian. accordingly, the trial court appointed smt. brij rani as guardian for the appellant.3. the appointment of a guardian for a person of unsound mind is regulated by the procedure contained in order xxxii of the civil p. c. by virtue of rule 15 of the said order, the provisions contained in rules 1 to 14, so far as.....
Judgment:

V.K. Mehrotra, J.

1. This second appeal is by a tenant against whom a decree for ejectment was passed by the trial court, which was affirmed by the lower appellate court. The conclusion which found favour with the courts below was to the effect that the appellant had committed default in payment of rent.

2. It is not disputed that the defendant appellant was of unsound mind when the suit was filed. The plaintiff-respondent filed an application for appointment of a guardian for the appellant. In this connection, it was proposed that Smt. Brij Rani, wife of the appellant, be appointed as guardian. The counsel for the proposed guardian had stated before the trial court that he had no objection to his client being appointed as guardian. Accordingly, the trial court appointed Smt. Brij Rani as guardian for the appellant.

3. The appointment of a guardian for a person of unsound mind is regulated by the procedure contained in Order XXXII of the Civil P. C. By virtue of Rule 15 of the said order, the provisions contained in Rules 1 to 14, so far as applicable, are also to be followed in the case of persons of unsound mind.

4. The principal submission of the learned counsel for the appellant before me has been that steps in accordance with law for the appointment of guardian for the appellant, who was admittedly of unsound mind, were not taken in the trial court so that the appellant could not properly defend himself in the suit. My attention in this connection has been specifically drawn to Rule 3 of Order XXXII of the Civil P.C. It has been pointed out that it was incumbent upon the trial court to have satisfied itself that Smt. Brij Rani was a person fit to be appointed as the guardian for the appellant after making due enquiry in the matter, with particular reference to the availability or otherwise of a better person to act as guardian for the appellant. This according to the learned counsel was not done.

5. A perusal of the judgment of the lower appellate court reveals that after coming to the conclustion that the view of the trial court that the appellant was a person of unsound mind and that consequently, a guardian had to be appointed for him was correct, the further question as to whether due enquiry has been conducted by the trial court before concluding that Smt. Brij Rani should be appointed as guardian for the appellant was not gone into by the learned Judge. The learned Judge seems to have taken the view that, inasmuch as, there was no allegation that the wife of the appellant was in collusion with the respondent, her appointment as guardian could not be held to be illegal or unjust.

6. As in the case of minors, it is the duty of the court to ensure that a proper person is appointed as a guardian for a person of unsound mind who may be a party to a cause before it. It is to ensure the appointment of a proper person as guardian for an insane person that the procedure prescribed under Order XXXII of the Civil P. C. for such appointment is to be strictly followed by the court. The lower appellate court ought, in my opinion, to have gone into the question as to whether the trial court adopted proper procedure to ensure the appointment of a fit person as guardian for the appellant or not. It has, admittedly not done so. The case, therefore, deserves to be remanded back to the lower appellate court for considering this question.

7. In the result, the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the case is remanded back to it for deciding it afresh in accordance with law and in the light of observations made by me above. In the circumstances of the case, the parties shall bear their own costs.


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