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A.S. Mohammad Ibrahim Ummal Alias Shahul Hameed Ummal of Unsound Mind by Next Friend, M.T.S. Md. Thambi Vs. Shaik Mohammad Marakayar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ277
AppellantA.S. Mohammad Ibrahim Ummal Alias Shahul Hameed Ummal of Unsound Mind by Next Friend, M.T.S. Md. Th
RespondentShaik Mohammad Marakayar and anr.
Cases ReferredVaigunthathammal v. Valliamman I.L.R.
Excerpt:
.....therefore the question of the right of the next friend to institute the suit on behalf of mohammad ibrahim ummal as well as the question of the validity and binding nature of the suit transactions are intimately connected and depend upon a decision of one issue of fact, viz-,whether the said mohammad ibrahim ummal was of unspund mind or not as alleged in paragraph 4 of the plaint. dhairyam deposed in the evidence before the commissioner that it would have been better if he had been appointed as a commissioner to examine the girl. in spite of the opposition by the next friend the learned subordinate judge in an order which in my opinion was a well-considered and just order, held that it was desirable in the interests of justice that the lady should be examined by an expert appointed by..........the suit, o.s. no. 70 of 1946 was instituted on the 15th november, 1946 on behalf of one mohamad ibrahim ummal alias shahul hameed urnraal who was described as a person of unsound mind by her mother as next friend. ibrahim ummal succeeded to a portion of her father's estate after his death on the 17th november, 1929. she was married to the second defendant in the suit on 3rd march, 1938. the first defendant is her step-brother. during the minority of the said ibrahim ummal her mother managed her property and during the course of her management she became liable to pay to this said ibrahim ummal a large amount. a suit, o.s. no. 4 of 1940, on the file of the sub-court was instituted for an account of the moneys which came into the hands of the mother and for recovery of the amount after.....
Judgment:

Satyanarayana Rao, J.

1. This petition is to revise the orders passed, by the learned Subordinate Judge of Tuticorin in I.A. No. 241 of 1947, in O.S. No. 70 of 1946. The plaintiff is the petitioner before me.

2. The suit, O.S. No. 70 of 1946 was instituted on the 15th November, 1946 on behalf of one Mohamad Ibrahim Ummal alias Shahul Hameed Urnraal who was described as a person of unsound mind by her mother as next friend. Ibrahim Ummal succeeded to a portion of her father's estate after his death on the 17th November, 1929. She was married to the second defendant in the suit on 3rd March, 1938. The first defendant is her step-brother. During the minority of the said Ibrahim Ummal her mother managed her property and during the course of her management she became liable to pay to this said Ibrahim Ummal a large amount. A suit, O.S. No. 4 of 1940, on the file of the Sub-Court was instituted for an account of the moneys which came into the hands of the mother and for recovery of the amount after it was ascertained. That suit was ultimately compromised and under that compromise the present plaintiff became entitled to some of her mother's property. On the 12th January, 1943, Ibrahim Ummal executed a registered power of attorney in favour of her husband, the second defendant, and in pursuance of the power conferred upon him under the said power of attorney the second defendant alienated under a sale deed dated 7th February, 1943, some of the items of property which are the subject-matter of the present suit. The stepbrother, the first defendant, instituted suit O.S. No. 51 of 1945, against the present plaintiff represented by her husband as the guardian-ad-litem for recovery of a large amount of money on foot of a promissory note alleged to have been executed in his favour by the plaintiff. That suit also was ultimately compromised whereunder the first defendant became entitled to recover a sum of nearly Rs. 12,000 and odd from the plaintiff. In the present plaint it is alleged in paragraph 4 that:

the plaintiff' has been from birth a person of unsound mind in the sense that she was of very weak intellect and mental infirmity of such a character that she could not understand what she was doing and form a rational judgment as to the effect of her action on her own interests. The plaintiff has been in that condition all these years and continues to be so even now.

On these allegations the power of attorney, the sale deed in favour of the first defendant by the second defendant and the compromise decree in O.S. No. 51 of 1945 were attacked in the plaint as void on the ground that at all material times the plaintiff was of unsound mind and was not in a position to understand the effect of the transactions. Reliefs appropriate to the allegations in the plaint were claimed in paragraph 15 of the plaint. The defendants 1 and 2 denied the allegations in the plaint by separate written statements and also questioned the right of the next friend to institute the suit on the ground that the plaintiff Ibrahim Ummal was not of unsound mind. It would be seen that practically the same allegations are the foundation for the attack against the sale deed and the compromise decree and the right of the next friend to institute the present suit. Therefore the question of the right of the next friend to institute the suit on behalf of Mohammad Ibrahim Ummal as well as the question of the validity and binding nature of the suit transactions are intimately connected and depend upon a decision of one issue of fact, viz-, whether the said Mohammad Ibrahim Ummal was of unspund mind or not as alleged in paragraph 4 of the plaint.

3. The mother died on the 24th December, 1946. Thereafter one Mohammad Thambi filed I.A. No. 23 of 1947 to add him as the next friend of Ibrahim Ummal and to permit him to conduct proceedings in the suit. On that application the learned Subordinate Judge made an order appointing him as the next friend as a result of an endorsement made on behalf of the defendants by their pleader on the petition (I.A. No. 23 of 1947) to the following effect:

The defendants agree that without prejudice to the contentions of the defendants regarding the right of the present next friend to sue on behalf of the plaintiff and the question of the plaintiff's sanity or otherwise the petitioner may be appointed as next friend for the limited purpose of the enquiry as contemplated by Kasi Doss v. Kassim Sail : (1892)2MLJ215 .

4. The main issues in the suit are two:

(1) Is the plaintiff unsound in mind or incapable of protecting her interest ?

(2) Is the power of attorney executed by the plaintiff to the second defendant full and void owing to unsoundness of mind ?

5. The present next friend took the plaintiff Muhammad Ibrahim Ummal to Madras after the death of the mother, and got her examined from 17th January, 1947 to 30th January, 1947 by the Superintendent of the Government Mental Hospital, Madras, Dr. J. Dhairyam. In this examination he was assisted also by a lady doctor attached to the Mental Hospital, Madras, by the Head Nurse, by Dr. Miss Madhuram, Superintendent, Government Gosha Hospital, Madras and Dr. Rama Rao, Superintendent of an X'Ray Institute, Poonamallee High Road, Kilpauk. As a result of his examination the doctor gave a certificate to the effect that the said Ibrahim Ummal was in his opinion:

a congenital mental defective bordering between an imbecile and a feeble minded person. According to the tests and examinations she is more in the grade of an imbecile than in that of a feeble minded person.

6. After this certificate an application I.A. No. 171 of 1947 was filed on behalf of the plaintiff under Order 26, Rule 4, Civil Procedure Code, for examining the aforesaid five persons on commission. That application was opposed by defendants 1 and 2 but the Court ordered the examination of the witnesses on commission by its order dated 18th April, 1947. After the examination of the witnesses and the return of the commission warrant, the first defendant filed the present application, I.A. No. 241 of 1947, on 28th June, 1947, praying that Lt. Col. Dr. G. R. Parasuram should be appointed as commissioner to examine and report about the mental condition of Muhammad Ibrahim Ummal. An endorsement was made on that petition later on the 10th August, 1947, by the counsel for the first defendant that he did not press for the examination by Dr. Parasuram but that the Court should... appoint a competent person for that purpose. One of the grounds urged in support of the petition was that even Dr. Dhairyam deposed in the evidence before the Commissioner that it would have been better if he had been appointed as a Commissioner to examine the girl. Allegations were also made to the effect that the previous history of the girl was not completely and fully placed before the doctor to enable him to give a considered opinion and that as his examination from 17th January, 1947 to 30th January, 1947 was only in his private capacity and not as an in-patient of the Government Hospital it would be more satisfactory to have the lady examined by an independent mental expert and to have his evidence made available to the Court for a satisfactory decision on the crucial question in the case. In spite of the opposition by the next friend the learned Subordinate Judge in an order which in my opinion was a well-considered and just order, held that it was desirable in the interests of justice that the lady should be examined by an expert appointed by Court whose opinion would be impartial and unbiased and above board. He was of opinion that in a case of this description where the question raised was beset with considerable difficulty particularly as the Court had to decide the degree of the feebleness of mind of the plaintiff as she definitely was not an idiot or imbecile, it was essential to have the assistance of independent expert medical opinion. In the result he directed that an expert should be appointed as a Commissioner to examine the plaintiff and that for that purpose the plaintiff should be produced before such Commissioner by the next friend. The matter was adjourned by him for ascertaining and fixing a suitable mental expert for that purpose.

7. It is against this order that the present revision petition has been preferred to this Court.

8. The main question that was argued on behalf of the petitioner was that the Court had no jurisdiction to make the order. It was urged that though the Court had the power and jurisdiction to direct a party to be present in Court and to examine such a party and though the Court had also the power to examine an. expert witness in order to assist the Court to enable it to reach a satisfactory decision it was not open to the Court to direct that the plaintiff should submit herself for an examination to such an expert. The question for consideration is whether this contention is tenable.

9. Order 32, Rule 15, Civil Procedure Code applies the procedure contained in Rules 1 to 14 of that order 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. Under this rule it would be seen that the Court has the right and jurisdiction to enquire into the question, in a case where a person was not already adjudged to be of unsound mind, whether the person was really of unsound mind or not. That this jurisdiction does not rest on any statutory rule but is part of the inherent jurisdiction of the Court is clear from the decision of Lee v. Ryder (1822) 6 Mad. 294 : 56 E.R. 1103. In that case a motion was made by the plaintiff in the action to discharge an order obtained for a commission to appoint a guardian to an aged person who was afflicted with mental infirmity. The fact of infirmity was disputed but the Vice-Chancellor (Sir John Leach) made the following Order:

This Court doth order, that it be referred to Mr. Cross, one, &c;, to inquire whether the defendant, John Taylor is competent to answer the plaintiff's bill, without the appointment of a guardian for that purpose; and for the purpose of such inquiry it is ordered that the defendant John Taylor do attend the said Master from time to time as he shall direct. And the said Master is to be at liberty to call in such medical assistance as he may think necessary in making such inquiry; and the said Master is to state the result of the said inquiry, with his opinion thereon, to the Court, whereupon such further order shall be made as shall be just.

This decision was pronounced in 1822. In the rules of the Supreme Court there is a provision in Order 16, Rule 17, somewhat analogous to the provision in Order 32, Rule 15, Civil Procedure Code. The rule reads as follows:

Where lunatics and persons of unsound mind not so found by inquisition might respectively, immediately before the 1st November 1875, have sued as plaintiffs or would have been liable to be sued as defendants in any action or suit, they may respectively sue as plaintiffs in any action by their committee or next friend according to the practice of the Chancery Division.

That is to say, this rule also, as does Rule 15 of Order 32, draws a distinction between the two classes of persons, persons who were already adjudged of unsound mind and persons who were not so adjudged. It has to be noted that this rule (Order 16, Rule 17) does not provide an enquiry by Court as does Rule 15 of Order 32, but all the same in construing this rule the Courts in England held that the Court had ample power to enquire into and adjudicate upon the question of the unsoundness of mind of either the plaintiff or the defendant as the case may be. This was established by the decision in Howell v. Lewis (1891) 65 Law Times, 672, a judgment of Kekwich, J. In that case the jurisdiction of the Chancery Court in such matters which was expounded with clearness by James, L.J., in Beall v. Smith (1873) 9 Ch. Ap. 85 : 29 Law Times 625 was referred to as well as the decision in Lee v. Ryder (1822) 6 Mad. 294 : 56 E.R. 1103 the learned Judge observed at page 673 as follows:

Thereupon the Vice-Chancellor made the order, which is set out at the bottom of t hp age and which, in short, directed an enquiry whether the defendant was competent to defend in his own person or whether a guardian ought to be appointed. That seems to give me a guide to what I should do in this case.

If I may repeat the learned Judge's observations, these decisions give me also a guide to what should be done in a case of this description. 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 interest or not. For this purpose as pointed out by the Vice-Chancellor in Lee v. Ryder I.L.R. (1822) Mad. 294 : 56 E.R. 1103 it is open to seek medical assistance.

10. The place of medical evidence in such matters was considered by Neville, J., in Richmond v. Richmond (1914) 111 L.T. 273. The learned Judge points out:

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 contracts and by her own acts, that, in my opinion, is always a question for the Court to decide before which the matter comes. I say that, because, although I did not interrupt at the time, both in the affidavits and the parole evidence given here it is obvious that an idea obtained that that was a question for the doctors to decide, and that the question was whether the doctors thought that she was capable of managing her own affairs or whether they did not. In my opinion that is not so; it is for the Court to decide, although the Court must have the 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 Court therefore is perfectly justified in seeking the assistance of experts.

11. As regards the power of the Court to compel the attendance of the plaintiff it was not disputed before me on behalf of the petitioner that the Court possesses such a power and, indeed, it could not be disputed, in view of the clear language of Order 3 Rule 1, Civil Procedure, Code. The proviso to that rule says:

Provided that any such appearance shall, if the court so directs, be made by the party in person.

This proviso was construed by this Court both in Vaigunthathammal v. Valliamman I.L.R. (1917) Mad. 256 and the later case in Ayya Nadan v. Seeni Ammal (1920) 11 L.W. 289. In Ayya Nadan v. Seeni Ammal (1920) 11 L.W. 289 Krishnan, J., says at page 293:

Order 3, Rule 1 proviso is wide enough to enable the Court to direct any party to the suit to appear in person whether he be a minor or a major or of sound or unsound mind and it may be done at any stage of the suit; see Vaigunthathammal v. Valliamman I.L.R. (1917) Mad. 256.

The Court has also ample power under Order 16, Rule 14, Civil Procedure Code, to examine not only the parties and the witnesses summoned by them but also other persons whom the Court thinks are necessary. If so much is conceded or established the only point is, has the Court no jurisdiction to make that power effective It is said that an expert may be examined but the expert should not have the necessary data to form his opinion by examining the plaintiff. I think the contention so stated reduces the power of the Court to a mockery. If a jurisdiction exists in a Court, the Court has always the right and duty to exercise that power as effectively as possible. It is an inherent jurisdiction of the Court to make its power effective even though there is no specific provision in the Code or elsewhere to cover that particular power. It is to cover such cases, I think, Section 151, Civil Procedure Code, was enacted. I am therefore unable to accept the contention of the learned Advocate-General that the Court in such cases is helpless and is not entitled to direct that the plaintiff should be subjected to the examination of an expert whom the Court appoints. It is also strenuously urged by the learned Advocate-General on behalf of the petitioner that even if such an order is made it is open to the next friend to nullify the effect of that order by not obeying it as there is no provision for enforcing such an order. It is unnecessary for me at this stage to deal with this somewhat extraordinary contention as I think that when such a situation arises the Court would find adequate means of enforcing its order. If the next friend chooses to disobey the order it would be open to the Court to take such steps as it thinks proper in the circumstances.

12. The only other point that requires consideration is that the order of the learned Judge has the effect of putting the plaintiff to considerable inconvenience by taking her from place to place far away from her residence and without the assistance of her nearer relatives. No doubt it would be inconvenient if the plaintiff were to be taken away for a long time from her usual place of residence and from her surroundings depriving her of the help and assistance of her relatives. I have no doubt that when the expert is selected by the Court below, the Court will see that minimum inconvenience is caused to the plaintiff and it is only if it becomes impossible to have her examination at a place near by and necessitates her removal to the place of the expert that she should be directed to be taken to such a place. Of course the Court will see that she is given ample assistance and help and that minimum inconvenience is caused to her. I thought that it would be possible for the parties to come to an understanding on this matter but they were not able o agree. For the reasons given above I think this revision petition must fail and Should be dismissed with costs.


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