Allahabad High Court
Rishipal Singh And Others vs Balram Singh And Another on 9 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1147
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR In Chamber Case :- SECOND APPEAL No. - 1039 of 2007 Appellant :- Rishipal Singh And Others Respondent :- Balram Singh And Another Counsel for Appellant :- K.M. Garg Counsel for Respondent :- Anil Sharma,Arvind Srivastava,Shodan Singh Hon'ble Jayant Banerji,J.
1. This second appeal has been filed by the defendant-appellants against the judgement and decree dated 11.7.2007 and 24.7.2007 respectively passed by the Additional District Judge, Court No. 2, Bijnor dismissing the Civil Appeal No. 96 of 2006 filed by the appellants whereby the judgement and decree dated 30.11.2006 passed by the Additional Civil Judge (Junior Division), Court No. 3, Bijnor in Original Suit No. 72 of 1995, was affirmed.
2. The following substantial question of law was framed by the Court on 11.10.2007:
"(i) Whether the finding given in the Consolidation Suit regarding Balram Singh will operate as res judicata in the subsequent suit as the said finding is a nullity in view of the decision of this Court in Prabhat Sharma and another Vs. Hari Shankar Srivastava and others 1988 ALJ 436 which has relied upon the decision of the Supreme Court in Ram Chandra Arya Vs. Man Singh AIR 1968 SC 954?"
Two other substantial questions of law were framed by the Court on 24.7.2019:
"ii) Whether the courts below were justified in decreeing the suit without appointing the plaintiff-respondent no.2 as the guardian of the plaintiff-respondent no.1 in view of the provisions of Sections 4 and 6 of the Hindu Minority and Guardianship Act, 1956 and the provisions of Order 32 Rule 3 read with Rule 15 of the CPC?
iii) Whether the failure of the trial court to conduct an enquiry as envisaged in Order 32 Rule 15 of the CPC in respect of the plaintiff-respondent no.1 had rendered the suit not maintainable on behalf of the plaintiff-respondent no.1?"
3. The suit was purportedly filed by the plaintiff-respondent No.1 through the plaintiff-respondent no.2, seeking relief of cancellation of a sale deed dated 23.9.1994 executed by the plaintiff no. 1, Balram Singh, in favour of the defendant-respondents in respect of a plot of land. Balram Singh, the plaintiff no. 1 was described in the plaint as of unsound mind. The plaintiff-respondent no. 2, Raghunath Singh, who verified and signed the plaint on behalf of the plaintiff-respondent no.1, stated in the plaint that the plaintiff no. 1 is of unsound mind (mad) since the beginning and he is totally unable to think for himself. It is stated that during consolidation proceedings under the U.P. Consolidation of Holdings Act, 19531, it was held by the Consolidation Officer that the plaintiff no. 1 was an idiot ('Jad Buddhi') and that his guardian was required to be appointed. The mother of the plaintiff no. 1 was appointed as his guardian, and the plaintiff-respondent no. 2 and late Ram Nath (father of the defendant-appellants) were parties and as such the order of the Consolidation Officer operates as res judicata. It is stated that after the death of the mother of the plaintiff no. 1, Ram Nath became the guardian of the plaintiff no. 1 and after his death, the plaintiff-respondent no. 2 came to be the guardian of the plaintiff no. 1. The defendants are brothers and they are the sons of late Ram Nath and had full knowledge of the unsound mind of the plaintiff no. 1, Balram Singh. The defendants illegally got executed an agreement to sell and got the plaintiff no. 1 to put his thumb impression on that document by exercising undue influence. Fraud was alleged. That document was registered and no money was paid to the plaintiff no. 1. Thereafter the defendants got executed a forged and fabricated sale deed dated 23.8.1994 and by exercising undue influence on the plaintiff no. 1 obtained his signature on that document. It is alleged that that forged and fabricated sale deed was a void document. No money was paid to the plaintiff no. 1, the sale deed was not executed by the plaintiff no. 1 in a fit state of mind and that no permission was taken from the District Judge, Bijnor for execution of the agreement to sell and the sale deed. That on coming to know of a rumour about the fabricated and forged sale deed, the plaintiff-respondent no. 2 obtained a copy of the same from the office of the Sub-Registrar, Bijnor and so in January 1995 for the first time he came to know of that sale deed. Since the plaintiff-respondent no. 2 is the real brother of the plaintiff-respondent no. 1, he is his guardian and therefore he has a right to file the suit on behalf of the plaintiff-respondent no. 1.
4. In the written statement filed on behalf of the defendant-appellants, the contents of the plaint were not admitted. It was denied that the plaintiff-respondent no. 1, Balram Singh, was a person of unsound mind since the beginning. It was denied that the Consolidation Officer had declared the plaintiff-respondent no. 1, Balram Singh, as a person of unsound mind and had appointed a guardian for him. It was also denied that the father of the defendant-appellants - Ram Nath was a party to the proceedings before the Consolidation Officer. It was stated that the plaintiff-respondent no. 1, Balram Singh, was a person of healthy mind and capable of looking after himself and the agreement to sell and sale deed were executed by the plaintiff-respondent no. 1, Balram Singh, after obtaining appropriate sale price for the property and after fully reading and understanding the contents of the same. It was stated that since the plaintiff-respondent no. 1 was a normal and capable person, therefore, no permission for executing the agreement to sell or sale deed was required from the District Judge.
5. On 06.08.1997 a statement of the plaintiff-respondent no. 1, Balram Singh, was recorded by the trial court (Paper No. 43A) purportedly under Order 10 Rule 1 of the CPC.
6. During pendency of the suit, the plaintiff no. 1 died on 25.7.1998 whereafter an amendment application (Paper No. 69 A) was filed by the plaintiff-respondent no. 2. After considering the objections, the trial court allowed the application by an order dated 18.9.1999. By means of the amendment, the plaintiff-respondent no. 2 stated, inter alia, that after the death of plaintiff no. 1, he is the sole heir of the plaintiff no. 1. It was further stated that since plaintiff no. 1 was kept by the defendant-appellants in their custody therefore if any forged or fabricated will deed was got executed by the defendant-appellants in their favour from the plaintiff no. 1 then no rights thereunder would accrue to the defendant-appellants.
However, no amendment was sought in the relief clause of the plaint.
7. In the additional written statement filed by the defendant-appellant it was stated that the consolidation court has no authority to declare a person as a lunatic but the District Judge was entitled to appoint a person as his guardian. That Balram Singh (plaintiff-respondent no. 1) had instituted a Suit No. 553 of 1994 in the Court of Munsif, Bijnor (Balram Singh Vs. Jagdish and others) in which he had testified and which was decreed on 30.01.1995. That by means of a registered will dated 05.06.1998, the plaintiff-respondent no.1 had bequeathed his movable and immovable properties in favour of the defendant-appellant no.1, Rishi Pal Singh. That the deceased Balram Singh used to love the defendant-appellant no. 1 a lot. The defendant-appellant no. 1 served and looked after the plaintiff-respondent no. 1 till the end and also performed his funeral and last rites.
8. The trial court, initially, framed 5 issues as follows:
"1- D;k cSukek fnukad 23-9-94 cgd izfroknhx.k ,d tkyh QthZ o 'kwU; nLrkost gS\ 2- D;k oknh ua-&1 tMcqf) o cqf)ghu O;fDr gS vkSj viuk vPNk cqjk le>us esa vleFkZ gS\ 3- D;k oknhx.k us okn dk ewY;kadu de fd;k gS vkSj vnk fd;k x;k U;k;'kqYd vi;kZIr gS\ 4- D;k oknhx.k dk okn /kkjk 331 ;w0ih0tSM0,0,y0vkj0 ,DV ds izkfo/kkuksa ls ckf/kr gS\ 5- D;k oknhx.k fdlh vuqrks"k dks ;fn gkW rks izHkko\ Subsequently, after amendment of the plaint and filing of an additional written statement, two other issues were framed on 17.04.2001:-
6- D;k oknh ua-&2 j?kqukFk oknh ua-&1 cyjke e`rd dk okfjl gS\ 7- D;k e`rd cyjke flag us fnukad 5-6-98 dks viuh py o vpy lEifRr dh olh;r izfroknh _f"kiky flag ds gd esa fu"ikfnr dh tSlk fd izfroknx.k dk dFku gS\**
1. Whether the sale deed dated 23.9.94 in favour of the defendants is a forged, fraudulent and void document?
2. Whether the plaintiff no. 1 is an idiot and a person of unsound mind and is incapable to understand his interest?
3. Whether the plaintiffs have undervalued the suit and the court fees deposited is insufficient?
4. Whether the suit of the plaintiffs is barred by the provisions of Section 331 of the U.P.Z.A.L.R. Act?
5. Whether the plaintiffs are entitled to any relief, if yes, its effect?
6. Whether plaintiff no.2 Raghunath is the heir of the deceased plaintiff no. 1, Balram?
7. Whether the deceased Balram Singh had executed a will on 5.6.98 of his movable and immovable properties in favour of the defendant Rishipal Singh, as is stated by the defendants?
(English translation of the issues by court)
9. The trial court held that the sale deed dated 23.9.1994 is a void document as the plaintiff-respondent no. 1, Balram Singh was a mad person and such a person had no right to execute the sale deed or to enter into any contract. It held that though the plaintiff-respondent no.2 had repeatedly moved applications for getting the medical examination of the plaintiff-respondent no.1 done but it was objected to by the defendant-respondents which proves that they did not want his medical examination to be done, which all reveals that Balram Singh was not mentally fit. It observed that in this regard the Consolidation Officer has also said in his order that Balram Singh (plaintiff-respondent no.1) was a mad man. The trial court referred to the provisions of Section 11 and its Explanation VIII of the CPC in this regard. It held that the plaintiff-respondent no.1 was a mad person since birth and a mad person has no right to to execute a sale deed or any other contract. It referred to the revenue records (khatauni) where the plaintiff-respondent no.1 was recorded as an idiot and held that the medical report of the plaintiff-respondent no.1 appears to be false and fabricated. It held that since the PW 1 (plaintiff-respondent no.2) and the PW-2 have both said that the guardian of the plaintiff-respondent no.1 is the plaintiff-respondent no.2 therefore it has to be believed that Raghunath Singh is the heir of Balram Singh. The trial court held that the plaintiff-respondent no. 1 could not have executed the will deed dated 5.6.1998 as he was a person of unsound mind. The suit was decreed and the sale deed was cancelled.
10. In the appeal filed by the defendants against the decree of the trial court, the lower Appellate Court did not frame any points for determination, but observed that the issue no.2 (framed by the trial court) was of paramount importance which was whether the deceased, Balram Singh, was a person of unsound mind. The statement made by the plaintiff-respondent no.1 bearing Paper No. 43A, purportedly made under the provisions of under Order 10 Rule 1 of Code of Civil Procedure2 was considered and held that this would not be a statement under the provisions of Order 10 Rule 1 C.P.C. The court referred to the provisions of Sections 13, 80 and 114 of the Evidence Act and held that no presumption can be drawn that the executor of documents was of normal mind or a brainless idiot at the time of execution of the documents. The court observed that the Consolidation Officer had held the plaintiff-respondent no.1 as an idiot which order was never challenged before any court and held that the decision of the Consolidation Officer would operate as res judicata in the present case. It held that admittedly, at the time of execution of the sale deed the plaintiff-respondent no.1 was not a person of sound mind and thus he had no right to execute the agreement and as such the sale deed dated 23.09.1994 executed by him is a fabricated and a void document. It was also held that during consolidation proceedings the mother of Balram Singh, who was his natural guardian, was appointed as his guardian, but she has died. Under the provisions of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, Raghunath Singh (plaintiff-respondent no.2) being the real brother of the plaintiff-respondent no.1 is his heir and guardian. Accordingly, the appeal was dismissed and the judgement and decree of the trial court were affirmed.
Submission of the learned counsel
11. The learned counsel for the appellants has contended:
(i) The decision of the consolidation authority dated 21.10.1981 in Case No. 4147 under Section 9A(2) of the UPCH Act cannot operate as res judicata in so far as it declared the plaintiff-respondent no. 1, Balram Singh, as a person of unsound mind. The learned counsel has referred to the provisions of Rule 14 of the U.P. Consolidation of Holdings Rules, 19543 to contend that the Consolidation Officer had no power to declare the plaintiff-respondent no. 1 as a lunatic and that order of the Consolidation Officer is a nullity. The learned counsel referred to the provisions of Lunacy Act, 19124 to contend that no power is vested in the consolidation authorities for conducting an inquisition as provided under Section 62 of the Lunacy Act. It is further contended that since that order dated 21.10.1981 passed by the Consolidation Officer declaring the plaintiff-respondent no. 1, Balram Singh, as a person of unsound mind is without jurisdiction and is a nullity, it cannot operate as res judicata. It is contended that the Consolidation Officer, while deciding objections under Section 9A(2) of the UPCH Act is not a court as defined under the C.P.C. While referring to the Explanation VIII of Section 11 C.P.C. the learned counsel has contended that the Consolidation Officer is not competent to decide on the issue of lunacy/unsoundness of mind of the plaintiff-respondent no. 1.
(ii) It was incumbent on the courts below to appoint the plaintiff-respondent no. 2 as the guardian of the plaintiff-respondent no. 1 in view of the provisions of the Hindu Minority and Guardianship Act, 19655 and the provisions of Order 32 Rule 3 read with Rule 15 of C.P.C. The learned counsel, while referring to the array of parties in the plaint, has pointed out that the plaintiff-respondent no. 1, Balram Singh, has been described as 'fatrul aqal', that is, of unsound mind / feeble minded. The plaintiff-respondent no. 2, Raghunath Singh, who had signed the plaint is not shown in the array of parties as the next friend or guardian of the plaintiff-respondent no. 1, Balram Singh. It is contended with reference to the provisions of Hindu Guardianship Act and the provisions of the Guardians and Wards Act, 18906 that the suit is incompetent because the plaintiff-respondent no. 2, Raghunath Singh, was never appointed as guardian of the plaintiff-respondent no. 1. The learned counsel has also referred to the provisions of Sections 52 and 53 of the Mental Health Act, 1987 to contend that it is a special law for the purpose of appointment of guardian of a mentally ill person.
(iii) The learned counsel contends that the suit was not maintainable on behalf of the plaintiff-respondent no. 1 as the trial court had failed to conduct an enquiry as envisaged in Order 32 Rule 15 of C.P.C. in respect of the plaintiff-respondent no. 1.
12. Shri Arvind Srivastava, learned counsel appearing for the plaintiff-respondent no. 2 has contended that the documents filed by the defendant-appellants, namely, the medical certificate dated 19.8.1994 (Paper No. 21C) and the documents/pleadings of Suit No. 553 of 1994 allegedly filed by the plaintiff-respondent no. 1, Balram Singh, on which reliance has been placed by the learned counsel for the defendant-appellants, would not be of any assistance to them. He stated that the medical certificate affirming the sound mental condition of the plaintiff-respondent no. 1 was not duly proved by the person who had issued that certificate, because a minor employee of the health department was produced as defendant witness to prove that document. The learned counsel has referred to the proximity of the date of the medical certificate and the the allegedly suit filed by the plaintiff-respondent no. 1, Balram Singh, on 19.8.1994 and 5.9.1994 respectively on the one hand, with the sale deed dated 23.9.1994 on the other, to contend that the medical certificate was obtained for a fraudulent purpose and the suit was purposely and motivatedly instituted at the behest of the defendant-appellant without there being any cogent reason to do so, only with a view that they could be used by the defendant-appellants for purpose of upholding the impugned sale deed dated 23.9.1994 should it be challenged in a court of law.
The learned counsel further contends that a reading of the provisions of Section 9A(2) of the UPCH Act read with Rule 14 of the UPCH Rules leave no room for doubt that the earlier suit filed before the Consolidation Officer was relevant to the extent that the order of the Consolidation Officer dated 21.10.1981 would operate as res judicata and that the Consolidation Court had jurisdiction to decide the lunacy of the plaintiff-respondent no. 1. It has been urged by the learned counsel that the issue whether the decision of the Consolidation Officer is a nullity would not be a substantial question of law in the facts of the present case and moreover a question regarding when would a finding operate as nullity has already been answered by this Court in the case of Prabhat Sharma and another Vs. Hari Shanker Srivastava reported in 1988 ALJ 436. The learned counsel while referring to Section 99 of C.P.C. contends that non-appointment of guardian of the plaintiff-respondent no. 1 was not a fatal defect and it can be cured because it does not affect the merits of the case or the jurisdiction of the Court. Protection is given to a minor/lunatic under the provisions of Order 32 of C.P.C. and he can be defended by the person having no adverse interest. The learned counsel has referred to the judgements reported in 2019 (1) ADJ 246, AIR 1954 Alld 599, AIR 1994 SC 152, AIR 2000 SC 3335.
Discussion
13. Substantial question of law no. (i) : Whether the finding given in the Consolidation Suit regarding Balram Singh will operate as res judicata in the subsequent suit as the said finding is a nullity in view of the decision of this Court in Prabhat Sharma and another Vs. Hari Shankar Srivastava and others 1988 ALJ 436 which has relied upon the decision of the Supreme Court in Ram Chandra Arya Vs. Man Singh AIR 1968 SC 954?
The provisions of Section 11 of C.P.C. and its Explanation VIII are as follows:
"11. Res judicata-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
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Explanation VIII.--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
14. As far as the proceedings of the consolidation case are concerned, apart from a certified copy of the order dated 21.10.1981 passed by the consolidation officer in Case No. 4147 under Section 9A(2) of the UPCH Act, no other document has been filed by the plaintiff-respondent no. 2. The pleadings / applications / objections could have revealed whether the matter in the present suit was directly and substantially in issue in the case before the Consolidation Officer, and, whether the same parties, or, the parties under whom they or any of them claim litigating under the same title in the present suit were there before the Consolidation Officer and, whether the Consolidation Officer was competent to try the present case.
15. The proceedings under Section 9A(2) of the UPCH Act stood concluded by means of the aforesaid order passed by the Consolidation Officer dated 21.10.1981.
16. Before considering the order dated 21.10.1981 passed by the Consolidation Officer, it is pertinent to refer to the provisions of Section 9A of the UPCH Act which are as follows:
"9A. Disposal of cases relating to claims to land and partition of joint holdings.--(1) The Assistant Consolidation Officer shall :
(i) Where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned ; and
(ii) Where no objections are filed, making such enquiry as he may deem necessary settle the disputes, correct the mistakes and effect partition as far as may be by consolidation between the parties appearing before him and pass orders on the basis of conciliation.
(2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed.
(3) The Assistant Consolidation Officer, while acting under Sub-section (1) and the Consolidation Officer, while acting under Sub-section (2), shall be deemed to be a court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding."
17. Rule 14 of the UPCH Rules reads as follows:
"14. [Section 54(1)]. - (1) The Assistant Consolidation Officer shall, in consultation with the Consolidation Committee, appoint guardians, for purposes of proceedings under the Act, of such tenure-holders who are minors, idiots or lunatics unless such guardians have been already appointed by order of a competent Court.
(2) The guardian appointed for a minor, idiot or lunatic under sub-rule (1) shall be his natural guardian unless the natural guardian possesses, an interest adverse to the interest of the minor, the idiot or the lunatic. If the natural guardian is not so appointed, the Assistant Consolidation Officer shall record reasons therefor and shall then appoint the nearest male relative of the minor, the idiot or the lunatic, not possessing an interest adverse to him, as his guardian.
(3) A list of all such guardians together with the names of their wards shall be published in the village and any person interested in the ward may file an objection against such appointment before the Consolidation Officer within fifteen days of such publication, whose orders shall, subject to the modification, if any, made by orders passed under Section 48, be final."
18. The UPCH Act was enacted to provide for the consolidation of agricultural holdings in State of Uttar Pradesh for the development of agriculture. Chapter II of the UPCH Act deals with the revision and correction of maps and records. Section 4 to Section 12D constitute Chapter II. The Consolidation Officer while acting under the provisions of sub-section 2 of Section 9A of the UPCH Act is deemed to be a Court of competent jurisdiction notwithstanding anything to the contrary contained in any other law for the time being in force with respect to all rights and claims of tenure-holders as reflected in Section 9A. Section 11A of the UPCH Act bars questions in respect of claims to land, partition of joint holdings and valuation of plots, trees, wells and other improvements, relating to consolidation area, to be raised or heard at any subsequent stage of consolidation proceedings. Rule 14 of the UPCH Rules confers a limited jurisdiction upon the Consolidation Officer for appointment of guardians, for the purposes of proceedings under the UPCH Act, of such tenure holders who are minors, idiots or lunatics unless such guardians have been already appointed by order of the competent court.
19. The present suit is for cancellation of a sale deed executed by Balram Singh, plaintiff-respondent no. 1 in favour of the defendant-appellant nos. 1 to 3. The sale deed was executed on 23.9.1994.
20. The certified copy of the order dated 21.10.1981 passed by the Consolidation Officer, Najibabad Camp, Bijnor pertains to Case No. 4147 under Section 9A(2) of the UPCH Act in respect of Villages Mohd. Alipur Tara and Maheshwari, Pargana Mandawar, Tehsil & District Bijnor. The parties mentioned therein are Ram Singh and others Vs. State. The opening paragraph of that order states that since the Case No. 4147 to 4154 and Case No. 4521 are related to each other, they are consolidated and Case No. 4147 would be the main case. The second paragraph of the judgement reads that the present case pertains to Khata Nos. 17, 14, 19, 32, 21, 20, 31, 18. It is mentioned that partition has to be affected between the recorded tenure holders of the aforesaid Khatas. It is further mentioned in the order that there is no objection with regard to the proposed portions as appearing in C.H. Form No. 5.
The order further reads that the dispute is that in all the aforesaid Khatas the name of Balram Singh, unsound mind, guardian Raghunath Singh, brother appears. During preparation of 'tasdik' khatauni, Balram Singh was not shown as of unsound mind and the name of his guardian has also been deleted. The order further reads that Raghunath Singh has objected that Balram Singh be recorded as of unsound mind and his own name be recorded as his guardian as it previously appeared and that by means of an application, Raghunath Singh has prayed that Balram Singh, unsound mind, and his guardian Raghunath Singh, be allotted a single Khata number. The order states that Balram Singh on the other hand moved a separate application that against his name the word unsound mind be removed and his 1/3rd share be separated and a separate chak be made. An issue was framed that whether Balram Singh is not of unsound mind. It was held that Balram Singh was an idiot ('jad'). After considering the facts and the record, the Consolidation Officer recorded that Balram Singh stays with his mother and he does not appear to be a stable minded person and, therefore, held that the natural guardian of Balram Singh would be his mother, Bhagwan Dei and thus, in place of Raghunath Singh, the name of Bhagwan Dei, the mother of Balram Singh would be recorded as guardian. The order finally passed by the Consolidation Officer was one of recording of the partition between each tenure-holder, including the plaintiff-respondent no.1, Balram Singh, and direction was passed for the entries in the revenue records to be made accordingly.
21. In the aforesaid matter before the Consolidation Officer, it is nobody's case that there existed any dispute between the plaintiffs and the defendants who are arrayed in the present case. There is no document on record that shows that the plaintiffs and the defendants of the present suit were arrayed as opposite parties in all or any of the cases before the Consolidation Officer. No copy of any plaint, application, written statement pertaining to the proceedings before the Consolidation Officer were brought on record. The matter under Section 9A(2) of the UPCH Act before the Consolidation Officer was one of partition which was to be effected between the recorded tenure holders of the relevant Khatas. There was no objection to the proposed portions mentioned in C.H. Form No. 5. There was, thus, no dispute with regard to the share of Balram Singh, the plaintiff-respondent no.1. Only one incidental dispute was raised by the plaintiff-respondent no. 2- Raghunath Singh, that was whether he was entitled to be recorded as the guardian of plaintiff-respondent no. 1- Balram Singh. For decision of this dispute the aforesaid issue was framed by the Consolidation Officer. The Consolidation Court negatived the contention of Raghunath Singh, holding that the mother of Balram Singh, Bhagwan Dei, would be his guardian which was to be recorded in the revenue records. There is no material to demonstrate that the proceedings before the Consolidation Officer were between the same parties, or between parties under whom they or any of them claim, litigating under the same title.
22. The matter directly and substantially in issue before the Consolidation Officer was one of partition of the holdings in which a dispute was raised by Raghunath Singh regarding guardianship and an issue was framed by the court that whether Balram Singh is not of unsound mind. The issue of appointment of guardian and unsoundness of mind of Balram Singh was thus, not an issue directly or substantially in issue before the consolidation court but, rather, it was a collaterally or incidentally in issue.
23. In this regard it is pertinent to refer to the following two judgements of the Supreme Court.
The Supreme Court in the case of Sajjadanashin Sayed Md. B.E. EDR v. Musa Dadabhai Ummer & others7 observed that difficulty has been felt in various jurisdictions in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and test have been laid down in various courts. It was observed as follows:-
"18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). We are of the view that the above summary in Mulla is a correct statement of the law.
19. We have here to advert to another principle of caution referred to by Mulla (p. 105):
"It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision."
(emphasis by Court) The Supreme Court referred to three cases relating to instances where in spite of a specific issue and an adverse finding in an earlier suit, the finding was treated as not res judicata as it was purely incidental or auxiliary or collateral to the main issue in each of those cases, and not necessary for the earlier case nor its foundation.
24. In a case before the Supreme Court (Civil Appeal No. 9918 of 2011 - Nand Ram v. Jagdish Prasad - decided on 19 March 2020), the judgment and order passed by the High Court in a Second Appeal filed by the defendant was challenged, whereby the appeal was allowed and the suit for possession of land comprising in Khasra No. 9/19 measuring 3 Bighas 11 Biswas was dismissed. The plaintiffs filed a suit for possession asserting that they were owners in possession of two plots of land bearing two khasra numbers. Portions of the two plots of land were taken on lease for 20 years till 22nd September, 1974 on annual rent by the defendant. It was agreed between the parties that it will not be open to the plaintiff-lessor to seek ejectment of the defendant-lessee from the leased premises, however, if the rent for one year remained in arrear, then the lessor would have the right to eject the lessee. The entire leased land was acquired pursuant to the notification dated 24th August 1959 under Section 4 of the Land Acquisition Act, 1894. The Land Acquisition Collector determined the market value of the land acquired including the super structure upon it. A dispute arose with regard to apportionment of compensation and the same was referred to the Reference Court. The defendant-respondent claimed apportionment of compensation in lieu of his lease-hold rights on the ground that they were deprived of the right to retain possession of that land for the unexpired period of 14 years of the lease in their favour, which was for 20 years in total. In its award, the reference court held that the respondent had not paid rent for more than 12 months and, thus, in accordance with clause 9 of the lease deed, the lease had come to an end. Therefore, the defendant had no right to claim a share in the compensation payable for the land leased to them. A part of the land acquired, comprising in one of the plots of land, was de-notified under Section 48(1) of the Act. Such land, measuring 1 Bigha 19 Biswas continued to be in possession of the defendant-lessee. Thereafter, the suit was filed. In the written statement it was asserted that the land which was in possession of the defendant did not form a part of the alleged lease deed and that the defendant was in possession of this land in his own legal right. The defendant contended that if the plaintiffs had any right in the land in possession of the defendant, then the defendant had become the owner of the land in question by adverse possession. The trial court decreed the suit after evidence was led by the parties. The First Appellate Court affirmed the findings recorded by the trial court. In the Second Appeal, the High Court framed two substantial questions of law, the first of them being:
"Whether the judgment rendered by the Land Acquisition Court on 21st August, 1961 (Ex.PW-1/12) operates as res judicata between the parties as regards the title of the suit property?"
The High Court allowed the Second Appeal holding that the finding recorded in the award that upon non-payment of rent for 12 months, the lease had come to an end, had attained finality, and therefore, such finding would operate as res judicata. The Supreme Court disagreed with that and held as follows:-
"27. Thus, the finding returned in the award of the Reference Court (Ex. PW1/12) that the lease stood determined on account of non- payment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the defendant's claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided."
25. As far as the aspect of the 'finding' by the Consolidation Officer of mental unsoundness of the plaintiff-respondent no.1, Balram Singh, operating as res judicata is concerned, it is important to note, that for persons afflicted by lunacy or unsoundness of mind, special enactments have been in force from time to time.
26. Chapter V in Part III of the repealed Indian Lunacy Act, 1912 provides for 'proceedings in Lunacy outside the Presidency-towns' for inquisition, etc. Proceedings for inquisition, etc. are required to be taken by a District Court as per the procedure prescribed in that Chapter. However, as provided in Section 82 thereof, where subsequent to a finding by the District Court of a person with unsound mind, it is shown to that Court that there is reason to believe that such unsoundness of mind ceased, the Court may make an inquiry in the nature of an inquisition as provided in Chapter V, and if it is found that the unsoundness of mind ceased, the Court shall order all proceedings in the lunacy to cease or to be set aside on such terms and conditions as to the Court may seem fit. Section 82 reads as follows:
"82. Proceedings in lunacy to cease or to be set aside if the court finds that the unsoundness of mind has ceased.-
(l) When any person has been found under this chapter to be of unsound mind and it is subsequently shown to the District Court that there is reason to believe that such unsoundness of mind ceased, such Court may make an order for inquiring whether such person is still of unsound mind and incapable of managing himself and his affairs.
(2) The inquiry, shall, as far as may be, be conducted in the same manner as if prescribed in this chapter for an inquisition into the unsoundness of mind of an alleged lunatic, and if it is found that the unsoundness of mind ceased, the Court shall order all proceedings in the lunacy to cease or to be set aside on such terms and conditions as to the Court may seem fit."
27. Then came the Mental Health Act, 1987. Chapter VI thereof provides for judicial inquisition regarding alleged mentally ill person possessing property, custody of his person and management of his property. Section 75 thereof reads as follows:
"75. Action taken in respect of mentally ill person to be set aside if District Court finds that his mental illness has ceased.--(1) Where the District Court has reason to believe that any person who was found to be mentally ill after inquisition under this Chapter has ceased to be mentally ill, it may direct any court subordinate to it to inquire whether such person has ceased to be mentally ill.
(2) An inquiry under sub-section (1) shall, so far as may be, conducted in the same manner as an inquisition conducted under this Chapter.
(3) If after an inquiry under this section, it is found that the mental illness of a person has ceased, the District Court shall order all actions taken in respect of the mentally ill person under this Act to be set aside on such terms and conditions as that Court thinks fit to impose."
28. Therefore, the aforesaid special Acts governing alleged lunacy or unsoundness of mind of persons have, all through, recognised the possibility that the mental illness of a person may cease even after an inquisition under the relevant provisions of such laws have found him to be mentally ill. Under the circumstances, in view of the aforesaid special Acts, and keeping in view the provision of sub-section (1) of Section 4 of the CPC, the principles of res judicata would not have any application in the facts of the present case insofar as the Consolidation Officer recorded any finding with regard to the alleged lunacy, idiocy or mental unsoundness of the plaintiff-respondent no.1, Balram Singh. Mental unsoundness or mental health of a person is a medical condition of a substantive nature and such condition of such a person is subject the provisions of the aforesaid and related special laws. Thus the doctrine of res judicata, being purely procedural in nature, cannot be invoked for purpose of imparting finality to mental unsoundness or mental health of a person.
29. On consideration of the various aspects of the matter discussed above, it cannot be said that the findings given in the consolidation case regarding Balram Singh would operate as res judicata in the present suit.
30. In the case of Prabhat Sharma v. Hari Shankar Srivastava (1988 ALJ 436), a revision before the High Court was filed by Prabhat Sharma, who was a co-tenant of the house of which the respondent was the owner-landlord. Mamta Sharma, who was the second applicant, was the wife of Hari Krishna Sharma through whom Prabhat Sharma filed the revision. The background of the case was that a suit of 1981, for recovery of arrears of rent and eviction was decreed, and a revision challenging the same, filed before the High Court in 1982, was dismissed. The High Court, however, granted two months further time to vacate the accommodation on the request made by the counsel for the revisionist, subject to an undertaking being filed before the trial court that they would deliver the vacant possession to the respondent no.1 immediately on expiry of two months. Though the undertaking was filed, but the accommodation was not vacated. The decree was put to execution. Two applications were filed by the tenants in the execution proceedings, one of which was under O.32 R.5 read with Section 47 CPC. Two interlocutory orders passed on that application were challenged separately in revisions before the High Court. One revision was dismissed and the other was disposed off observing that the execution case be decided expeditiously. Thereafter, on the objection under Section 47 CPC being dismissed, the revision was filed before the High Court challenging the same. It was held, inter alia, that Prabhat Sharma was not a person of unsound mind but he was capable of defending himself and signed the notice meant for him and also signed a vakalatnama engaging a counsel. The written statement in the suit was signed by him. Therefore, the decree against him did not deserve to be set aside on the ground that he was a person of unsound mind and should have been represented through a next friend in the suit. It was argued on behalf of the revisionist that the conclusion arrived at by the court below that Prabhat Sharma was not a person of unsound mind had not been arrived at in accordance with law. Prabhat Sharma deserved to be treated at par with a minor and a guardian should have been appointed for him. Since it was not done, the decree in the suit was a nullity as far as Prabhat Sharma was concerned and it could not be executed against him. While considering the Lunacy Act, 1912, this court observed that the object of that Act is to find out whether the person is a lunatic, with a view to placing drastic checks upon his rights and privileges which otherwise, as a normal individual he would be entitled to enjoy. It observed that it is entirely different from determination of the question whether a person is of unsound mind for purposes of O. 32 CPC. It held as follows:
"12. By itself, O. XXXII, C.P.C. does not lay down the procedure by recourse to which the unsoundness of mind of a person is to be determined. The matter has been left for determination by the court on basic material which is relevant. It is to be determined objectively. The guiding principle should be whether the person in question is capable of looking after his own interest like a normal human being or is he bereft of the extent of intelligence necessary for awareness about his own interest sufficiently. If the actions and conduct of a person are such that a reasonable person would consider them to be sufficient indication of normal human behavior, unsoundness of mind cannot be attributed to that person. . . . . "
(emphasis by Court) This Court noticed that the executing court had considered the evidence on record before it, which included documentary evidence as well as the statement of a medical practitioner who had treated Prabhat Sharma. The conclusion recorded was that Prabhat Sharma could not be said to be a person of unsound mind and that at the relevant time he was capable of looking after his interest like a normal person. Such a conclusion was found to be reasonable. Under the facts and circumstances of that case, the revision of Prabhat Sharma was dismissed.
31. As already held above, the finding given in the consolidation case with regard to the plaintiff-respondent no.1, Balram Singh, will not operate as res judicata. Having held so, there is no need to answer whether the said finding is a nullity or otherwise in view of the decision of this Court in Prabhat Sharma for purpose of answering this substantial question of law.
32. Substantial question of law nos. (ii) and (iii) :
ii) Whether the courts below were justified in decreeing the suit without appointing the plaintiff-respondent no.2 as the guardian of the plaintiff-respondent no.1 in view of the provisions of Sections 4 and 6 of the Hindu Minority and Guardianship Act, 1956 and the provisions of Order 32 Rule 3 read with Rule 15 of the CPC?
iii) Whether the failure of the trial court to conduct an enquiry as envisaged in Order 32 Rule 15 of the CPC in respect of the plaintiff-respondent no.1 had rendered the suit not maintainable on behalf of the plaintiff-respondent no.1?
Since, the answers to the substantial question of law nos. (ii) and (iii) are based on similar facts and evidence, they are being decided together.
33. It is the contention of the learned counsel for the defendant-appellant that since the plaintiff-respondent no. 2 is not the natural guardian of the plaintiff-respondent no. 1, he can only be a guardian under the Hindu Minority and Guardianship Act, 19568 in case he demonstrates that (i) he is appointed by a Will of father or mother of the plaintiff no. 1, (ii) he is appointed or declared a guardian by a court and (iii) he is empowered to act as such by or under any enactment relating to any court of ward. The learned counsel contends that the sole case being put forth by the defendant-respondent no. 2 is that he being the brother of the defendant-respondent no. 1, is his guardian. He contends that such a statement and stand is unrecognized by law.
34. A perusal of the plaint reveals that the plaintiff-respondent no.2 has not described himself as the next friend or guardian of the plaintiff-respondent no.1 in the array of parties, but, he has verified and signed the plaint on behalf of the plaintiff-respondent no.1. There is no signature / thumb impression of the plaintiff-respondent no.1 in the plaint. The rest of the contents of the plaint have already been referred to above.
35. Rules 1 to 14 of Order 32 CPC (as applicable in the State of Uttar Pradesh) pertain to suits by or against minors. Order 32 Rule 15 CPC makes Rules 1 to 14 (except rule 2A) applicable to persons of unsound mind. Rule 16 is the savings rule.
36. The issue with regard to validity of a suit by a minor being instituted in his name by his next friend, without the next friend being so appointed by a court, is not res nova. The case of Keshav Deo Tulshan v. Jagadish Prasad Tulshan9, decided by the Calcutta High Court, arose out of an application for an order, inter alia, for stay of further proceedings relating to and/or arising out of the ex parte decree passed in a suit of 1953. Jagadish Prasad Tulshan, being a minor, instituted the suit through his next friend and certificated guardian, Puranmall Jaipuria. Thereafter, the guardian was discharged by the court and in his place, the mother of the minor was appointed the certificated guardian and next friend of the minor. Later, on an application of Jagadish Prasad Tulshan, it was recorded by an order dated 28.08.1961, that he had obtained majority. By another order dated 11.09.1961, his mother was discharged from further acting as his certificated guardian and next friend in the suit. The suit was decreed ex parte on 28.03.1964. It was argued that Jagadish Prasad Tulshan did not attain majority on 11.09.1961 and, accordingly, the discharge of the mother from acting as his next friend left the minor without a representative and as such no decree could be validly passed in such a suit and that the decree is null and void. The court observed as follows:
"9. If the provisions of Order 32 of the CPC are analysed it would appear that a distinction between the two lines of cases have been maintained in procedural matters connected with a suit by and against the minor. Various decisions have been placed before me and, in my opinion, the same distinction has been maintained in the said decided cases. It would also appear that the principles involved in such procedural matters are somewhat different in respect of the cases where the minor is the plaintiff and where the minor is the defendant.
10. The provision of Order 32, R. 1 of the Code requires that although the minor plaintiff would himself be the party to the suit, yet because of his immaturity his interest should be looked after or watched by a matured and/or an adult person. It contemplates that prior to the institution of the suit the minor must have the assistance of such an adult person. The underlying principle appears to be this that if the minor gets a decree in his favour then his interest is not prejudiced but if he fails in his attempt and the suit is dismissed with costs then the defendant's right to recover such costs would be in jeopardy. To protect such interest of the defendant under such circumstances, Rule 2 thereof provides that if the defendant did have the opportunity to know about the minority of the plaintiff the defendant could have come up before the Court and applied under the said Rule 2, and the plaint, under such circumstances, might be directed to be taken off the file and the pleader or other person by whom such plaint was presented might be personally saddled with costs so that the defendant would be in a position to recover such costs when so awarded in his favour, but in such an application the Court would not be bound to make an order directing the plaint to be taken off the file. Discretion has been given to Court to make such order as it would think fit. This clearly shows that the institution of the suit by the minor is not, ipso facto, bad and the plaint does not become defective and it remains a good and an effective one. In such an application whether the minor has attained majority or not can be decided. But if no such objection is taken and no application is made by the defendant, the question as to the minority of the plaintiff cannot arise after the decree is passed in the suit on the question relating to the validity thereof. In such a case the defendant would be deemed to have taken advantage of the position. He took the chance of the suit being dismissed on the basis of his written statement and after having failed in that attempt and after allowing the decree to be passed against him he will be precluded from raising the point of defect in procedure for the purpose of challenging the said decree. In such a case when the plaintiff minor gets a decree in his favour there is no question of the defendant's suffering any prejudice as is contemplated under Rule 2 of Order 32 of the CPC. From that point of view it must be held that the provision of Order 32 has been enacted for the purpose of protecting the interest of the minor without causing any prejudice to the interest of the defendant.
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12. The propositions discussed above in respect of such cases would find sufficient support from the principles underlying the express language used in Rule 5 of the said Order 32. It provides to the effect that in respect of orders passed either in the suit or in an application by the minor without such a next friend or a guardian, the Court in its discretion may discharge the same if it will go to affect the interest of the minor. In other words, it will remain a valid order if in spite of such defect in procedure it would enure for the benefit of the minor. This clearly shows that the underlying principle involved therein is that if the minor with an immature brain has done something resulting in an order which has benefited him instead of causing him prejudice, such an order may not be disturbed. The order will remain a valid order. But if by obtaining such an order his interest would be affected thereby then only such an order may be discharged by the Court. The expression "by which a minor is in any way concerned or affected" in sub-rule (2) of Rule 5 of the said Order, when read along with the discretion conferred on Court and the provision for personal liability for costs, must mean, when the order has gone against the minor or against his interest; otherwise the provision would have been made mandatory.
13. The distinction, as discussed above, would be further revealed from an analysis of the said provisions of Order 32 of the CPC. Whereas in the case of a minor plaintiff the person who comes to his assistance as the next friend is a private person, subject to his filing an affidavit of competency, the guardian of a minor defendant is an officer of the Court. Such a guardian is appointed by the Court after the institution of the suit. At the time of the institution of the suit the minor defendant is not represented by any person. He is brought into the suit as a party defendant without any act or volition on his part. Normally reliefs will be claimed against him when he is made a party defendant in the suit. His rights have to be protected. Unless somebody would be there to represent him in the suit the minor would not be deemed to be a party to the suit. Hence, if the decree is passed against him without any guardian being appointed it would be deemed as though he didn't have any existence in the suit. Accordingly, when the decree would be passed against him it would be deemed as though there was no decree against him and such a decree would be a nullity. In the case of a minor defendant, the absence of the guardian does not make it only an irregularity in procedure. It is a matter of substance and goes to the very root because until the minor is represented he would not be a party to the suit and consequently to the decree.
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15. In my opinion, the provision of Rule 2 of Order 32 has been enacted for the purpose that in case a suit instituted by or on behalf of a minor without a next friend the Court acting under sub-rule (2) might be in a position to regularise the irregularity as soon as it is brought to the notice of the Court. If the defect in procedure cannot or should not be cured in the facts and circumstances of the case, then in the interest of the minor the Court is likely to order that the plaint be taken off the file.
16. It necessarily follows that the irregularity in instituting the suit does not make the suit wholly bad but makes it a defect in procedure. The only way it can be corrected is when the defendant makes an application under the said Rule 2 of Order 32. If such an application is not made in between the time of the institution of the suit and the passing of the decree thereon the defendant would be precluded from raising the said point thereafter and will not be permitted to assert that the decree passed in such a suit is in any way a bad decree. In sub-rule (2) of Rule 2 of Order 32 the Court has been given wide powers to make such order as the Court might think fit after hearing the objections raised by the pleader or the person concerned who presented the said suit on behalf of the minor. The initial onus will be on the defendant in such an application to prove that the plaintiff is a minor. If the Court would be satisfied upon the materials placed before it that the plaintiff is a minor and that such fact was suppressed on behalf of the minor to deceive the Court then the Court may direct the suit to be taken off the file and make such person or pleader personally liable for costs. If there is no such mala fide motive the Court might make such order whereby an opportunity would be created for the minor being represented by a next friend and until that would be done the suit might be stayed. These are various orders which the Court might think of passing in appropriate cases but if the defendant would not make such an application and a decree would be passed in a suit by the minor without a next friend then the defendant would be precluded from taking the point at a subsequent stage after the minor had attained majority. The decree, in such circumstance, does not become a nullity because the Court proceeds in the basis that it was not a suit by the minor and the suit was properly instituted. The decision of the question as to whether at the time of the passing of the decree the plaintiff was a minor would be quite immaterial at a stage when such a minor had already attained majority. Similarly, when the plaintiff at the time of the institution of the suit was a minor and duly sued by a next friend and subsequently the next friend is discharged on the statement by the minor that he has since attained majority and if it ultimately transpires that he actually did not attain majority at the date of the discharge of the next friend, any decree passed in such a suit under such circumstances will not make the decree a nullity and will be an effective and a valid decree on the very same principle that unless the objection would be taken by and on behalf of the defendant prior to the passing of the decree the defendant would be precluded from raising the said question of minority of the plaintiff at a subsequent point of time. The defect in procedure, if any, would be deemed to have been waived by the defendant. This it seems is based on sound principle. What could not be expected to be done by the minor without the assistance of an adult person had actually been done by his own skill and wisdom. Hence he needed no further protection."
After considering the gamut of case laws cited on behalf of the defendant on the issue, including the judgement of the Supreme Court in Ram Chandra Arya v. Man Singh10, the High Court observed that the cases have not in any way touched the principle laid down in a series of cases where the plaintiff as a minor has sued without a next friend and a decree has been passed thereon. The court therefore, concluded that the decree cannot be a nullity.
37. In the case of Nagaiah and another v. Chowdamma11, the facts of the case before the Supreme Court were that a suit was filed in 1989 by the appellants praying for a declaration that the suit schedule property is the joint property of the appellants alongwith their father, Kempaiah (defendant no.1) and that they are entitled to 2/3rd share in the said property; that the sale deed executed by their father in favour of the defendant no.2, Chowdamma, was not binding on their 2/3rd share in the suit schedule property. A relief for permanent injunction was also sought. At the time of filing of the suit the plaintiff-appellant no.2 was aged about 17 years. The plaintiff-appellant no.1 being the elder brother of the plaintiff-appellant no.2, filed the suit not only on his personal behalf, but also on behalf of the plaintiff-appellant no.2 (who was a minor). The suit was dismissed but the first appellate court decreed the suit. The second appeal before the High Court was allowed and the suit was dismissed mainly on the ground that the plaintiff-appellant no.1, being the elder brother of the plaintiff-appellant no.2, could not act as his guardian during the lifetime of Kempaiah, the father of the plaintiffs. Since the first defendant is the father of the plaintiff-appellant no.2, he was the natural guardian and hence only he could represent him and none else. The only question before the Supreme Court was that whether the first plaintiff being the elder brother of minor second plaintiff (at the time of filing of the suit) could have filed the suit on behalf of the minor as his next friend / guardian. After noticing the provisions of S.4(b) of the Hindu Guardianship Act and O. 32 CPC, the Supreme Court observed as follows:
"10. A bare reading of Order 32 Rule 1 of the Code makes it amply clear that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the "next friend" of the minor. The next friend need not necessarily be a duly appointed guardian as specified under clause (b) of Section 4 of the Hindu Guardianship Act. "Next friend" acts for the benefit of the "minor" or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per the Hindu Guardianship Act. He acts as an officer of the court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The aforesaid provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order 32 of the Code.
11. Order 32 Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad litem; i.e.
(a) where the suit is filed on behalf of a minor, and
(b) where the suit is filed against a minor.
In case, where the suit is filed on behalf of the minor, no permission or leave of the court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the plaintiff to get the appropriate guardian ad litem appointed by the court for such minor. A "guardian ad litem" is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs.
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14. Not only is there no provision for appointment of next friend by the court, but the permission of the court is also not necessary. However, even in respect of minor defendants, various High Courts are consistent in taking the view that the decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. The High Courts have observed in the case of minor defendants, where the permission of the court concerned under Order 32 Rule 3 of the Code is not taken, but the decree has been passed, in the absence of prejudice to the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the minor defendant for setting aside the decree. . . . . . . . . . . . . . . . . . . . . . In the matter on hand, the suit was filed on behalf of the minor and therefore the next friend was competent to represent the minor. Further, admittedly no prejudice was caused to Plaintiff 2.
15. "Guardian" as defined under the Hindu Guardianship Act is a different concept from the concept of "next friend" or the "guardian ad litem". Representation by "next friend" of minor plaintiff or by "guardian ad litem" of minor defendant is purely temporary, that too for the purposes of that particular law suit.
16. There is no hurdle for a natural guardian or duly constituted guardian as defined under the Hindu Guardianship Act to represent minor plaintiff or defendant in a law suit. But such guardian should not have adverse interest against minor. If the natural guardian or the duly constituted guardian has adverse interest against the minor in the law suit, then a next friend or guardian ad litem, as the case may be, would represent the minor in the civil litigation.
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19. The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order 32 of the Code. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited only for the suit and after the discharge of that guardian ad litem/next friend, the right/duty of guardian as defined under clause (b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order 32 Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act."
The Supreme Court noted that the plaintiff-appellant no.2 was pursuing the matter from the date of attaining majority till the present date on his own, and held that the defendant no.1, though was his father, could not have represented him in the suit as his guardian because his interest was adverse to that of the plaintiff-appellant no.2. Therefore, it was held that it was not open to the High Court to non-suit the plaintiff-appellant no.2.
38. In the present suit, as noted above, in the array of parties in the plaint, the name of plaintiff-respondent nos. 1 and 2 are specified separately. The relief claimed is for cancellation of a sale deed executed by the plaintiff-respondent no.1, which is in respect of his own property, in favour of the defendant-appellants. No relief has been claimed by the plaintiff-respondent no.2 for himself. Nowhere in the plaint is there any allegation that the plaintiff-respondent no.2 has any right in the transferred property during the lifetime of the plaintiff-respondent no.1. As a matter of fact, in paragraph no.9 of the plaint, it is stated that the plaintiff no.2 is filing the suit on behalf of the plaintiff no.1. Moreover, in paragraph no.11 it has been stated that the plaintiff no.2 being the real brother and guardian of the plaintiff no.1 has a right to file the suit.
39. Rule 3 of Order 48 of the CPC provides that the forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned. In Appendix A of the CPC, which deals with pleadings, Part (2) deals with "Description of Parties in Particular Cases". For a minor, and, a person of unsound or weak mind, the description mentioned therein are as follows:
"A.B., a minor (add description and residence), ................ ................... by C.D. [or by the Court of Wards], his next friend."
"A.B. (add description and residence) ................................, a person of unsound mind [or of weak mind], by C.D. his next friend."
40. Under Order 32 Rule 12 CPC, it is provided, inter alia, that a minor plaintiff shall, on attaining majority, elect whether he will proceed with the suit. Where he elects to proceed with the suit, he shall apply for an order discharging the next friend and for leave to proceed in his own name. In such a case, the title of the suit shall be corrected so as to read henceforth thus:
"A.B., late a minor, by C.D., his next friend, but now having attained majority."
Thus, the description of parties relating to a minor or a mentally unsound plaintiff that are mentioned in Appendix A are also in accordance with the substantive provision of Order 32 Rule 12 CPC. The purpose of stating the name of the next friend of such a plaintiff in the manner specified, is to leave no ambiguity regarding that it is the minor/mentally unsound plaintiff who is the party in the suit.
41. In the present suit, the plaintiff-respondent no.2, while claiming to be the guardian of the plaintiff-respondent no.1, has verified and signed the plaint on behalf of the plaintiff-respondent no.1. Thus, it is to be deemed for all facts and purposes, that at the time of institution of the suit, the name of plaintiff-respondent no.2 appeared in the plaint only as the next friend of the plaintiff-respondent no.1 and for no other purpose and in no other capacity. The separate name of the plaintiff-respondent no.2 in the plaint is, therefore, to be read as a variation to the description of plaintiff as provided in Appendix A of the CPC in such cases. If that would not be the case, then the suit itself would be rendered defective as the plaint is neither signed nor verified by the plaintiff-respondent no.1.
42. However, a decree may not be set aside, provided that the interest of the next friend is not adverse to that of the plaintiff and provided further that the decree has not caused prejudice to the plaintiff.
43. It is pertinent to note that the plaintiff-respondent no.1, Balram Singh, had filed an application Paper no.33C along with an affidavit Paper no.34 C on 14.02.1996 stating that he is not a person of unsound mind, and, that Raghunath Singh, plaintiff-respondent no.2, has filed the suit on wrong facts and he has no right to file the suit on behalf of the plaintiff-respondent no.1; that the plaintiff-respondent no.1 can well understand his interest and he has executed a sale deed of his agricultural land in favour of the defendants Rishipal, Sushil Kumar and Rakesh Kumar on 23.08.1994 and they are in possession of the same; that the plaintiff is filing the present application on which his photograph is also affixed, and the court itself can enquire from the plaintiff regarding his insanity or otherwise and ask any questions.
On 15.02.1996 the plaintiff-respondent no.1, Balram Singh, filed another application Paper No.37C stating that the applicant is not of unsound mind and he does not wish to continue with the present suit, and therefore, the suit be dismissed. On 19.02.1996 another application Paper No.39C was filed by the plaintiff-respondent no.1 praying for disposal of the applications Paper Nos.33C and 37C prior to recording of evidence in the suit.
44. Thereafter, the plaintiff-respondent no.2, Raghunath Singh, filed an application Paper No.40C dated 03.04.1996, stating that during consolidation proceedings, Balram Singh was declared as a person of unsound mind and under Rule 14 of the UPCH Rules his guardian was appointed, and therefore, it is necessary that his medical examination be done at the Mental Hospital at Bareilly. Objections to this application was filed by the defendant-appellants on 23.05.1996.
45. On 06.08.1997, the plaintiff-respondent no.1, Balram Singh, was personally present before the trial court and his statement was recorded. The parties were heard on application Paper no.33C and 11.08.1997 was fixed for orders. The order of the court on that date is as follows:-
"Case called out. Parties are present and Balram personal present and statement recorded. Heard on C33. Fix 11.8.97 for order."
On 11.08.1997, the court ordered that the counsel for the parties have to be further heard on the applications Paper No.33C and Paper no.40C and 02.09.1997 was fixed as the next date. However, these applications were never decided by the trial court.
46. Another application Paper no.44C dated 11.08.1997 was filed by the plaintiff-respondent no.2, Raghunath Singh, stating that the application dated 14.02.1996 filed by the plaintiff-Balram Singh (Paper no.33C) contains false statements and that Balram Singh is a person of unsound mind. It was prayed that a report be called from the Government Mental Hospital at Bareilly regarding the mental condition of Balram Singh, for which the plaintiff-respondent no.2 would bear the entire expenses. Against this application, a detailed reply/objection Paper no.45C was filed by the plaintiff-respondent no.1 on 20.08.1997 alongwith an affidavit. The application Paper no.44C was dismissed in default on 04.01.1999.
47. Order 32 Rule 15 CPC reads as follows:
"15. Rules 1 to 14 (except Rule 2-A) to apply to persons of unsound mind.- Rules 1 to 14 (except Rule 2-A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being suit."
The mandate of Order 32 Rule 15 CPC for purpose of applicability of the relevant Rules of Order 32 CPC to persons of unsound mind, requires an adjudgment by the Court, before or during the pendency of the suit, regarding unsoundness of mind of a plaintiff or a defendant or, if not so adjudged, an enquiry recording a finding that he is incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued.
48. From perusal of the plaint itself it is apparent that the plaintiff-respondent no. 1 was alleged to be a person of unsound mind by the plaintiff-respondent no. 2 which was denied by the defendant-appellants in the written statement. The plaintiff-respondent no. 2 had stated that exercising undue influence on plaintiff-respondent no. 1, the defendant-appellants got executed the sale deed dated 23.8.1994 in their favour. These facts were denied in the written statement. Repeated applications were filed by the plaintiff-respondent no.1 that he was not mentally unsound and had executed the sale deed on his own free will and accord. On 06.08.1997 the statement of the plaintiff-respondent no.1 was recorded by the trial court. This statement is on record as Paper no.43A. It reads as follows:
"My name is Balram Singh. Father's name is Harkesh Singh. Village Maheshwari Pargana Mandavar Tehsil and District Bijnor.
I have sold the disputed land to Rishi Pal and others. This land had been sold by me about 3 years ago. This land is 12 bighas (kachchi). I am not able to state the khasra number of the disputed land. I had executed the sale deed of the disputed land in the registration office at Bijnor. Raghunath Singh is my brother. Now I do not reside with my brother Raghunath but I live with Rishi Pal and others."
(English translation by Court)
49. It is in the judgement of the lower appellate court that it has been observed that Balram Singh has not been able to state the khasra number of the land sold nor has he specified the date of any sale deed, and, nor has he stated that for what value the land was sold. It was observed by the court that the statement of Balram Singh does not come within the purview of O.10 R.1 CPC and so it cannot be his testimony and for this reason, it is inadmissible in evidence. It is further observed that even otherwise, the statement is defective as neither was it read out to Balram Singh nor has he affirmed the same.
50. There are no separate orders of the courts below with regard to either the applications (Paper nos.33C, 37C and 39C) filed by the plaintiff-respondent no.1, Balram Singh, or with regard to his statement. It is thus evident, that though an enquiry was started by the trial court pertaining to the capability or otherwise of the plaintiff-respondent no.1 of protecting his interest, by reason of any alleged mental infirmity, no finding or order was passed on the enquiry. Resultantly, the issue of maintainability of the suit on behalf of the plaintiff-respondent no.1 by the plaintiff-respondent no.2 was never looked into. In view of the provisions of Order 32 Rule 15 of the CPC it was necessary for the court of first instance to look into the fact of maintainability of the suit on behalf of the plaintiff-respondent no.1 by the plaintiff-respondent no.2 where a statement was made in the plaint under Order 7 Rule 1(d) of the CPC that the plaintiff-respondent no.1 is of unsound mind.
51. In the judgement of Somnath v. Tipanna Ramchandra Jannu12, the Bombay High Court held as follows:
"17. The above discussion clearly leads to the logical conclusion that when the plaint is being examined for the purpose of admission, it if contains a statement as required by clause (d) of Rule 1 of Order 7 that the plaintiff is a person of unsound mind and that a next friend is suing on his behalf, the court must at once hold an inquiry. It is the duty of the court to do so, and it is not necessary for the next friend to make a separate application for that purpose. This inquiry should ordinarily include the calling of the plaintiff himself and questioning him in Court. If the Court entertains doubt about the mental capacity or the soundness of his mind, it is open to the Court to take further assistance in the form of medical examination and the evidence of the doctor under whose observations the plaintiff may be kept. The quantum and extent of inquiries must be left in each case to the circumstances prevailing. There may be a plaintiff who on immediate view may appear to be a person of unsound mind, and the Court may not need much evidence beyond recording of the questions put to and the answers given by the person concerned. There can be other cases which are not so clear and more evidence may be necessary. However, apart from the total extent of the evidence that might be led, we would suggest that as a matter of strong commonsense approach, the plaintiff who is alleged to be of unsound mind should be invariably called for being questioned when the case falls under the second part of Rule 15 of Order 32. This inquiry is made for the purpose of recording a finding by the court that the plaintiff is a person of unsound mind, or a person mentally so infirm as to be incapable of protecting his own interests. The provisions of Rule 15 of Order 32 make it possible for a next friend to sue on behalf of an adult person as a next friend only when the person is either so adjudged by a court of competent jurisdiction, or if not so adjudged, is found by the court on inquiry to be so. That is the foundation, prima facie, for a next friend to avail and proceed with the suit. Such inquiry is obviously an ex parte inquiry for the court to give a finding and to admit the plaint and issue the process to the other side."
The Bombay High Court went on to hold that it was the duty of the court to conduct an enquiry where the defendant contradicts the unsoundness of mind of the plaintiff and if, on such enquiry the court finds that the plaintiff is not of unsound mind, the presentation of the plaint is itself improper and is liable for rejection.
52. There is merit in the contention of the learned counsel for the appellant-respondents that given the strong objections being raised by the plaintiff-respondent no.1 regarding his alleged mental unsoundness and in view of the averment that the plaintiff-respondent no.2 was not competent to maintain the suit on his behalf, it was bounded duty of the court to undertake an enquiry contemplated under Order 32 Rule 15 CPC and record a finding. Though the statement of Balram Singh recorded on 06.08.1997 purports to be under Order 10 Rule 1 CPC, a perusal of the statement reveals that it is apparently his statement recorded by the trial court pursuant to his examination under Order 10 Rule 2 CPC for purpose of conducting an enquiry under Order 32 Rule 15 CPC. However, the enquiry remained inconclusive as is reflected from the order dated 06.08.1997. The lower appellate court, without properly appreciating the nature of the statement made by the plaintiff-respondent no.1, has misdirected itself in holding that that statement is inadmissible in evidence and is defective.
53. The lack of a proper enquiry and a finding of the court thereon, as envisaged in Order 32 Rule 15 CPC has led to a situation that is not comprehended by law. The death of plaintiff-respondent no.1, Balram Singh, on 25.07.1998, was brought to the notice of the trial court by the defendant-appellant no.1 in his application Paper no.54C dated 24.8.1998 by means of which, dismissal of the suit was sought. By means of an application Paper no.69A dated 18.11.1998 moved by the plaintiff-respondent no.2, amendment of the plaint was sought. The trial court, by its order dated 18.09.1999 allowed the amendment application while observing that the plaintiff-respondent no.2 is already a party to the suit and as such the suit would not be barred under Section 5 (sic) of the Limitation Act, and, that the plaintiff-respondent no.2 is stating himself to the guardian of the plaintiff-respondent no.1 who is stated to be a person of unsound mind. The plaint was accordingly amended.
54. It is pertinent to note some of the amendments made in the plaint. In the array of parties, after the description of plaintiff-respondent no.1, Balram Singh, the words added were '(deceased) and whose heir is the plaintiff no.2'. A new paragraph no. 11-A was added in which it was stated that ' the plaintiff Balram Singh has died during pendency of the suit and the plaintiff no.1(sic), legally and by heirship, is his sole heir who is plaintiff no.2 since earlier'.
55. It is, therefore, evident that the plaintiff-respondent no.2 has contrived and used this device of amendment of the plaint to be a party to the suit as a plaintiff, without actually being one, and has continued the suit even after the death of the plaintiff-respondent no.1 without even seeking substitution under the provisions of Order 22 of the CPC. After the death of the plaintiff-respondent no.1, it was necessary for the plaintiff-respondent no.2 to apply and demonstrate to the court that the right to sue survives and that the suit did not abate; and, that he had a right to be substituted in place of the plaintiff-respondent no.1. After the death of the plaintiff-respondent no.1, Balram Singh, the plaintiff-respondent no.2 could not continue the suit without being duly substituted, and, that too only in case the suit was maintainable. Merely because an issue was framed by the trial court as to whether the plaintiff-respondent no.2, Raghunath Singh is the heir of the deceased plaintiff-respondent no.1, Balram Singh, would not have the effect of waiving the mandate of Order 22 of the CPC.
56. The plaintiff-respondent no.2, Raghunath Singh, has staked his claim to be the guardian of the plaintiff-respondent no.1, Balram Singh, since a very long time. Even when the natural guardian of Balram Singh, his mother Bhagwan Dei, was alive, he wanted his name to be recorded as the guardian of Balram Singh during the consolidation proceedings. In his cross-examination, the plaintiff-respondent no.2 has admitted that after the death of their mother, Bhagwan Dei, neither he nor anyone else had moved any application before the District Judge (for appointment of a guardian). He denied knowledge that with whom was Balram Singh residing. He admits that neither he attended the funeral nor the thirteenth day ('terahi') ritual of Balram Singh. He even denies knowledge of who performed the 'terahi' ritual of Balram Singh. He further states in his cross-examination that the funeral and last rites of his mother, Bhagwan Dei, were done by the father of the defendant-appellants, Ram Nath.
Thus it can be presumed that the plaintiff-respondent no.2, Raghunath Singh, had apparently, no interest whatsoever in the plaintiff-respondent no.1, Balram Singh, till the time he executed the sale deed in favour of the defendant-appellants.
57. The statement and applications/objections made and filed by the plaintiff-respondent no.1 before the trial court, put a question mark on the alleged mental unsoundness of the plaintiff-respondent no.1. As a matter of fact the statement of the plaintiff-respondent no.1 recorded by the trial court (Paper no.43A) appears to be coherent and understandable, and appears to be in response to the examination and queries by the court. Just because he has not specified the khasra number does not lead to a conclusion of unsoundness of mind. Though the lower appellate court has observed that the date of the sale deed and the amount of sale consideration have not been mentioned by Balram Singh in his statement, it is not reflected in the statement whether trial court examined him in these regards.
58. Had the trial court recorded a finding on completion of the enquiry envisaged under Order 32 Rule 15, that the plaintiff-respondent no.1, Balram Singh, was incapable of protecting his interest due to any mental infirmity, the name of the next friend in the plaint, who was the plaintiff-respondent no.2, could have been justified, had his interest not been adverse to the plaintiff-respondent no.1 and had such adverse interest not caused prejudice to the interest of the plaintiff-respondent no.1. On the other hand, in case a finding after enquiry was recorded that the plaintiff-respondent no.1 was capable of protecting his interest, then there was no need at all of the next friend.
59. In view of the facts and circumstances of the case, as discussed above, to my mind, there is no doubt that the interest of the next friend, plaintiff-respondent no.2, Raghunath Singh, was adverse to the interest of plaintiff-respondent no.1, Balram Singh, and by reason of such adverse interest, prejudice has been caused to the interest of plaintiff-respondent no.1.
Thus the suit was not maintainable and the courts below were not justified in decreeing the suit.
60. This appeal is, accordingly, allowed. The judgement and decree dated 11.7.2007 and 24.7.2007 respectively passed by the Additional District Judge, Court No. 2, Bijnor dismissing the Civil Appeal No. 96 of 2006 filed by the appellants, and the judgement and decree dated 30.11.2006 passed by the Additional Civil Judge (Junior Division), Court No. 3, Bijnor in Original Suit No. 72 of 1995 are set aside. The Original Suit No. 72 of 1995 is dismissed.
Order Date :- 9.6.2020 A. V. Singh (Jayant Banerji, J.)