Allahabad High Court
Arjun vs Dy. Director Of Consolidation And ... on 20 September, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- WRIT - B No. - 2388 of 1999 Petitioner :- Arjun Respondent :- Dy. Director Of Consolidation And Others Counsel for Petitioner :- Anoop Kumar Srivastava,A.C.Srivastava,Afshan Shafaut,B.N. Mishra,Mohammad Mustafa Khan,R.K.Chitragupt Counsel for Respondent :- C.S.C.,Ajay Kr.Srivastava,Amit Malik,B.Malik,J.P. Mishra,S.K. Srivastava Hon'ble J.J. Munir,J.
1. Records received from the Court below that were ordered to be kept in a sealed cover by the Office vide order dated 01.08.2019 have been laid open by the Bench Secretary, under the direction of this Court.
2. Heard Sri Kamleshwar Singh holding brief of Sri M.M.Khan, learned counsel for the petitioner, Sri Ajay Kumar Srivastava, learned counsel appearing on behalf of respondent No. 3. No one appears on behalf of the respondent no. 4.
3. There is an office report dated 18.04.2013 that notice issued to respondent No. 4 by registered post has been received back with a remark that he has refused to accept notice. Accordingly, service upon respondent No. 4 is held sufficient.
4. This writ petition has been filed by Arjun, a minor at the time when these proceedings were instituted, who is a maternal grandson of one Smt. Raghubar Dei and represents her interest in agricultural land comprised of Khata No. 53 of Village Jakhaulia Tola Bheriyahwa, Tappa Dabra, Pargana Naugarh, Tehsil Shohratgarh, District Basti (now Siddharth Nagar). The Khata aforesaid has a total of 13 plots admeasuring 3-11-2-2. The said Khata was recorded during the Fasli year 1375 to 1377 in the name of respondent No. 3, Shyam Lal s/o Badlu and Jagarnath s/o Hari both natives of the village under reference. Thus, Shaym Lal and Jagarnath were co-sharers in Khata No. 53, last mentioned, which is hereinafter referred to as the 'land in dispute'.
5. It appears that an application under Section 12 of the U.P. Consolidation of Holdings Act (for short the 'Act') was made by Shyamlal and respondent no. 4 in the year 1981, on the basis of an unregistered will dated 20.06.1980, said to be executed by Jagarnath in favour of respondent Nos. 3 and 4. By the said will and testament, Jagarnath bequeathed his share in the land in dispute in favour of Shyam Lal and Bakelal, respondents Nos. 3 and 4 here. The said application was made on the basis of the will last mentioned after the death of Jagarnath, urging that succession opened out in accordance with the aforesaid will, which is the last will and testament of the late Jagarnath, who died in the year 1980. The aforesaid application was contested by Raghubar Dei, widow of Jagarnath on the ground that Jagarnath was a lunatic, and, therefore, lacked legal competence to make a disposition of his property by devising a will. The case aforesaid that commenced on the application of respondent Nos. 3 and 4 was numbered as Case No. 701+702 of 1985. Pending the said proceedings under Section 12, it appears that on 06.02.1986, a compromise was filed, subscribed to by respondent Nos. 3 and 4, Shyam Lal and Bakey Lal on one hand and Smt. Raghubar Dei, on the other. The compromise aforesaid was verified by the Consolidation Officer on 06.02.1986, after due identification of Smt. Raghubar Dei by Sri T.N. Mishra, Advocate and respondent Nos. 3 and 4 by Sri Ghanshyam Tripathi, Advocate. Both parties to the compromise had affixed their thumb impressions that were identified by their respective Counsel. The proceedings commenced on the application under Section 12, last mentioned, were disposed of in terms of the compromise aforesaid, also vide order dated 06.02.1986.
6. A recall application was filed on behalf of one Smt. Hirauni, a daughter of Smt. Raghubar Dei, seeking to recall the order dated 07.08.1986, passed by the Consolidation Officer. The said application dated 07.08.1986, made by Smt. Hirauni, was brought on the ground that Raghubar Dei was an idiot, who did not possess a sound mental faculty to decide upon her interest. It was also alleged that Raghubar Dei had been inflicted with paralysis. She never appeared before the Court to verify the compromise or did she subscribe to it. It was alleged in paragraph 7 of the application that in order to fraudulently deprive Raghubar Dei of her property, the 3rd and 4th respondent set up an impostor in her place, who was identified as Raghubar Dei. It was the impostor who verified the compromise dated 06.02.1986, and, on that basis the order of 06.02.1986, was passed. Various other subsidiary contentions in aid of the case that the compromise was fraudulent, set out in the application, were also urged.
7. It was also pointed out on the basis of averments in paragraph 5 and 6 of the writ petition that during pendency of the case under Section 12 of the Act, an application was moved by Raghubar Dei on 26.10.1983, stating therein that she is suffering from paralysis and not in a position to contest the case. A copy of the said application is on record as Annexure 2 to this petition. It has been pointed out by the learned counsel for the petitioner that in response to the aforesaid application dated 26.10.1983, made on behalf of Raghubar Dei, a counter affidavit was filed by respondent No. 3, Shyam Lal, who has been described there as Shyam Lal @ Ram Lal, where in paragraph 2 he said that Smt. Raghubar Dei was an idiot and a lunatic. A copy of the said counter affidavit is on record as Annexure 3 to this writ petition. In paragraph 4 of the counter affidavit aforesaid, the factum that the application dated 26.10.1983 was made, is not denied, but it is averred that this application was not filed by Smt. Raghubar Dei. It is averred that on her behalf one Bindeshwari s/o Kamal filed this application (described as an objection).
8. The facts regarding her ailment mentioned by Smt. Raghubar Dei in her application dated 26.10.1983, with reference to the contents of which averment in paragraph 5 of the writ petition have been made, are not specifically denied in paragraph No. 7 of the counter affidavit filed here. It has also not been denied in paragraph No. 7 that the counter affidavit filed before the Consolidation Officer, in response to the application dated 26.10.1983, does not carry those averments, where it has been acknowledged that Raghubar Dei is an idiot and lunatic. It has also been brought to notice of this Court that pending proceedings under Section 12 of the Act, and much before the compromise dated 06.02.1986 was recorded, an application dated 04.02.1986 was filed by Bankey Lal, seeking to withdraw from the case by deleting his name from the array of parties. A copy of the said application is annexed as Annexure 4 to the writ petition. The assertions in paragraph 6 of the writ petition have not been denied in paragraph 8 of the counter affidavit filed by respondent no. 3, where it is said that the contents of paragraph 6 of the writ petition need no reply.
9. The Consolidation Officer, after hearing parties, allowed the recall application made on behalf of Smt. Hirauni vide order dated 13.01.1993, setting aside the order dated 06.02.1986, and restoring the case brought under Section 12 of the Act to its original file and number. Aggrieved by the aforesaid order of the Consolidation Officer, respondent Nos. 3 and 4 filed an Appeal to the Settlement Officer of Consolidation, being Appeal No. 831. The Settlement Officer of Consolidation proceeded to dismiss the Appeal and affirmed the order of the Consolidation Officer dated 23.01.1993, setting aside the earlier order dated 06.02.1986, passed on compromise of that date between respondent Nos. 3 and 4, and Smt. Raghubar Dei.
10. Aggrieved by the order dated 01.04.1998 passed by the Settlement Officer of Consolidation, Siddharth Nagar in Appeal No. 831 and the order of the Consolidation Officer upheld by him, the third respondent alone carried Revision No. 1443 of 1998 to the Deputy Director of Consolidation, Siddharth Nagar. The Deputy Director of Consolidation, Siddharth Nagar, by means of his judgment and order dated 19.12.1998 allowed the Revision setting aside the order of the Consolidation Officer dated 13.01.1986, and, that of the Settlement Officer of Consolidation dated 01.04.1998, and restored the Consolidation Officer's order dated 06.02.1986, founded on compromise. Aggrieved by the order of the Deputy Director of Consolidation, the petitioner, who is a maternal grandson of Raghubar Dei, filed this writ petition, while still a minor through his father and next friend, Jhhinkan, asking this Court to set aside the orders of the Deputy Director of Consolidation, dated 19.12.1998, and restore those passed by the Settlement Officer of Consolidation and the Consolidation Officer.
11. A perusal of the impugned order passed by the Deputy Director of Consolidation shows that he has recorded a finding to the effect that the order dated 06.02.1986, cannot be dubbed as ex parte, since it was passed after verification by both parties and the identification of those parties by their learned Counsel. The Deputy Direction of Consolidation, therefore, concluded that the Consolidation Officer has committed a manifest error in setting aside the said order dubbing it as one made ex parte. He held that there was no justification to recall the order dated 06.02.1986. There is also a remark in the impugned order passed by the Deputy Director of Consolidation dated 19.12.1998, to the effect that the finding of the Settlement Officer of Consolidation that Smt. Raghubar Dei was a lunatic is illegal, inasmuch as no one can be held to be a lunatic for someone's saying, unless there be a valid certification by a competent doctor. It is only on the basis of a doctor's certificate and on his expert opinion that the Court may hold a person to be a lunatic. The Deputy Director of Consolidation has further recorded that there is no material on record in the form of any medical certification to show that Raghubar Dei was, in fact, a lunatic. It is for this reason that the Deputy Director of Consolidation has discarded this finding recorded by the Settlement Officer of Consolidation.
12. Sri Kamleshwar Singh, learned counsel for the petitioner was at pains to point out a number of features of the case which, according to him, decisively show that the compromise recorded on 08.02.1986 was the result of a fraud. He has, in fact, taken the Court through the findings recorded by the Settlement Officer of Consolidation in the order dated 13.01.1993, where it is said that Raghubar Dei was sought to be summoned by Shyam Lal during the course of proceedings of setting aside the compromise on 04.10.1983. She was sought to be summoned on 23.09.1985, and, again through an application on 23.11.1985. However, an affidavit was filed on 24.10.1983, on behalf of Raghubar Dei by one Bindeshwari, saying that Raghubar Dei may not be summoned. On the said prayer, an order was passed that the evidence of Raghubar Dei be recorded on 23.11.1983.
13. It is said that from these facts it is clear that according to the Consolidation Officer that Raghubar Dai never came forward to testify in Court and it was Smt. Hirauni, her sole heir and legal representative, who prosecuted the restoration application on her behalf. According to Sri Kamleshwar Singh, learned counsel for the petitioner, the aforesaid facts show that Smt. Raghubar Dei was not in a position to appear in Court, and it was on that account that despite the third respondent seeking to summon her in proceedings to set aside the compromise, she never appeared. Instead, the matter was pursued by her daughter, Smt. Hirauni.
14. A perusal of the order of the Consolidation Officer further shows that he has recorded a finding that the Vakalatnama, paper Nos.38-Aa, 44Aa, 44/2, show that all the three Vakalatnamas are filled up in the same hand, and each of these Vakalatnama are affixed with adhesive Court fee stamps whereon the name of Sri Ghanshyam Tripathi, Advocate is endorsed. It has also been recorded that these Court fee stamps bear the same date i.e. 22.01.1986. The Consolidation Officer, upon these features noticed by him in the Vakalatnama numbering three and the Court fee stamps on each of them, has drawn a conclusion that the Vakalatnama bearing Raghubar Dei's signatures are not her's, or that of her Counsel, but that these Vakalatnamas bear the signatures of the learned Counsel representing Bankey Lal, respondent No.4. The Consolidation Officer has further concluded from these facts that the compromise is vitiated, because there is one learned Counsel appearing for both sides, who has identified both and appeared during the compromise proceedings. The Consolidation Officer has held in conclusion that the compromise cannot be attributed to Raghubar Dei, which he has chosen to describe as ex parte. The Consolidation Officer with these conclusions drawn has proceeded to set aside the compromise dated 06.02.1986, and, directed the case to be restored to its original number.
15. Sri Kamleshwar Singh, has submitted that these findings recorded by the Consolidation Officer, run into meticulous detail and are pure findings of fact that cannot be disturbed. He has further argued that once the compromise has been held to be vitiated, or under a grave cloud of doubt, acting upon it is a denial of the parties right to suit their dispute on merits. On the other hand, learned counsel appearing for respondent No.3, submits that the findings are manifestly illegal and perverse. The Consolidation Officer and the Settlement Officer have looked into absolutely irrelevant evidence and drawn perverse conclusion from that evidence. The compromise is one flawlessly recorded after due identification of parties. He has further submitted that once a compromise has been recorded, it is the duty of the Court to give effect to it and not to scuttle it because at a later stage, one of the parties to the compromise turns around and has a change of mind.
16. The Court has considered the rival submissions. It is true that there is no evidence on record to show that Raghubar Dei, was a lunatic or idiot. There is an allegation in a certain application dated 26.10.1983, made on behalf of Raghubar Dei that she is suffering from paralysis that renders her not in a position to contest the case, but in the counter affidavit to this application on behalf of the respondent No.3, it has been averred that Raghubar Dei is an idiot and lunatic. The fact, however, remains that for the saying of anyone, including the petitioner, whose interest would be prejudicially affected, Raghubhar Dei cannot be held to be a lunatic; Raghubar Dei cannot be held to be so, unless there is some cogent evidence that has to be in the nature of some medical evidence, or evidence aliundi forthcoming in an enquiry made for the purpose by the Court. This Court cannot miss noticing the fact that during the entire course of this litigation, there appears to be a strain of allegations amongst family members of Raghubar Dei, alleging one or the other to be a lunatic. Raghubar Dei had claimed that her husband, Jagarnath was a lunatic and on her statement, an endorsement appears to have been made in the Khatauni to that effect under an order of the Assistant Consolidation Officer, apparently, also without holding enquiry into the medical status of Jagarnath. There is a presumption that a man is in possession of good sense unless by good evidence to the contrary it is established that he is insane or a lunatic, or as it is called mentally challenged. There is not an iota of evidence on record, to show anything about Raghubar Dei that she was a lunatic. There is no finding recorded in any enquiry held for the purpose by the Consolidation Officer, letting in evidence and concluding to that effect on its basis. In the absence of a clear finding after consideration of relevant evidence, Raghubar Dei could not be casually held to be a lunatic or presumed to be a lunatic, if this Court may say so.
17. The question whether a person is a lunatic or idiot may arise in a procedural context or as a fact in issue in the cause, or both. It can arise in a procedural context where nothing turns on the issue so far as the rights of parties involved in the cause are concerned, but one of the parties is claimed or shown to be of unsound mind or to be suffering from such mental infirmity that he/she is incapable of protecting his/her interest in the cause. To that end, the Code of Civil Procedure makes provision by applying Rules 1 to 14 (except Rule 2-A) of Order XXXII CPC which contemplate prosecution or defence, as the case may be, of a cause through a next friend or a guardian ad litem. In a case, where unsoundness of mind and impairment of mental faculty is a fact in issue in the cause, the Court of course is required to inquire into it. In either case, that is to say, for the limited procedural purposes of conduct of proceedings or for the determination of a fact in issue, unsoundness of mind or the impairment of mental faculty cannot be decided on mere concessions or admissions, where the fact is alleged by one party and accepted by the other, albeit to the disadvantage of the party admitting. This is so because unsoundness of mind or impairment of mental faculty to an extent as would render actions of a person non est, or take away his legal capacity to pursue or defend proceedings is a fact about the mental health or status of a person, upon which depends his/her legal status; and, the consequence of that status would decisively bear upon his/her rights or the rights of the other side involved in proceedings, or the right of such a person to prosecute or defend legal proceedings. It is, thus, for the Court to inquire and determine on the evidence by its judgment, whether a person alleged to be of unsound mind or impaired mental faculty, is in fact so. It would depend upon the requirement of the law, in the context of which the question arises, that a person is impaired in his mental faculty of a kind and degree where the Court may pronounce him to be so.
18. It must be remarked here that provision of Order XXXII Rule 15 of the Code of Civil Procedure may not be applicable proprio vigore but the rule there embodies a sound principle to go by, in all proceedings that are civil in nature, in whatever jurisdiction they arise. The question arose before their Lordships of the Supreme Court in Sharda vs. Dharmpal, (2003) 4 SCC 493, where it was a matrimonial cause under the Hindu Marriage Act. In the said case in a mixed action claiming annulment of marriage under Section 12(1)(b) and a decree of divorce under Section 13(1)(iii), the husband had petitioned the District Judge. The husband had claimed annulment or a decree of divorce on the ground of the wife's unsoundness of mind of an incurable kind. Along with the petition he filed an application seeking directions for the wife to be medically examined. The wife objected to the application on ground that the Court had no jurisdiction to issue that kind of a direction. The application was allowed by the learned District Judge and a Revision from that order was dismissed by the High Court. There were wider issues of personal liberty and privacy raised besides, the power of a Court seized of a matrimonial cause to order a party to undergo medical examination. It was in the context of the last mentioned question about the power of the Court to order a party to undergo medical examination, that their Lordships examined and answered the question as to how a Court may pronounce a person to be mentally ill or otherwise.
19. In Sharda (supra) dealing with the power and obligation of the Court to determine the question of unsoundness of mind or mental illness of a party to the lis it was held:
"50. We wish to point out that the question as to whether a person is mentally ill or not although may be a subject-matter of litigation, the court having regard to the provisions contained in Order 32 Rule 15 of the Code of Civil Procedure, Section 41 of the Indian Lunacy Act as also for the purpose of judging his competence to examine as a witness may issue requisite directions. It is, therefore, not correct to contend that for the aforementioned purposes the court has no power at all. The prime concern of the court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to a test which would invade his right of privacy and may in some case amount to battery; but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests.
51. If the court for the purpose envisaged under Order 32 Rule 15 of the Code of Civil Procedure or Section 41 of the Indian Lunacy Act can do it suo motu, there is no reason why it cannot do so on an application filed by a party to the marriage.
52. Even otherwise the court may issue an appropriate direction so as to satisfy itself as to whether apart from treatment he requires adequate protection inter alia by way of legal aid so that he may not be subject to an unjust order because of his incapacity. Keeping in view of the fact that in a case of mental illness the court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the court may take recourse to such a procedure even at the instance of the party to the lis."
20. The question also fell for consideration of the Andhra Pradesh High Court in Leelason Breweries Ltd., Bhopal vs. Beemireddy Lakshmi-narayana Reddy being Mentally Unsound, 2001 SCC OnLine AP 892 : AIR 2002 AP 253, where in a purely procedural context of pursuing the suit by the plaintiff, the question arose in the context of the Court finding the plaintiff to be of unsound mind, on an inquiry done. The Court did not permit the plaintiff's proposed next friend to act in the matter and instead, appointed his wife to do that. Challenging the order made by the Trial Judge on the application of the proposed next friend declining it and instead permitting the wife to pursue the suit, the proposed next friend applied in revision to the High Court. In the context of those facts about the scope of inquiry and the power of the Court to determine whether a party to the lis was of unsound mind, it was held:
"11. The learned counsel appearing for the petitioner-defendant while commenting upon the above issues submitted that the Court below is in error in taking into consideration Ex. A-1, which is only a certificate and it was further stated by P.W. 2 that the said certificate was issued at the request of the relatives of the plaintiff and, therefore, the contents of Ex. A-1 certificate cannot be taken into consideration. I cannot agree with this submission for the reason that the contents of Ex. A-1 certificate were proved by examining P.W. 2 and he confirmed the contents of Ex. A-1 and apart from this, the Court below also examined the plaintiff by posing certain questions, it found that the questions put by the Court were not satisfactorily answered. Further it is for the Court to watch the demeanour of the plaintiff basing on the answers given by him to the questions posed by the Court. The Court below not only satisfied itself by putting certain questions but also took into consideration the evidence of P.W. 2, the doctor who issued Ex. A-1, before coming to the conclusion that the plaintiff was of unsound mind and as can be seen from the impugned order, the Court below followed the procedure contemplated under Order 32, Rule 15, C.P.C.
12. At this stage, the learned counsel for the petitioner relied on a decision of this Court reported in Rami Reddy v. Pappi Reddi, AIR 1963 Andh Pra 160, wherein this Court discussing the scope of Order 32, Rule 15, C.P.C., framed certain principles in order to assess the mental status of a person. In the said judgment, the learned single Judge of this Court followed the judgment of the Madras High Court in Balakrishnan v. Balachandran, (1956) 1 Mad LJ 459, wherein it was held as under:
The procedure involves a judicial inquiry which consists normally of two parts: (1) questioning the lunatic by the Judge himself in open Court, or in chambers, in order to see whether he is really a lunatic and of unsound mind, and (2) as the Court is generally presided over only by a layman, to send the alleged lunatic to a doctor for report about his mental condition after keeping him under observation for some days .............When this elementary precaution of a judicial inquiry prescribed by law is not observed, I am afraid that the laws of this Court will not allow a man to be declared as a lunatic and a guardian appointed for him, on such basis.
13. From the above principle laid down by the Madras High Court it is clear that; first the Court has to question the alleged lunatic in order to satisfy itself and nextly as by subjecting the person to a medical test by a doctor. In the instant case, it is apparent from the record that the Court initially examined the plaintiff by posing certain questions in order to know his mental status and further it examined P.W. 2, the doctor who issued Ex. A-1 medical certificate. From this it is clear that the Court below, before coming to the conclusion regarding mental status of the plaintiff, had not only satisfied itself by posing certain questions, but also examined the doctor. Therefore, in my opinion, the Court below, substantially complied with the principles laid down in the decision cited by the counsel for the petitioner (AIR 1963 Andh Pra 160) (supra).
14. On the other hand, the learned counsel appearing for the respondent-plaintiff Sri P. Sridhar Reddy relied on a decision of the Division Bench of this Court in S. Krishnamurthyv. S. Sasila, AIR 1983 Andh Pra 174. In the said judgment, dealing with a petition under Order 32, Rule 15, C.P.C., this Court at paragraph No. 9, observed as under:
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 absence of any express provision in the Rule as to the nature of the enquiry that should be conducted, it is not 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 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......In Govindayya v.Ramamurthy, AIR 1941 Madras 524, a Division Bench of the Madras High Court consisting of Venkataramana Rao and Horwill, JJ. summarized the scope of O. XXXII, R. 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 incapable 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 exent 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.
15. 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."
(Emphasis by Court)
21. Again, in a matrimonial cause the question arose before a Division Bench of the Madras High Court in L. Hemalatha vs. N.P. Jayakumar, 2008 (1) CTC 681, where the husband had sought annulment of marriage on ground that the wife was of unsound mind before marriage and the fact had been suppressed. The petition was heard by the Family Court governed by the provisions of the Family Courts Act, which on the evidence led in the face of denial by the wife about the allegation of unsoundness of mind, granted annulment without holding requisite inquiry as to the mental faculties of the wife claimed to be unsound. It appears that no guardian ad litem was appointed or was an application filed to appoint one, in accordance with the provisions of Order XXXII Rule 15 C.P.C.. Those provisions in this case were applicable by virtue of Section 10 of the Family Courts Act, 1984. In the context of the said facts, it was held in Hemalatha (supra):
"21.2. Order 32, Rules 1 to 14, except Rule 2-A, shall apply to persons of unsound mind. Order 32, Rule 3 contemplates filing of an Application for the appointment of guardian where the respondent is alleged to be a person of unsound mind. Order 32, Rule 15 of the Code of Civil Procedure extends the application of Order 32, Rules 1 to 14, except Rule 2-A, to the 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 reasons of any mental infirmity, of protecting their interest when suing or being sued.
21.3. The expression, "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 sued" found in Order 32, Rule 15 of the Code of Civil Procedure makes it clear that a duty is cast on the Court to arrive at the finding whether on the pleadings or even in the absence of any pleading, when it is brought to the notice of the Court by the evidence on record whether any person is found by the Court, on enquiry to be incapable of protecting his or her interest, when suing or being sued and such duty, in our considered opinion, is mandatory and not discretionary. Any deviation from the above rule would render Order 32, Rule 1 to 14 of the Code of Civil Procedure redundant, inasmuch as the Court is expected to be a guardian of interest of the minors and persons of unsound mind who are incapable of protecting their interest. Therefore, the duty cast on the Court is to consider whether the respondent is in a position to act independently or not and whether the appointment of a guardian is necessary or not, and render necessary finding.
21.4. In the instant case, the petitioner-husband, having alleged that the respondent-wife is a person of unsound mind, ought to have filed an Application for appointment of guardian, because even on his own pleadings, the respondent-wife, being a person of unsound mind, could not defend herself.
21.5. The Trial Court ought to have satisfied itself whether the respondent-wife is a person of unsound mind or not. If the Trial Court on the basis of materials placed before it, finds that the allegations of the petitioner-husband are not sustainable, there is no need to appoint a guardian to defend the respondent-wife. On the other hand, if it is satisfied that the respondent-wife is a person of unsound mind, it should appoint a guardian to defend her. Such duty has not been discharged by the Trial Court in the instant case.
21.6. The primary duty of a Court is to see that truth is arrived at. But, the Trial Court has simply accepted the case of the petitioner-husband without insisting on an Application under Order 32, Rule 15 of the Code of Civil Procedure. The failure on the part of the petitioner-husband and the lapse on the Trial Court to discharge the mandatory obligation as contemplated under Order 32, Rule 15 of the Code of Civil Procedure read with Section 10 of the Family Courts Act would render the order as a whole nullity in the eye of law.
(Emphasis by Court)
22. The question fell for consideration before the Punjab and Haryana High Court in Dilbagh Singh vs. Sawinder Kaur, 2011 SCC OnLine P&H 13 : AIR 2011 P&H 38. The question arose in the context of a suit that was filed on behalf of Dilbagh Singh by his wife, as his next friend, claiming him to be of unsound mind and mentally infirm. That fact was contested and the learned Civil Judge (Junior Division), Tarn Taran before whom the question came up held that he had no jurisdiction to find the plaintiff of unsound mind, as that power is vested in the District Judge under the provisions of the Mental Health Act, 1987. The Trial Judge adjourned the cause giving time to the next friend to seek adjudication of the matter by the learned District Judge. Against the said order, the next friend brought a Revision to the High Court. In the context of those facts, referring to the provisions of Order XXXII Rule 15 CPC, it was held by L.N.Mittal, J.:
"Perusal of the aforesaid statutory provision reveals that Rules 1 to 14 of Order 32 CPC would apply to a person, who has been adjudged (either before or during pendency of the suit) to be of unsound mind. It further lays down that the aforesaid rules shall also apply to a person, who although not so adjudged, is found by the court on inquiry to be incapable, by reason of mental infirmity, of protecting his interest when suing or being sued. It is thus manifest from a bare reading of the aforesaid provision that it consists of two parts. The first part applies where a person has been adjudged to be of unsound mind. In that event, no further inquiry is required to be held by the civil court on this question and straightway, provisions of Order 32 Rules 1 to 14 CPC would apply to such a person, who has been adjudged to be of unsound mind. However, the second part deals with the situation, where the person has not been adjudged to be of unsound mind. In that event, the trial court has to hold an inquiry as to whether such person is, by reason of any mental infirmity, incapable of protecting his interest as party to the suit. In the instant case, the plaintiff has not been adjudged to be of unsound mind either under the Act or in any other proceedings. Consequently, second part of Order 32 Rule 15 CPC applies to the instant case, and therefore, it was obligatory on the trial court to conduct inquiry to find out as to whether the plaintiff, by reason of any mental infirmity, is incapable of protecting his interest as plaintiff in the suit. The trial court has, however, failed to conduct any such inquiry. In other words, the trial court has failed to exercise jurisdiction, which vested in it under Order 32 Rule 15 CPC. The trial court has committed illegality and jurisdictional error by abdicating its power and responsibility to hold necessary inquiry under Order 32 Rule 15 CPC. Consequently, the impugned order is liable to be set aside in exercise of revisional jurisdiction under Article 227 of the Constitution of India."
23. It is thus evident that even if the provisions of Order XXXII Rule 15 CPC do not apply, in proceedings before the Consolidation Authorities, seized as they were of a title dispute, the salutary principles of law would apply. Rule 15 of Order XXXII CPC embodies a rule of prudence that the question whether the party to a litigation is of unsound mind or not, or otherwise suffering from mental infirmity that renders him incapable of protecting his interest when suing or being sued is to be determined by the Court upon an inquiry made. It cannot be held to be so, as already remarked hereinbefore, on allegations or counter allegations of parties, or even admissions made by parties. The finding by the Court may be recorded on its own impressions or may be better reached after referring the parties to a competent doctor for his psychiatric evaluation. May be, that inquiry need not to be made in a case to which Order XXXII Rule 15 CPC does not apply, where the person claimed to be of unsound mind has been adjudged to be so by a competent authority under the law, such as one under the Mental Health Act, 1987 as urged in Dilbag Singh (supra), but not accepted on the facts there.
24. A reading of the impugned order also shows that respondent No.3 on 04.10.1983, 23.09.1985, and 23.11.1983, through applications made for the purpose supported by affidavit sought to summon Raghubar Dei in Court, but that effort was resisted by her daughter, the present petitioner's mother who was disinclined to produce Raghubar Dei in Court. In case, Raghubar Dei was indeed a lunatic, the petitioner's mother, who was prosecuting the application to set aside the compromise, would have produced Raghubar Dei in Court and conveniently proved her case by demonstration of her mental faculty. She could then have been referred to the medical examination of a competent doctor, but she was never produced in Court, despite efforts made by the other side. The fact that the respondents wanted Raghubar Dei to be produced in Court, are indicative of the fact that Raghubar Dei was in possession of apparently sound mental faculties. It also indicates that the third and the fourth respondent were not shy of the fact that Raghubar Dei may come forward and disown the compromise in Court. Rather, the conduct of her daughter in keeping back Raghubar Dei from Court, which is apparent from a reading of the order passed by the Consolidation Officer, shows that it was the petitioner's mother and the daughter of Raghubar Dei, who did not want her to come and testify to the genuineness or otherwise of the compromise before the Consolidation Officer. Under these circumstances an adverse inference is to be drawn against the petitioner, in the matter of genuineness of the compromise.
25. So far as the Vakalatnama about which much has been made by the Consolidation Officer, this Court had occasion to examine the same after summoning the record in original. It is true that the Vakalatnama on behalf of respondent Nos. 3 and 4, and that on behalf of Raghubar Dei, are both filled up in the same hand. Also, there is an endorsement of the name of Shri Ghanshyam Tripathi, Advocate across the face of the Court fee stamps on both the Vakalatnama. Nevertheless, the two Vakalatnama are distinct and different in the sense that these are executed in favour of two different Counsel. Raghubar Dei has executed the Vakalatnama in favour of Sri Tapa Nath Mishra, Advocate, who has accepted appearance on her behalf, whereas respondent Nos.3 and 4 have executed a joint Vakalatnama in favour of Sri Ghanshayam Tripathi Advoate, who too has accepted appearance on their behalf. To draw an inference that since the two Vakalatnama bear entries written in the same hand and there is endorsement of the same Counsel's name across the adhesive Court fee stamps on both documents, the compromise is sham or fraudulent, would be utterly misplaced. In an atmosphere where parties are compromising it is common place that the same person fills up these formal documents. Normally, Vakalatnama are filled up by the Advocate's Clerks. It is quite possible that the same clerk filled up the Vakalatnama and got adhesive stamp affixed, purchased by the office of one of the learned Counsel. To draw an inference from these facts that there is collusion between the two learned Counsel, or the much more, that one and only one Counsel appeared on behalf of all parties, is in the opinion of this Court, clearly a perverse inference. The Court has looked into the compromise in the original records that were summoned. On the reverse of the memorandum of compromise dated 06.02.1986, there is a distinct endorsement of identification relating to Raghubar Dei's right thumb impression by Sri T.N. Mishra, Advocate, who has signed an undated identification. Likewise, to the left of this endorsement, there is identification of the left thumb impressions of respondent Nos. 3 and 4, Shyam Lal and Bankey Lal by Sri G.S. Tripathi, Advocate, appearing on their behalf. Above these endorsements, also on the reverse of the compromise, there is a memorandum of verification by the Consolidation Officer scribed in his own hand, signed and dated, saying that parties have formally compromised on the terms recorded in his presence. The endorsement of verification by the Consolidation Officer, as aforesaid, reads as under:
"आज यह सुलहनामा श्रीमती रघुबर देइ ने शनाख्त श्री तपनाथ मिश्र एडवोकेट व सर्वश्री श्यामलाल व बांकेलाल पुत्रगण कल्पनाथ ने शनाख्त श्री घनश्याम त्रिपाठी दाखिल कर के नक़ल तस्दीक किया । सुलहनामा पत्रावली के साथ शामिल मिसिल हो ।
--sd---
CO 6/2/86"
26. It is after the aforesaid verification that the order disposing of the applications under Section 12 was passed in terms of the compromise, vide order dated 06.02.1986. To hold this compromise as one that is the result of collusion between Counsel and one that does not represent the true intent of parties by doubting the mental faculty of one of the parties, without any evidence to that effect being there, is a conclusion manifestly illegal to draw ex facie from these facts and evidence. The findings of the S.O.C. are way off the mark in upholding the impugned order passed by the Consolidation Officer. The findings of the S.O.C., are virtually based on that acceptance in the counter affidavit, where the respondents have acknowledged Raghubar Dei to be an idiot, and further on Raghubar Dei's stand that her husband, who had executed the Will, giving rise to this dispute, also was an idiot and lunatic. These can hardly be countenanced. Such conclusions of serious consequence that not only affect rights of parties, but their status, cannot be lightly and callously drawn in the manner the S.O.C has done. The Deputy Director of Consolidation has reversed the orders passed by the Consolidation Officer and the S.O.C.; but, this Court must remark that he has not done so for good and sufficient reasons. While this Court is in agreement with the order made by the Deputy Director of Consolidation, there is much to be desired in the reasoning offered by him in writing the order impugned. The reasons that are indicated hereinabove would, therefore, be read to supplement those of the Deputy Director of Consolidation carried in the order impugned here, which this Court finds not liable to be interfered with in exercise of jurisdiction under Article 226 of the Constitution.
27. In the result, the writ petition fails and is dismissed.
28. No order as to costs.
Order Date :- 20.9.2019 NSC,BKM, Deepak