Mahanthi Bhavani Shankar vs Karubothu Muthyalamma on 15 December, 2020

[Cites 12, Cited by 0]

Andhra Pradesh High Court - Amravati

Mahanthi Bhavani Shankar vs Karubothu Muthyalamma on 15 December, 2020

Bench: Battu Devanand

                              1


       THE HON'BLE SRI JUSTICE BATTU DEVANAND

     CIVIL REVISION PETITION NOs.2034 & 2036 of 2019

COMMON ORDER:

These Civil Revision Petitions have been filed under Article 227 of the Constitution of India, to revise the common order, dated 06.06.2019 in I.A.No.736 of 2012 in O.S.No.364 of 2012 and I.A.No.772 of 2013 in O.S.No.298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram.

2) The petitioner is plaintiff in O.S.No.364 of 2012 and defendant in O.S.No.298 of 2013 and the respondent is the defendant in O.S.No.364 of 2012 and plaintiff in O.S.No.298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram.

3) The respondent herein filed I.A.No.736 of 2012 in O.S.No.364 of 2012 and I.A.No.772 of 2013 in O.S.No.298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram, seeking to appoint the respondent as a guardian, next friend of the plaintiff in O.S.No.364 of 2012 and defendant in O.S.No.298 of 2013 and to prosecute the suit on her behalf, as she is suffering from unsoundness of mind.

4) The parties hereinafter will be referred to as arrayed in I.A.No.736 of 2012 in O.S.No.364 of 2012 and I.A.No.772 of 2 2013 in O.S.No.298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram.

5) As per the averments made in the affidavit filed in support of I.A.No.736 of 2012 in O.S.No.364 of 2012 and I.A.No.772 of 2013 in O.S.No.298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram, the case of the respondent herein as thus:

6) The case of the petitioner is that the plaintiff/defendant by name Karubothu Muthyalamma is the mother of the petitioner.

The said Muthyalamma got plaint schedule property under a gift deed, dated 30.09.1999 from one Anapu Lakshmi and since then she is in possession and enjoyment of the property with her own right, title and interest and paying taxes to the Municipality. Prior to 2004, she has been suffering from mental derailment and she was referred to Dr. Kasturi Subrahmanyam, Sanjivi Hospitals, T. Nagar, Rajahmundry. The Doctor diagnosed that she is a patient of psychic disorder and advised to take her to the Psychiatric expert. Right from the year, 2004 onwards, Muthyalamma has been taking treatment under Dr. Karri Rama Reddy in his hospital. She lost the power of discretion, incapable of knowing the nature of the act, she doing on account of her unsoundness of mind. Consequently, on the death of the husband of Muthyalamma, one Mahanthi Durga Raju, father of Mahanthi Bhavani Sankar obtained the sale deed 3 from Muthyalamma in respect of plaint schedule property in favour of Mahanthi Bhavani Sankar without paying any consideration by fraud, misrepresentation and undue influence.

The transaction is not real and the same is brought into existence. She has been paying the taxes to the entire property including plaint schedule property and the petitioner intends to meet the same by construction of a house in it. As the existence of the document in the public records is a clog over the title of the plaintiff. She requested Mahanthi Bhavani Sankar to cooperate for the cancellation of the document, but he did not respondent. The petitioner is the best person to safeguard the interest of Muthyalamma. Under those circumstances, Muthyalamma filed a suit in O.S.No.364 of 2012, being a mentally retarded woman, represented by her daughter, next friend and guardian. In the said suit, I.A.No.736 of 2012 was filed by the petitioner herein under Order 32, Rule 1 R/w Rule 15 and Section 151 of C.P.C., praying to appoint her as guardian and next friend of the plaintiff and to prosecute the suit on her behalf as she is suffering from unsoundness of mind.

7) The suit in O.S.No.298 of 2013 was filed by the respondent herein for permanent injunction restraining the defendant, her men and agents from every interfering with peaceful possession and enjoyment of the plaint schedule property in an extent of 97 ½ sq. Yards purchased by way of a 4 registered sale deed vide document No.1495/2005, dated 19.02.2005 by Karubothu Muthyalamma i.e., the mother of the petitioner herein. In the said suit, the petitioner herein filed I.A.No.772 of 2013 under Order 32, Rule 1 R/w Rule 15 and Section 151 of C.P.C., praying to appoint the petitioner as guardian and next friend of the defendant therein and to prosecute the suit on her behalf as she is suffering from unsoundness of mind.

8) The respondent filed his counter and denied the petition contents. He contends that Muthyalamma is not a mentally retarded woman and not a person suffering from mental derailment. She has been deliberately characterized by her daughter as mentally retarded woman solely with the malafide intention of wriggling out of the sale deed, dated 19.02.2005 executed by her in favour of him. Muthyalamma has been managing and attending to her affairs for herself and she is not a person of unsound mind or mentally retarded. The respondent is fully aware of the sale of the schedule property to the petitioner. As petitioner is the purchaser of the schedule property for valuable consideration, the question of cancellation of the sale deed does not arise. He is not aware about the alleged mental ill-health and taking treatment by Muthyalamma with Dr. K. Subrahmanyam and later Dr. K. Rama Reddy.

9) During the course of enquiry, PW.1 was examined and Ex.A.1 was marked on behalf of the petitioner. No oral and documentary evidence adduced by the respondent. After hearing the arguments on both sides and on appreciation of the evidence available on record, the Court below allowed the petitions holding that Muthyalamma suffering from mental derailment i.e., she was in unsoundness of mind and it can be safely concluded that Muthyalamma is suffering from unsoundness of mind and a guardian, her daughter Maddila Varalakshmi can be appointed to defend herself. Aggrieved by the order of the Court below, the present Civil Revision Petitions are filed.

10) Heard Sri N. Vijay, learned counsel for the revision petitioner and Sri K.B. Ramanna Dora, learned counsel appearing on behalf of Sri P. Vivek, learned counsel for the respondent.

11) Learned counsel for the revision petitioner submits that the Court below erred in allowing the petitions filed by the respondent holding that Muthyalamma is suffering from unsoundness of mind and her daughter can be appointed as a guardian, next friend to defend her. Learned counsel submits that as on the date of the suit or as on the date of execution of the document, the mental status of the mother of the petitioner has to be considered. Learned counsel would submit that the 6 husband of Muthyalamma died long ago and she is residing at Srinagar, Rajahmundry and the only daughter of the plaintiff i.e., petitioner herein has been residing with her husband at Undi, Bheemavaram Mandal. As such, the said Muthyalamma i.e., the mother of petitioner is residing at Rajahmundry alone and independently without any assistance of the petitioner for day to day needs. As such, the finding of the Court below that Muthyalamma is suffering from unsoundness of mind is incorrect.

12) Learned counsel further submits that Doctor, who treated Muthyalamma, was examined as PW.1 in O.S.No.364 of 2012.

In his evidence he deposed that he did not notice any abnormalities in the health condition of Muthyalamma during the relevant period i.e., as on the date of the execution of the document on 19.02.2005 and she is hale and healthy and in sound mind and as such, there is no necessity to appoint the petitioner as guardian, next friend. The Court below erroneously appointed the petitioner as guardian, next friend to Muthyalamma. Learned counsel would submit that the Court has to call and see the person to clear doubts about the health condition of Muthyalamma, but this was not done by the Court below and as such, the order passed by the Court below is unsustainable and sought to allow these Civil Revision Petitions.

13) On the other hand, Sri K.B. Ramanna Dora, learned counsel appearing on behalf of Sri P. Vivek, learned counsel for the respondent, submits that the Court need not examine the mother of the petitioner personally in the light of the evidence available on record and no prejudice will be caused to other side by allowing the petitioner to represent her mother as guardian, next friend. He submits that there is no infirmity in the order of the Court below and sought dismissal of the present revision petitions.

14) Having heard the submissions of both the counsel and upon perusing the material available on record, the only point to be considered in these Civil Revision Petitions is whether the Court below is right in holding that the Muthyalamma i.e., the mother of the petitioner is suffering from mentally unsoundness of mind and appointing the petitioner as guardian, next friend to prosecute the suit on her behalf is in accordance with law or not.

15) It is an admitted fact as per the averments of the plaint in O.S.No.364 of 2012 that the said Muthyalamma is a resident of Srinagar, Rajahmundry and her husband Appa Rao died long ago and she has only one daughter by name Maddila Varalakshmi, who is the present petitioner and residing with her husband at Undi, Bheemavaram Mandal. After careful scrutiny of these averments, it reveals that the mother of petitioner 8 Muthyalamma is residing at Srinagar Colony, Rajamahendravarm independently and her daughter is residing at Undi, Bheemavaram Mandal. To know the fact that whether anybody assisting the said Muthyalamma for her day to day needs, if she is suffering with unsound mind, there are no such recitals in the plaint.

16) The Doctor, who treated Muthyalamma, was examined as PW.1. During his cross examination, PW1 deposed that Muthyalamma came to him as an Out-patient on 19.01.2005, later on 17.02.2005 and when she came to the hospital, her condition was normal and he prescribed medicines as Out-

patient. Subsequent to 17.02.2005, she came to him as Out-

patient on 19.03.2005 and her condition was normal. Either on 17.02.2005 or on 19.03.2005 he did not find any abnormalities in her mental status. He further deposed that in "Schizophrenia" patient when the condition is normal is capable of entering into contracts like sale etc. In the re-examination PW.1 further deposed that when a patient is not seen on a particular day it is not possible to assume her mental condition.

"Schizophrenia" although may not manifest behaviorally, internal error would remain biochemically. In further cross-

examination of PW.1, he deposed that on 19.03.2005, when she came to him as an outpatient, no untoward incident or behavioral changes subsequent to her earlier visit on 17.02.2005 were reported to him.

17) As seen from the evidence of PW1, it is an admitted fact that first time the said Muthyalamma came to him as outpatient for treatment on 19.01.2005. Again on 17.02.2005 she came to his hospital. On the said both occasions her condition was normal and he prescribed medicines. Later, on 19.03.2005 she came as outpatient and on that day also her condition was normal.

18) Admittedly, the alleged execution of document was on 19.02.2005. In the light of the evidence of PW1 between 19.01.2005 to 19.03.2005, the Doctor noticed that the health condition of Muthyalamma was normal. PW.1 clearly deposed in his evidence that "Schizophrenia" patient when the condition is normal is capable of entering into contracts like sale etc. But the Court below came to a conclusion that Muthyalamma suffering with mental disorder at the time of disputed document dated 19.02.2005. The Court below also observed that there is no record to show that the mental health condition of the Muthyalamma as on today. It itself shows that there is no consistency in the opinion of the Court below in appreciating the evidence of PW.1.

19) Learned counsel for the petitioner relied on the decisions rendered in:

(1) Duvvuri Rami Reddi v. Duvvudi Papi Reddi1 (2) Tallam Suresh Babu v. T. Swetha Rani2 and (3) Leelason Breweries Limited, Govindapura, Bhopal v.

Beemireddy Lakshminarayana Reddy3

20) In Duvvuri Rami Reddi's case (1 supra), the High Court of Andhra Pradesh while discussing the scope of Order 32, Rule 15 of C.P.C. framed certain principles in order to assess the mental status of a person held at para No.22 as hereunder:

22. From these decisions, the fallowing principals emerge:

(1) Order XXXII, Rule 15 C. P. C. places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rules. 1 to 14.

(2) Order XXXII Rule 15 C. P. C. applies not only to a person adjudged to be of unsound mind, as under the old Code, but also to a person of weak mind.

(3) Where it is alleged that a party to a suit is of unsound mind, and the other party denies it, the Court must hold a Judicial inquiry, and come to a definite conclusion, as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interests in the suit.

(4) Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others.

1963 0 AIR (AP) 160 2 2018 (3) ALD 103 (DB) 3 2002 (2) ALD 65 11 (5) Whether a person is of unsound mind or mentally infirm for the purpose of the rule and the extent of the infirmity has to be found by the Court on inquiry.

(6) Where the question of unsoundness of mind arises not only under Order XXXII, Rule 15 C. P. C. but is also one of the issues in the suit, the Court has amole jurisdiction to enquire into that question, and for that purpose seek medical opinion.

(7) The enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers, and as Courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken.

21) In Tallam Suresh Babu's case (2 supra), the High Court of Andhra Pradesh held at Para Nos.39 and 44 as hereunder:

39. In fact, history is replete with instances of persons suffering from even paranoid schizophrenia, becoming great achievers. One such case has found its way even to the law books (if not to the law courts, about which there are no records), with the Karnataka High court referring to the same in one of its judgments. In Para 24 of its decision in Shilpa vs. Praveen (AIR 2016 Kant 169), the Karnataka High Court, recorded the following: At this stage, we are reminded of a story of success portrayed by Sylvia Nasar in the Biography, A Beautiful Mind (published by Simon & Schuster, as well as a Film of the same name) of John Forbes Nash Jr., an American Mathematician, born on June 13, 12 1928. He started showing symptoms of mental illness and spent several years at Psychiatric Hospitals and was treated for paranoid schizophrenia. After 1970, he refused further medication and his condition improved. Thereafter he was never committed to Hospital again. He recovered gradually with the love and care of his divorced wife whom he remarried in 2001. He gradually returned to academic work by mid-1980s. He was awarded the 1994 Nobel Memorial Prize in Economic Sciences for the thesis, which earned him Ph.D. Degree in 1950. He was both a Mathematician and Economist. He made groundbreaking work in the area of real algebraic geometry. He published number of theorems to his credit and was awarded prestigious Abel Prize in 2015.

44. Therefore, it is clear from the earliest decision of the Supreme Court on this issue that not all Schizophrenics are characterized by the same intensity of the disease and that some patients recover, apparently completely.

22) In Beemireddy Lakshminarayana Reddy's case (3 supra), the High Court of Andhra Pradesh held at para No.16 as hereunder:

16. From the above decision it is clear that as there is no particular procedure prescribed under Order 32, Rule 15, the Court should prima facie satisfy that the plaintiff is of unsound mind before declaring him so and permitting the guardian to come on record.

23) Learned counsel for the respondent placed reliance on the decisions rendered in:

(1) Veer Pal Singh v. Secretary, Ministry of Defence4 (2) Marci Celine D'Souza and another v. Renie Fernandez and others5 (3) Bhogi Someswara Rao v. Koki Deepa and others6 (4) Duvvuri Papi Reddy and others v. Duvvuri Rami Reddy, being unsound by next friend and daughter P. Rangamma7 (5) Samala Krishnamurthy v. Samala Sasila Alias Susila and another8 and (6) Mrs. Clara Auroro de Branganca and others v. Mrs. Sylvia Angela Alvares, and others9.

24) In Veer Pal Singh's case (4 supra) the Hon'ble Supreme Court at para Nos.12, 13, 14 and 15 made detailed discussion with regard to "Schizophrenia" as hereunder:

12. In Merriam-Webster Dictionary "Schizophrenia"

has been described as a psychotic disorder characterized by loss of contact with the environment, by noticeable deterioration in the level of functioning in everyday life, and by disintegration of personality expressed as disorder of feeling, thought (as in delusions), perception (as in hallucinations), and behavior - called also dementia praecox; Schizophrenia is a chronic, severe, and disabling brain disorder that has affected people throughout history.

(2013) 8 Supreme Court Cases 83 5 1998 SCC OnLine Ker 16 6 Manu/AP/0369/2006 7 AIR 1969 AP 362 8 AIR 1983 AP 174 9 AIR 1985 Bom 372 14

13. National Institute of Mental Health, USA has described "Schizophrenia" in the following words:

"Schizophrenia is a chronic, severe, and disabling brain disorder that has affected people throughout history. People with the disorder may hear voices other people don't hear. They may believe other people are reading their minds, controlling their thoughts, or plotting to harm them. This can terrify people with the illness and make them withdrawn or extremely agitated. People with schizophrenia may not make sense when they talk. They may sit for hours without moving or talking. Sometimes people with schizophrenia seem perfectly fine until they talk about what they are really thinking. Families and society are affected by schizophrenia too. Many people with schizophrenia have difficulty holding a job or caring for themselves, so they rely on others for help. Treatment helps relieve many symptoms of schizophrenia, but most people who have the disorder cope with symptoms throughout their lives. However, many people with schizophrenia can lead rewarding and meaningful lives in their communities."

14. Some of the symptoms of schizophrenia are:

14.1 Positive symptoms: Positive symptoms are psychotic behaviors not seen in healthy people. People with positive symptoms often "lose touch" with reality.

These symptoms can come and go. Sometimes they are severe and at other times hardly noticeable, depending on whether the individual is receiving treatment. They include the following:

Hallucinations: - "Voices" are the most common type of hallucination in schizophrenia. Hallucinations include seeing people or objects that are not there, smelling odors that no one else detects, and feeling things like invisible fingers touching their bodies when no one is near.

Delusions: - The person believes delusions even after other people prove that the beliefs are not true or logical. They may also believe that people on television are directing special messages to them, or that radio stations are broadcasting their thoughts aloud to others. Sometimes they believe they are someone else, such as a famous historical figure. They may have paranoid delusions and believe that others are trying to harm them.

Thought disorders: - are unusual or dysfunctional ways of thinking. One form of thought disorder is called "disorganized thinking". This is when a person has trouble organizing his or her thoughts or connecting them logically, a person with a thought disorder might make up meaningless words, or "neologisms".

Movement disorders: - may appear as agitated body movements. A person with a movement disorder may repeat certain motions over and over. In the other extreme, a person may become catatonic. Catatonia is a state in which a person does not move and does not respond to others. Catatonia is rare today, but it was more common when treatment for schizophrenia was not available.

14.2 Negative symptoms Negative symptoms are associated with disruptions to normal emotions and behaviors. These symptoms are harder to recognize as part of the disorder and can be mistaken for depression or other conditions. These symptoms include the following:

(i) "Flat affect" (a person's face does not move or he or she talks in a dull or monotonous voice).

(ii) Lack of pleasure in everyday life.

(iii) Lack of ability to begin and sustain planned activities.

(iv) Speaking little, even when forced to interact.

15. In Modi's Medical Jurisprudence and Toxicology (24th Edn. 2011) the following varieties of Schizophrenia have been noticed:

Simple Schizophrenia: - The illness begins in early adolescence. There is a gradual loss of interest in the outside world, from which the person withdraws. There is an all round impairment of mental faculties and he emotionally becomes flat and apathetic. He loses interest in his best friends who are few in number and gives up his hobbies. He has conflicts about sex, particularly masturbation. He loses all ambition and drifts along in life, swelling the rank of chronically unemployed. Complete disintegration of personality does not occur, but when it does, it occurs after a number of years.

Hebephrenia: - Hebephrenia occurs at an earlier age than either the katatonic or the paranoid variety. Disordered thinking is the outstanding characteristic 17 of this kind of schizophrenia. There is great incoherence of thought, periods of wild excitement occur and there are illusions and hallucinations. Delusions which are bizarre in nature, are frequently present. Often, there is impulsive and senseless conduct as though in response to their hallucination or delusions. Ultimately the whole personality may completely disintegrate.

Katatonia: - Katatonia is the condition in which the period of excitement alternates with that of katatonic stupor. The patient is in a state of wild excitement, is destructive, violent and abusive. He may impulsively assault anyone without the slightest provocation. Homicidal or suicidal attempts may be made. Auditory hallucinations frequently occur, which may be responsible for their violent behaviour. Sometimes, they destroy themselves because they hear God' voice commanding them to destroy themselves. This phase may last from a few hours to a few days or weeks, followed by stage of stupor.

The katatonic stupor begins with a lack of interest, lack of concentration and general apathy. He is negative, refuses to take food or medicines and to carry out his daily routine activities like brushing his teeth, taking bath or change his clothes.... The activities are so very limited that he may confine himself in one place and assume one posture however uncomfortable, for hours together without getting fatigued. His face is expressionless and his gaze vacant.... They may understand clearly everything that is going on around them, and sometime without warning and without any apparent cause, they suddenly attack any person standing nearby.

Paranoid Schizophrenia, Paranoia and Paraphrenia - Paranoia is now regarded as a mild form of paranoid schizophrenia. The main characteristic of this illness is a well elaborated delusional system in a personality that is otherwise well preserved. The delusions are of a persecutory type. The true nature of the illness may go unrecognized for a long time because the personality is well preserved, and some of these paranoiacs may pass off as social reformers or founders of queer pseudo-religious sects. The classical picture is rare and generally takes a chronic course.

Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow which in the beginning, start as sounds or noises in the ears, but become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions.

Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of 19 delusions thus, may change from persecutory to grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and others.

The name paraphrenia has been given to those suffering from paranoid psychosis who, in spite of various hallucinations and more or less systemized delusions, retain their personality in a relatively intact state. Generally, paraphrenia begins later in life than the other paranoid psychosis.

Schizo Affective Psychosis: - Schizo affective psychosis is an atypical type of schizophrenia, in which there are moods or affect disturbances unlike other varieties of schizophrenia, where there is blunting or flattening of affect. Attacks of elation or depression, unmotivated rage, anxiety and panic occur in this form of schizophrenic illness.

Pseudo-Neurotic Schizophrenia: - Schizophrenia may start with overwhelmingly neurotic symptoms, which are so prominent that in the early stages, it may be diagnosed as neurosis. When schizophrenia begins in an obsessional personality, it may for a long time remain disguised as an apparently obsessional illness.

16. In F.C.Redlich and Daniel X. Freedman in their book titled "The Theory and Practice of Psychiatry" (1966 Edn.) observed:

"Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living..."(p. 252) Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to non- deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity . . . . (p. 465) (emphasis supplied)

25) In Marci Celine D'Souza's case (5 supra) the High Court of Kerala at para Nos.7, 8 held as hereunder:

7. Admittedly, the first plaintiff was 73 years of age on the date of filing of the suit viz., 14.10.1985. The learned trial judge directed the second plaintiff to produce the first plaintiff in court. The court recorded the following:

"1st plaintiff is produced by the 2nd plaintiff. It appears that he is weak. Court put questions to the 1st plaintiff, but he did not reply to the questions...."

On the above, the court found that the second plaintiff is entitled to prosecute the suit for and on behalf of the first plaintiff. It is true that the court has not made an elaborate enquiry as to whether the first plaintiff is competent to file the suit. The defendants have no case that the second plaintiff has any adverse interest against the first plaintiff. She has filed an affidavit as contemplated under Section 212 of the Civil Rules of Practice. Therefore, the court found that the second plaintiff was competent to represent the first plaintiff. The court is not expected to conduct an elaborate enquiry under Order XXXII Rule15 of the Code of Civil Procedure. Before a next friend can represent a person in-capable of protecting his rights it is not necessary that there should be a preliminary enquiry and a finding that person by reason of unsoundness of mind or mental infirmity is incapable of protecting his interests. All that is needed is that there must be some prima facie proof such as to satisfy the court that the person was by reason of infirmity incapable of protecting his interest, because an order permitting the next friend to represent such a person is not final. It is always open to the defendants to take out another application to have the order revoked when the court can fully go into the matter. The court below has raised an issue in this case. It is admitted by both the parties, that the first plaintiff was sick and was undergoing treatment. PW- 2, who was examined in this case, is a Cardiologist attached to Benzigar Hospital, Kollam. He has 22 deposed that he has treated the deceased plaintiff as an inpatient from 27.4.1984 to 16.5.1984 and 22.5.1984 to 10.7.1984. He issued Ext. All medical certificate. According to him, the first plaintiff was suffering from hypertension and cerebral vascular accident, right hemplegia and asphasia. During hospitalisation, he showed slight improvement by way of recovery of paralysis from right side. But he was disoriented and dysphasic. He was discharged in that condition on 16.5.1984. He was readmitted on 22.5.1984 with sub acute intestinal obstruction and was in the hospital till' 10.7.1984. During this period of stay also he was disoriented and dysphasic and hence was advised to go to a neurologist for further treatment. According to him, the first plaintiff was not able to speak. The plaintiff also relied on Ext. A 14 letter dated 8.6.1984 issued by DW1. It was a letter written by DW-1 to the second defendant, wherein it is stated that the first plaintiff s condition is very bad, that he simply lies in bed and rolls with pain, that he lost control over his kidneys, that everything is done unconsciously and that his speech is not clearly. PW- 5 is the Professor and Head of Neurology Department. He has deposed that the first plaintiff was under his treatment from July, 1984 onwards. According to him, his blood circulation in the brain was defective; the first plaintiff, who is now no more, developed stroke, as a result of which speech problem was caused to him. The first plaintiff was also not able to move alone. He proved Exts. A12, A12(a) and A12(b). Ext. A12 is of the year 1985. He states that since July 1984, he was treated for difuse cerebral artherosclerosis with dementia and dysarthria. Cerebral arteriocleros is a syndrome characterised by 23 progressive memory loss, confusion and child like behaviour. Dementia is an irreversible organic brain disease causing memory and personality disorders, deterioration in personal care, impaired cognitive ability and disorientation. Dysarthria causes neuromuscular disorder affecting the actual formation and articulation of words. All these go to show that the first plaintiff was mentally infirm and as such he was not able to protect his interests. I do not find anything wrong in the finding of the courts below, regarding the mental capacity of the deceased first plaintiff. Therefore, the finding on issue No. 2 is upheld.

8. Since the defendants have no case that the second plaintiff has any adverse interest against the first plaintiff, the finding on issue No. 3 regarding the question whether the 2nd plaintiff is the proper person to act as next friend is also upheld.

26) In Bhogi Someswara Rao's case (6 supra) the High Court of Andhra Pradesh at para Nos.5, 6, 7 and 8 held as hereunder:

5. Order 32 permits a Civil Court to appoint guardians for minors and persons of unsound mind, in suits filed by, or against them. Rule 3 deals with the procedure for appointment of guardian, to defend the proceedings. In the instant case, such application was filed by the mother of the 1st defendant in the suit, the petitioner herein. It was pleaded that the petitioner is of unsound mind, and that he is not in a position to take any decision by himself.

6. For the most part of it, appointment of a guardian for a party in a civil proceedings, is a matter, squarely between the court and the concerned person. It is ultimately the satisfaction of the court, that would be conclusive.

7. Apart from pleading that the petitioner herein is of unsound mind, this mother placed before the trial court, the certified copy of the written-statement filed by the 5th respondent herein in O.S.No.8 of 2001. As mentioned earlier, that suit was filed by the petitioner and the 5th respondent, against respondents 1 to 4 herein, claiming damages, on account of breakdown of marriage. To justify their action, resulting in breakdown of marriage the respondents pleaded that the petitioner is of "peculiar character and unstable nature". Such a statement having come from the respondents themselves, they should not have resisted the present application, at all. In addition to the certified copy of the said written-statement, the mother of the petitioner has also file certain documents, to prove that the petitioner was undergoing treatment with a Psychiatrist.

8. A perusal of the order under revision discloses that the trial court did not think it fit, to personally examine the petitioner. Having referred to certain judgments, which in fact mandate that the court must conduct enquiry into the alleged mental infirmity of a person, it proceeded to declare that it is not necessary to appoint a guardian for the petitioner. The view taken by the trial court cannot be sustained, either on facts or in law. The only factor that weighed with the trial court was, the opposition and resistance offered 25 by the respondents, and it lost sight of the fact that it was the respondents themselves, who branded the petitioner as a person of unsound mind and peculiar character. The trial court ought not to have ignored the fact that the petitioner is undergoing treatment with a psychiatrist. At any rate, no prejudice can be said to have been suffered by the respondents, in case the petitioner is kept under the guardianship of his mother.

27) In Duvvuri Papi Reddy's case (7 supra) the High Court of Andhra Pradesh at para No.15 held as hereunder:

15. Before or after any such inquiry is made, the authorities lay down the procedure as to how the applications under Order XXXII, whether they fall under Rule 1 or Rule 15, should be disposed of. When an application is filed on behalf of the next friend alleging that the plaintiff is either a minor or is of unsound mind along with the suit which the next friend has instituted in the name of the minor or the insane, ordinarily notice should be given to the defendants to find out whether they desire to contest the application. In some cases, however, it is held that as ex parte order can be passed on such an application if the Court is satisfied that prima facie the plaintiff is a minor or insane and as such incapable of looking after his interests for appointment of a next friends. Such an order obviously would not be final. Since the order in such a case would be passed behind the back of the defendant, it is always open to him to question the correctness of the order. If he fails to question the 26 correctness of such an order during the trial of the suit, he would not be permitted to raise the objection that the plaintiff was not minor or insane at the time when the suit was instituted or that he was incapable of protecting his interests, for the first time in appeal.

If the defendant, however, chooses to dispute correctness of that order, he can ask the trial Court which had passed the ex parte order to make the necessary inquiry into the question whether the allegations made by the next friend are correct. The Court is bound to reopen the question and make a proper inquiry in that behalf. In such a case, after inquiry, if it found that the plaintiff was minor or insane and was incapable of looking after his interests on the date when the suit was instituted, the Court can permit the guardian or the next friend to represent him, proper orders in that behalf should be passed. When the defendant raises an objection and questions the allegations made in the petition that the plaintiff is minor or insane and is therefore incapable of looking after his interests and if no ex parte order is passed or even if it is passed and is questioned by the defendant, this question has to be tried as a preliminary issue before any other matter is considered or disposed of in the suit, and for the purpose of such an inquiry, the Court will have to make tentative order either with the consent of the defendant or on prima facie material before it allowing the guardian or the next friend to continue to represent the plaintiff until the inquiry is over. Any decision given on such an inquiry would be binding upon the parties in so far as the trial Court is concerned. But when ultimately the matter goes in appeal as consequence of the trial of the suit, in my 27 view, it is open to appellate Court to see whether the order appointing the next friend or the guardian was validly made and in that connection the appellate Court can certainly go into the question whether the plaintiff on the date when the suit was instituted was minor or insane and was consequently incapable of protecting his interests.

28) In Samala Krishnamurthy's case (8 supra) the High Court of Andhra Pradesh at para No.9 held as hereunder:

9. A plain reading of this Rule leaves no doubt that the Court has to conduct an enquiry before permitting the next friend to institute the suit. But the method and manner in which the enquiry has to be conducted is not indicated in the rule. In the present case, the suit was filed on 3-7-1974. The application under Order XXXII, Rule 15 was supported by the affidavit of the next friend wherein it was stated that the 1st plaintiff was of unsound mind. The record discloses that affidavits of three other persons belonging to the same village were also filed along with the petition. The learned district Munsif directed the suit to be registered on 6-7-1974. The order also shows that the counsel was heard. Apparently, the trial Court was satisfied with the material before it that the 1st plaintiff was of unsound mind. Otherwise, it would not have directed the suit to be registered. In the absence of any express provision in the Rule as to the nature of the enquiry that should be conducted, it is possible to say that the procedure adopted by the trial Court is not in conformity with the Rule. All that the said rule contemplates is that the Court should be 28 prima facie satisfied that the plaintiff is of unsound mind. If the Court is not satisfied with the averments in the petition, it may call upon the party to examine witnesses in support of the allegations. Even on the basis of affidavits, the Court can form an opinion and come to the conclusion that it is a fit case for permitting the next friend to institute the suit. One such an order is passed, it is open to the defendant to apply to the Court by way of an independent application for revocation of that order. In Govindayya v. Ramamurthy, AIR 1941 Mad 524 a Division Bench of the Madras High Court consisting of Venkataramana Rao and Horwill, JJ. Summarised the scope of Order XXXII, Rule 15 and observed that the Rule does not contemplate that there must be a preliminary enquiry and a finding that a person by reason of unsoundness of mind was incapable of protecting his interests; and that all that is needed is that there should be some prima facie proof to satisfy the Court that the person by reason of unsoundness of mind or mental infirmity is in capable of protecting his interests, and that it is open to the defendant to take out an independent application to have the said order revoked. Their lordships went to the extent of saying that when once the Court permits the next friend to sue on behalf of such a person, it is not open to raise an independent issue in the trial as to competency of the next friend to represent him in the suit. In this case the petition was allowed on the basis of an affidavit filed by the party. But it is submitted by Mr. Ranganadhan that the Madras High Court took a slightly different view in Rangaswami Reddy v. Gopalaswami Reddiar (1978) 2 mad LJ (High Court)

564. In that case it was held that the enquiry under 29 Order 32, Rule 15 is mandatory and where no such enquiry is conducted the suit itself is not maintainable. We do not think that this decision lays anything contrary to the rule enunciated in Govindayya v. Ramamurthy AIR 1941 Mad 524. As observed supra there is no gainsaying the fact that an enquiry is a must, under clause 15 of Order 32 because a party is adjudged as an insane person which has some serious consequences. But what is the type of enquiry that is contemplated under Order 32, Rule 15 is a matter to be considered. Rangaswami Reddi v. Gopalaswami Reddiar (1978) 2 Mad LJ (High Court) 564 is a case where no enquiry was conducted at all. Immediately after an application is filed for permission to appoint a next friend the defendants took notice and opposed the petition. Without any enquiry whatsoever the petition was ordered. Later the defendants took out an independent application to revoke the permission already granted. There appears to be no enquiry on that application also. In these circumstances it was held that the suit was not maintainable, in fact the Division Bench of the Madras High Court quoted with approval the earlier decision of the Madras High Court in Govindayya v. Ramamurthy AIR 1941 Mad 524. We are therefore unable to accept the contention of Mr. Ranganadhan that the later Bench of the Madras High Court took a contrary view.

29) In Mrs. Clara Auroro de Branganca's case (9 supra) the High Court of Bombay at para Nos.13 and 15 held as hereunder:

(13) That was a case where a suit had been filed and the plaintiff had been described in the plaint as a major person but of unsound mind, or a person incapable of taking care of his affairs and, therefore, had sued through a next friend, his wife. While opposing the suit on merits, the defendant had alleged, inter alia, in his written statement, that it was not true that the plaintiff was a person incapable of taking care of his own affairs and, as such, he challenged the presentation of the plaint as improper.

The learned Civil Judge, before whom the suit was pending, framed an Issue to determine whether the plaint has been properly presented by the plaintiff and holding that the presentation was not proper, dismissed the suit. This judgment of the learned Civil Judge was challenged in appeal before the High Court and, inter alia, it had been contended that the procedure followed by the learned trial Judge was not correct. These submissions of the appellant found favour with the Division Bench and it was held that the procedure adopted by the said Judge has no warrant in law. Therefore, the Division Bench felt it necessary to lay down some principles in order to serve as a guidance to the lower Courts as to how a Court shall deal with a suit presented by a next friend alleging the plaintiff to be a person of unsound mind. Therefore, the Division Bench observed that when the plaint is being examined for the purposes of admission, if it contains a statement as required by Cl. (d) of R. 1 of O. 7 that the plaintiff is a person of unsound mind and that the next friend is suing on his behalf, the Court must at once hold an inquiry for the purpose of recording a finding that the plaintiff is a person of unsound mind or mentally so infirm and 31 incapable of protecting his own interests. It was further observed that 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, for the provisions of R. 15 of O. 32 make it possible for the next friend to sue on behalf of an adult person as his next friend only when the person is so adjudged by a Court of competent jurisdiction or if not so adjudged is found by the Court on inquiry to be so. The Division Bench, therefore, observed that this is the foundation, prima facie, for a next friend to avail and proceed with the suit, such inquiry being 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. At no stage of the aforesaid judgment, the Division Bench dealt with the question fallen for our consideration, namely whether if an inquiry is held, though not at the time of filing the suit, and it is found that the plaintiff was actually of unsound mind at the time of the institution thereof, the non-holding of the inquiry at the initial stage vitiates the suit. The Division Bench, as already said, has merely laid down the procedure that ordinarily has to be followed when a suit is filed by a person said to be of unsound mind, and thus, the said Division Bench decision is not an authority for the proposition that a suit filed by a person through a next friend is vitiated if inquiry under O. 32, R. 15, C. P. C. is not held at the time of the institution thereof. The said decision constitutes merely an authority for the proposition that an inquiry has necessarily to be held by the Court in order to record a finding as to whether or not a plaintiff who had sued through a next friend is of unsound mind.

(15) O. 32, R. 1 C. P. C. provides that a minor may sue by a next friend and every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend. This provision is applicable to persons of unsound mind by virtue of R. 15 which provides that Rr. 1 to 14, except R. 2A, shall as 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 inquiry to be incapable by reason of any mental infirmity of protecting their interests while suing or being sued. R. 15, therefore, requires only that a suit by a person of unsound mind should be instituted in his name by a next friend. It is no doubt true that the rule speaks of persons who had been adjudged as being of unsound mind or if not so adjudged, are found by the Court, on inquiry, to be incapable by reason of any mental infirmity of protecting their interests when suing or being sued. The rule, however, clearly lays down that the provisions of Rr. 1 to 14 apply to persons adjudged to be of unsound mind or found to be incapable of protecting their interests by reasons of any mental infirmity before or during the pendency of the suit. Therefore, the requirement of holding an inquiry in such a case is, under the rule, to be complied with either before or during the pendency of the suit. An appeal, as it is well settled, is a continuation of the suit, and hence, since in the present case an inquiry was held and it was found that the respondents Joseph Salvador and Bridget were of unsound mind, it has necessarily to be held that the requirements of R. 15 of O. 32 had been duly 33 satisfied. We may also point out that what is relevant is that at the time of the institution of the suit, a person is of unsound mind and in such cases, the suit can be instituted by such person only through a next friend. The need of a next friend is not a result or a consequence of the finding given by the Court that a person is of unsound mind, but it is a necessity which arises in view of the mental infirmity itself. What the law requires is that once a plaintiff is of unsound mind, a next friend should intervene on his behalf. In addition, as rightly pointed out by the learned counsel for the respondents, if at all inquiry was to be held at the time of the filing of the suit, the non-holding thereof at that time constitutes, at the most, an irregularity which, being a question merely touching the procedure, is curable. We are fortified in this view by the decisions of the Calcutta High Court in Keshav Deo v. Jagadish Prasad, AIR 1973 Cal 83 and of our High Court in Gulabchand Nanulal v. Fulchand Hirachand, AIR 1959 Bom 232. In the circumstances, therefore, in our view, the plaint as instituted cannot be held to be defective only because no inquiry under O. 32, R. 15 C. P. C. has been held at the time of the institution of the suit.

30) At this stage, it is appropriate to extract the Order XXXII Rule 15 of Code of Civil Procedure as hereunder:

15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind.

"Rules 1 to 14 (except rule 2A) 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, 34 are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued".

31) On careful consideration of the decisions relied by both counsel and procedure prescribed under Order 32, Rule 15 of C.P.C., it is clear that the Court should satisfy on enquiry that the plaintiff is of unsound mind before declaring him/her so and permitting the guardian to come on record. As such, there is some substance in the contention of the learned counsel for the petitioner that the Court below has to call and see the person and examine her to clear doubt about the health condition. Therefore, this Court is of the opinion that the Court below committed mistake in not examining the mother of the petitioner personally before appointing the petitioner as guardian, next friend.

32) Here it has to be borne in mind that the enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers as held in Duvvuri Rami Reddi's case (1 supra). In the present case, this procedure was not followed and the Court below failed to atleast see the mother of the petitioner. As such, this Court is of the opinion that the Court below committed mistake in not examining the mother of the petitioner personally before appointing the petitioner as guardian, next friend.

33) As per the recitals of the plaint in O.S.No.364 of 2012 in which it was categorically established that the mother of petitioner was residing at Rajamahendravaram independently and the petitioner is residing at Undi, Bheemavaram Mandal with her husband and the mother of petitioner was leading her life alone at Rajamahendravaram without the assistance of the petitioner, who is only daughter to her. It proves that the mother of petitioner is not suffering with such serious health condition, as it is considered by the Court below.

34) As per the evidence of PW.1 coupled with Ex.A.1 also between 19.01.2005 to 19.03.2005, the mother of the petitioner was in normal health condition and the Doctor who treated Muthyalamma, did not find any abnormalities in her mental status. The Doctor also opined that when the condition is normal, she is capable of entering into the contracts like sale etc. In view of the same, it can be concluded that at the time of execution of document on 19.02.2005, the mother of the petitioner is in sound mind though she is taking some treatment from PW.1. As and when, she was sound mind and she is normal and is capable of entering into contracts like sale etc., the execution of document on 19.02.2005 cannot be said that it was obtained by fraud, misrepresentation and undue influence.

35) It is further to be noted that as and when the Court below noticed that there is no record to show that the mental health condition of the Muthyalamma as on the date of the order, the Court below ought not to have concluded that Muthyalamma is suffering from unsoundness of mind and ought not to have appointed the petitioner as guardian, next friend.

36) For the aforementioned reasons, this Court holds that the finding of the Court below that the Muthyalamma is suffering from unsoundness of mind and a guardian, her daughter Maddila Varalakshmi can be appointed to defend herself is unsustainable and liable to be set aside.

37) Accordingly, these Civil Revision Petitions are allowed and the common order, dated 06.06.2019 in I.A.No.736 of 2012 in O.S.No.364 of 2012 and I.A.No.772 of 2013 in O.S.No.298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram is hereby set aside. There is no order as to costs.

As a sequel, miscellaneous petitions, if any, pending in this petition shall stand closed.

______________________ JUSTICE BATTU DEVANAND Dt. 15.12.2020 Note: Issue CC in two days.

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