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Prosanna Ram Ghosh and ors. Vs. Anfar Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1934Cal833,153Ind.Cas.621
AppellantProsanna Ram Ghosh and ors.
RespondentAnfar Ali and ors.
Cases ReferredRalla Singh v. Bishna
Excerpt:
civil procedure code (act v of 1908), order xxxii, rule 15 - appointment of guardian--suit under section 77, registration act (xvi of 1903)--defend ant's unsoundness of mind alleged by plaintiff--court's duty--death of lunatic before starting of proceeding--no guardian ad litem appointed--legal representative brought on record after expiry of thirty days from order refusing registration--suit, if barred. - .....of order 32, rule 15, civil p.c., which provides for litigation by or against persons of unsound mind. it deals with two distinct classes of cases. firstly, it provides for persons who have been adjudged as of unsound mind in or in question under the lunacy act; this case is not of that character. secondly, it deals with cases of parsons who have not been so adjudged. it seems to have been assumed as a matter of course in the lower courts that if a plaintiff alleges that the defendant is of unsound mind the court must immediately accept this as well founded and appoint a guardian ad litem. this is not so. it is only when the court on inquiry has found that the defendant by reason of unsoundness of mind or mental infirmity is incapable of protecting his interest that it is.....
Judgment:

Henderson, J.

1. This appeal is by the defendants. It is directed against the decree passed in Appeal No. 844 of 1929, affirming the decree passed in suit No. 91 of the same year. The contention of the appellants is that the suit was barred by limitation. The appellants are the heirs of one Kularam Ghosh who was the original defendant. The suit was brought under the provisions of Section 77, Registration Act. Registration was refused on 3rd November 1928; the suit was instituted on 1st December 1928; Kularam Ghose died on 15th December 1928, and the present appellants were substituted on 18th January 1929. There is a finding that Kularam Ghose was a lunatic when the suit was filed.

2. The argument made on behalf of the appellants is that legally no suit was instituted against Kularam at all, because no guardian ad litem was appointed with the result that the suit was really instituted when the present appellants were brought on the record on 18th January 1929, by which time it would have been barred by limitation. The learned District Judge overruled this contention on the authority of the case reported in Rup Chand v. Dasodha, (1907) 30 All 55. That decision followed an earlier one reported in Khem Karan v. Har Dayal, (1881) 4 All 37, which has also been followed by the High Court of Lahore: vide the case reported in Ralla Singh v. Bishna, 1926 Lah 186; no authority to the contrary has been cited before me and I respectfully agree with those decisions. But I am further of opinion that, the point did not really arise for decision in view of the provisions of Order 32, Rule 15, Civil P.C., which provides for litigation by or against persons of unsound mind. It deals with two distinct classes of cases. Firstly, it provides for persons who have been adjudged as of unsound mind in or in question under the Lunacy Act; this case is not of that character. Secondly, it deals with cases of parsons who have not been so adjudged. It seems to have been assumed as a matter of course in the lower Courts that if a plaintiff alleges that the defendant is of unsound mind the Court must immediately accept this as well founded and appoint a guardian ad litem. This is not so. It is only when the Court on inquiry has found that the defendant by reason of unsoundness of mind or mental infirmity is incapable of protecting his interest that it is necessary to appoint a guardian ad litem. In the present case Kularam Ghose died even before any processes were issued and it was not possible for the Court to start an inquiry with regard to his mental condition. The result is that no question of appointing a guardian ad litem ever arose. The appeal is dismissed with costs.


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