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Balakrishnan Vs. N.B. Balachandran and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1956)1MLJ459
AppellantBalakrishnan
RespondentN.B. Balachandran and anr.
Cases Referred(see Shaik Muhammad Ibrahim v. Shaik Muhammad
Excerpt:
.....in the joint family properties, though the question would hardly arise in a promissory note suit. raghavan, for the petitioner, contended that the learned district munsif had failed to hold an enquiry as he was bound to do, into the alleged lunacy of balakrishnan, by questioning the alleged lunatic, recording his answers, calling for a medical certificate from a doctor after observation, etc. even granting that balakrishnan, when appearing in the lower appellate court, was perfectly sane, he could not know the state of his mind at the date of the decree if he was a lunatic, as alleged, any more than any man can remember the date of his birth. lunacy involves a complete clouding of the mental faculties, like amnesia. so, the only safe course for courts in this country to..........in the joint family properties, though the question would hardly arise in a promissory note suit. the learned district munsif delivered a judgment in which he specifically stated that the guardian, that is, viswanathan, the brother, had no objection to a decree being passed if it would not bind his half share. acting on the evidence of p.w. 1 regarding the consideration and the endorsement, he decreed the suit with costs on 29th september, 1948. balachandran transferred the decree to one kalliani (respondent 2 here), who sought to execute it.2. balakrishnan, claiming to be sane right through, filed i.a. no. 339 of 1952 in o.s. no. 234 of 1948, for setting aside the decree under order 9, rule 13, civil procedure code, stating that he knew about the decree only when notice went.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1. This is a very peculiar case. The petitioner, Balakrishnan, when admittedly sane, executed a promissory note for Rs. 1,000 in favour of one Andi on 22nd January, 1946. That promissory note was said to have been assigned by Andi for proper consideration to one Balachandran, the first respondent. This Balachandran brought a suit, O.S. No. 234 of 1948, on the file of the District Munsif's Court, Palghat, on that promissory note. When the summons went to Balakrishnan, who was then undergoing a term of imprisonment in goal, it was returned with the endorsement that Balakrishnan was insane. On that endorsement, and without any further enquiry under Order 32, Rule 15, Civil Procedure Code and acting on the endorsement as if it were conclusive in the matter, the learned District Munsif held that the man was insane, and appointed his brother, one Viswanathan, as manager and guardian ad litem of the alleged lunatic. This Viswanathan was a coparcener with Balakrishnan and was entitled to a half share in the joint properties. He appears to have been more anxious to save his half share from the result of any decree that might be passed in the suit. So, his written statement mainly consisted of a denial of the liability of his half share in the properties for the decree amount. P.W. 1 was examined on behalf of the plaintiff, and he stated that the promissory note was supported by consideration, and that it had been duly endorsed in favour of the plaintiff. He had attested the original promissory note in favour of Andi. He added that the plaintiff would be satisfied with a decree against the share of the defendant, Balakrishnan, in the joint family properties, though the question would hardly arise in a promissory note suit. The learned District Munsif delivered a judgment in which he specifically stated that the guardian, that is, Viswanathan, the brother, had no objection to a decree being passed if it would not bind his half share. Acting on the evidence of P.W. 1 regarding the consideration and the endorsement, he decreed the suit with costs on 29th September, 1948. Balachandran transferred the decree to one Kalliani (Respondent 2 here), who sought to execute it.

2. Balakrishnan, claiming to be sane right through, filed I.A. No. 339 of 1952 in O.S. No. 234 of 1948, for setting aside the decree under Order 9, Rule 13, Civil Procedure Code, stating that he knew about the decree only when notice went to him on 7th January, 1952, in E.P. No. 10 of 1952. He urged that he was wrongly declared insane, and that no notice was Served on him and he could not be present on the date of the ex parte decree and he was wrongly made to be represented by his brother, Viswanathan, who had not acted in his interest, but only in his own interest. The learned District Munsif held that it was not an ex parte decree, as Balakrishnan had been represented by his manager and guardian, Viswanathan and who had appeared through two advocates, Messrs. Madhavan Nair and Sankakaran Nair. So, he dismissed the I.A. with costs. Balakrishnan then filed C.M.A. No. 40 of 1952 in the Court of the Subordinate Judge, Palghat. The learned Subordinate Judge held that the appointment of Viswanathan as guardian was not proved to be improper, and that Balakrishnan was insane at that time. So, he dismissed the C.M.A. with costs. Hence, this Civil Revision Petition.

3. I have perused the entire records and heard the learned Counsel on both sides. Mr. T.C. Raghavan, for the petitioner, contended that the learned District Munsif had failed to hold an enquiry as he was bound to do, into the alleged lunacy of Balakrishnan, by questioning the alleged lunatic, recording his answers, calling for a medical certificate from a doctor after observation, etc., as required by Order 32, Rule 15, Civil Procedure Code, and that, in the circumstances, it must be only considered to be an ex parte decree, as a man had been, without a proper enquiry held by the Court to be a lunatic and prevented from being personally served and from conducting his own defence, and that would be a sufficient reason for his absence on the date of the ex parte decree, and that it was immaterial that Viswananathan, whether he acted properly or improperly, was appointed the alleged lunatic's guardian. Mr. Raghavan also contended that a mere perusal of Viswanathan's written statement on behalf of the alleged lunatic would how that he was more anxious to protect his own half share of the property from danger than to contest the promissory note suit on behalf of the petitioner. Mr. Balakrishna Eradi, for the decree-holder, contends that both the lower Courts have held that Balakrishnan was a lunatic, and, so, the appointment of a guardian for him was proper, and that Viswanathan was not held to have acted improperly. I am of opinion that Viswanathan did not act improperly, though he was illegally appointed as guardian and cannot be said to have put up any really effective or efficient defence. That might be because Balakrishnan, having become a lunatic could not be questioned about the truth or otherwise of the promissory note or endorsement, as urged by Mr. Eradi. But the main thing to remember is that, in this secular Republic of India, no citizen can be held to be a lunatic without going through the procedure prescribed by the laws and rules on the subject. Order 32, Rule 15, Civil Procedure Code, is intended to ensure that no man is adjudged a lunatic without proper enquiry. The Court should hold a judicial enquiry (see Ramanathan v. Somasundaram : (1941)1MLJ234 It may seek the assistance of medical experts (see Shaik Muhammad Ibrahim v. Shaik Muhammad : (1948)2MLJ277 . Indeed a man can never be declared with certainty to be conclusively a lunatic, or to be of unsound mind, as contended by Mr. Raghavan but still reasonable certainty is possible by such tests. Experience has shown the danger of holding a man to be a lunatic on a mere enquiry by a lay Judge in Court unsupported by the opinions of experts trained in such matters. But, even that elementary enquiry, contemplated by Order 32, Rule 15, Civil Procedure Code, namely, by a Court questioning the alleged lunatic, to find out whether he is a lunatic or not, and getting a certificate from a competent doctor who has kept him under observation for a few days, was not observed in this case. I cannot understand how a lunatic or his guardian or the latter's advocate can admit that he is a lunatic or deny that he is a lunatic. A lunatic, by the very fact of his deranged mind, will be unable to know whether he is sound or unsound in mind. In fact, many lunatics consider that it is other persons who are lunatics, and not themselves. So, a lunatic's view about his own lunacy or otherwise is worth nothing. So too, the lay opinions of his interested brother or his advocates. The observation of the learned Subordinate Judge in appeal that the petitioner himself did not deny that he was a lunatic at that time is worth nothing. Even granting that Balakrishnan, when appearing in the lower appellate Court, was perfectly sane, he could not know the state of his mind at the date of the decree if he was a lunatic, as alleged, any more than any man can remember the date of his birth. Lunacy involves a complete clouding of the mental faculties, like amnesia. Even when the memory has been recovered or sanity restored, the events of the dark period remain dark and are never cleared up. So, the only safe course for Courts in this country to follow regarding lunatics is to follow rigorously the procedure prescribed in Order 32, Rule 15, Civil Procedure Code, before declaring any citizen to be a lunatic. That procedure involves a judicial enquiry 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; t0 send the alleged lunatic to a doctor for report about his mental condition after keeping him under observation for some days. That observation need not necessarily mean detaining the man, even in hospital. It is enough if the doctor applies the tests at periodical visits to him spread over two or three days, and then gives his conclusions. When this elementary precaution of a judicial enquiry 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. The best guardian will be no substitute for oneself, just as it has been well said that the best foreign Government can never be a substitute for self-government. So, it is no use urging that Viswanathan defended Balakrishnan's interests effectively, and the facts do not show that Viswanathan did so, though, in the circumstances, it might have been difficult for Viswanathan to do better. Hence, while Viswanathan's bona fides cannot be questioned, the fact remains that he put up mighty little defence regarding the promissory note suit brought against Balakrishnan. When Balakrishnan was adjudged a lunatic irregularly and improperly, notice was not served personally on him and a guardian appointed for him, and the guardian alone allowed to appear in Court and defend the suit by filing written statement, adducing evidence, etc., it follows that Balakrishnan had an excellent reason for his non-appearance in Court on the date of the ex parte decree as he was kept out of Court by an order of Court based on unproved unsoundness of mind. So, really speaking, the decree passed against Balakrishnan was an ex parte decree and has to be set aside as an ex parte decree. Mr. Raghavan does not want any other concession except a right to light out the suit. As Balakrishnan was sane before and after, and claims to have been sane throughout, and did not get himself examined by a doctor and produce a certificate of soundness of mind during all this long interval of years, I am of opinion that this is a fit case for passing an order on terms calculated to punish him for his laches. I direct that if the petitioner pays into lower Court within three weeks from the date of the receipt of the records there, a consolidated sum of Rs. 50 for payment to the Respondents as costs for the waste of time, money and energy caused to them by his laches, the orders of both the Courts below will be vacated, and O.S. No. 234 of 1948 restored to file, and disposed of speedily by the District Munsif after allowing the petitioner to file his written statement and adduce his evidence, and the decree-holder to adduce his counter-evidence, and that failing such deposit by such date, this Civil Revision Petition shall stand dismissed without costs. The sum of Rs. 50 referred to above if deposited, will not be costs in the suit or in any other proceeding.


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