Gauhati High Court
On The Death Of Binoy Bhusan Choudhury ... vs Rekha Rani Deb & Ors on 6 February, 2014
Equivalent citations: AIR 2014 GAUHATI 50, (2014) 137 ALLINDCAS 783 (GAU)
Author: N. Chaudhury
Bench: N. Chaudhury
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
RSA 98/2003
1. On the death of appellant No. 1, Sri Binoy Bhusan Choudhury,
his legal heirs-
1(a) Smti. Mira Choudhury (wife)
1(b) Sri Biswajit Choudhury (son)
1(c) Smt. Minakshi Purkayastha (Dau)
1(d) Smti. Moushumi Das Gupta (Dau)
1(e) Smti. Minideepa Biswas (Dau)
2. On the death of appellant No. 2, Sri Bibash Choudhury,
his legal heirs -
2(a) Smti Rita Choudhury (wife)
2(b) Miss. Tina Choudhury (dau)
2(c) Miss. Sanchitaya Choudhury (dau)
2(d) Sri Bireshwar Choudhury(son)
3. Smt. Nilima Shome
Wife of Sri Lokesh Ch. Shome,
National Highway, Silchar Town,
P.O. - Silchar, Dist. Cachar.
4. Smti Shelly Deb
Wife of Sri Nabendu Bikash Deb,
Subash Nagar, Silchar Town,
P.O. - Silchar,
Ph. Barakpar,
Dist.- Cachar. ... Plaintiffs / Appellants
Vs
1. Smti Rekha Rani Deb
Wife of Sri Nirendra Kr. Dey
@ Nantu Dey
2. Sri Nantu Dey
@ Nirendu Kr. Dey
Padmanagar East,
Silchar Town, Ph. Barakpar,
Dist. - Cachar,
P.O. - Silchar.
3. Haripada Das
4. Krishna Das
5. Smti Kalpana Das
3 to 5 are sons and daughter
Of Late Jogendra Ch. Das
National Highway,
P.O.- Silchar, Ph. Barakpar,
Dist.- Cachar.
6. Smti Kanan Das
Daughter of Late Jogendra Ch. Das,
Wife of Shri Chinu Das
2
Natun Bazar, P.O. Narsingpur,
Ph. Bonraj, Dist. Cachar. -- Defendants / Respondents
BEFORE HON'BLE Mr. JUSTICE N. CHAUDHURY For the Appellants :: Mr. B.C. Das Mr. B.K. Purkayastha Mr. S. Roy ......learned counsel for the appellants For the Respondents :: Mr. N. Dhar Mr. P. Dutta Mr. D.R. Choudhury
----learned counsel for the respondents Date of hearing :: 06.02.2014 Date of delivery of Judgment :: 06.02.2014 JUDGMENT & ORDER(ORAL) This second appeal is preferred against the lower appellate judgment and decree dated 14.02.2003 passed by the learned District Judge, Cachar at Silchar in Title Appeal No. 5 of 1998 whereby the trial Court's judgment and decree dated 18.05.1998 passed by the learned Civil Judge (Senior Division No. 2) Silchar in Title Suit No. 90/1988 was set aside and reversed thereby dismissing the suit of the plaintiffs.
2. One Nabendu Bikash Deb claiming to be next friend of the plaintiff, Bidhan Bhusan Choudhury and describing said Bidhan Bhushan Choudhury as an insane filed Title Suit on his behalf praying for a decree for declaration of right, title and interest and permission of possession over a plot of land measuring 15 kathas 1 chatak 17 3 gondas under Dag Nos. 370 of second R.S. Patta No. 120 as well as Dag No. 369 of second R.S. Patta No. 199 of Mouja Ambicapur Part IX of Silchar Town and also for cancellation of a registered sale deed No. 3518 dated 18.09.1987 and a registered Power of Attorney No. 277 dated 26.07.1987. The case of the plaintiff was that plaintiff originally owned and possessed about 2 bighas 9 kathas 9 chataks and 8 gondas of land in the aforesaid 2 dags by way of purchase out of which he sold land to one Chhaya Chatterjee and one Sanjoy Chatterjee on various days. Thereafter he retained only the suit land measuring 15 kathas 1 chatak 17 gondas of land. According to the plaintiff, the defendant No. 2 is a resident of the opposite plot of the suit land and because of living in the neighbourhood became a friend of the plaintiff. Plaintiff became insane since 1985 and taking this opportunity defendant No. 2 initially got a registered Power of Attorney executed by him on 26.07.1987 and subsequently on the basis of the said Power of Attorney got the suit land sold in favour of his wife, the defendant No. 1 herein. According to the plaintiff, permission of Silchar Development Authority was fraudulently obtained for such sale and there was no permission from the Collector. The plaintiff did not receive any money against aforesaid sale in favour of the defendant No. 1 and never parted with the possession of the land. The plaintiff claimed to be alone in possession of the suit land. Subsequently, the relations and a next friend of the plaintiff came to know about the execution of the Power of Attorney and the consequent sale deed referred to above and thereafter obtained certified copy of the same on 09.08.1988. Upon discovery of these documents it was found that defendant No. 2 played fraud on the plaintiff for obtaining these documents. On these facts, the plaint was presented by aforesaid Nabendu Bikash Deb on 16.09.1988. In the aforesaid suit the defendant No. 1, being the predecessor and 4 defendant No. 2, being the constituted attorney was impleaded as defendant Nos. 1 & 2 respectively.
3. On being summoned the aforesaid two defendants submitted written statement and specifically denied the plea of the plaintiff that plaintiff was insane after 1985, that its power of attorney was duly executed and registered by the plaintiff himself, that the plaintiff opened Savings Bank Account with the United Commercial Bank on 22.02.1986 by SB Account No.3379 and went on operating the said account from time to time. The defendants further disclosed that having obtained possession of the land pursuant to purchase on 18.09.1987 the land was subsequently sold to one Kusum Rani Das on 09.08.1988 who has been possessing the land pursuant to purchase. In its written statement the defendants took the plea that the suit is not maintainable in present form and that it is also bad for non-joinder of Kusum Rani Das. After filing of this written statement, plaintiff brought the plaint amended and made aforesaid Kusum Rani Das impleaded as defendant No. 3 in the case vide order dated 12.05.1989. Thereafter summon was issued to the newly impleaded defendant No. 3 (Kusum Rani Das) who also submitted written statement and denied the case of the plaintiff. She claimed to have purchased the land on 09.08.1988 and took possession thereof. She further stated that she has constructed the house in the suit land and was possessing the same.
4. On the basis of the aforesaid rival contention of the parties, the learned trial Court initially framed the following five issues:-
A. Is there any cause of action for the suit?5
B. Is the suit maintainable in its present form?
C. Whether the Power of Attorney is false and fraudulent and whether liable to cancellation?
D. Whether the plaintiff has got any right, title and interest over the suit land?
E. To what relief the plaintiff is entitled?
5. Thereafter another additional issue was framed in the case and the said additional issue is quoted below:
Additional issue "Whether the original plaintiff, Bidhan Bhusan Choudhury was mentally fit to execute any deed in the suit?"
6. It needs to be mentioned herein that during the pendency of the suit the plaintiff died on 05.07.1994 as a bachelor and thereupon his brother and sister being the class II legal heirs were impleaded as plaintiffs.
7. In course of trial, plaintiffs have examined as many as 4 witnesses including two doctors, as P/W 2 & 3 and the defendants examined as many as 3 witnesses including the Sub-Registrar before whom the questioned Power of Attorney was registered. The learned trial Court after consideration of the deposition of the witnesses and on perusal of the materials available on record arrived at the finding that the plaintiff was of unsound mind in relevant time and as such institution of the suit by his next friend became necessary. The learned trial Court came to further findings that since there is no dispute as to acquisition of title to the land in question by the 6 plaintiff. Admittedly plaintiff had title to the land but since he was of unsound mind on the day the alleged deed of Power of Attorney and registered sale deed referred to above were executed, said deeds were invalid and inoperative. With all these basic findings, the learned trial Court decreed the suit in entirety. Thus right, title and interest of the plaintiff over the suit land was declared, his possession was also confirmed and the registered Power of Attorney and registered sale deed dated 18.09.1987 were cancelled.
8. Aggrieved by the aforesaid judgment and decree of the learned trial Court, the defendants preferred Title Appeal No. 5 of 1998 in the Court of learned District Judge, Cachar at Silchar. After the appeal was admitted and records were called for the appellants filed application under Order XLI Rule 27 of the Code of Civil Procedure for leading evidence at the appellate stage and such prayer being allowed some documents were brought on record and witnesses were examined. Special Registrar, Amalendu Bhattacharjee was examined as DW1 at the appellate stage who stated that the executants of the Power of Attorney (Ext.-C) had executed the documents in his presence and Ext.-C(10) and C(11) are his signature and thumb impression respectively. He also proved Ext.-C(12) as his endorsement and Ext.C(13) as his signature and date. This witness also proved that Ext.-D, sale deed was executed and registered by him. In course of cross-examination the D-1 specifically stated that plaintiff, Bidhan Bhushan Choudury being executants of the Power of Attorney admitted the execution of the deed in front of him and such admission of execution is evidenced by his endorsement at Ext.-C(12). His cross-examination does not show that any suggestion was made to him questioning the identity of the plaintiff at the time of registration. DW-2 (Sumit Kumar Deb) a Senior Branch Manager of 7 the UCO Bank, proved Ext.-A1, B1 and C1 which are withdrawal slips pertaining to the Savings Bank Account of the plaintiff. DW3, Sashi Kanta Dutta is a U.D. Assistant of Silchar Municipal Board and he was also examined at the same time to prove Ext.-D and Ext.-E showing mutation of the name of the purchaser of suit land from the plaintiff.
9. The PW1 is Bivash Chandra Choudhury, a brother of the original plaintiff. PW2 is one Dr. Mrinal Kanta Dutta Choudhury who issued Ext.-8 certificate and deposed that plaintiff was suffering from organic brain disorder since 1985. He also stated that plaintiff was treated by a Psychiatrist. From Ext.-8, Medical Certificate it appears that PW2 is an MBBS and has undergone training on child diseases. He is not a Psychiatrist. PW3 is a Psychiatrist. He was Professor in the Department of Psychiatry in Silchar Medical College. According to him, he examined the plaintiff on 28.09.1993 and also referred him to NIMHANS at Bangalore. Ext.-7 is the prescription given by him. In course of his cross-examination he admitted that he did not recall to have seen the plaintiff prior to 28.09.1993 and that he could not locate the exact pathology of the disease suffered by the plaintiff as on 28.09.1993 and that is why he advised the patient for further investigation. Thus from the evidences of PW2 & 3, it is not possible to arrive at a positive findings that as on the date of execution of the Power of Attorney the plaintiff was of unsound mind. PW4 is Nabendu Bikash Deb who presented the plaint on behalf of the plaintiff. On behalf of defendants there are two sets of evidences. A set of 3 persons as DWs 1, 2 & 3 were examined at the trial stage and they are one Merab Ali Laskar, Nirendra Kumar Dey @ Anendu Dey (defendant No. 2) and one Hari Prada Das as DW3. This Hari Prada Das was attesting witness of Ext.-C, (Power of Attorney) and he had identified the plaintiff in front of the said Registrar. The second set of 8 DWs 1, 2 & 3 were examined at appellate stage and as discussed above they were Amalendu Bhattacharjee (DW1) the Sub-Registrar, Sumit Kumar Deb (Senior Branch Manager, UCO Bank) and Sashi Kanta Dutta (Upper Division Assistant of Silchar Municipal Board). So really there are as many as 6 witnesses from the side of the defendants out of which 3 were examined at trial stage and 3 at appellate stage.
10. The learned Lower Appellate Court after consideration of all these depositions and exhibits noticed that the suit was filed by one Nabendu Bikash Deb who claimed to be next kin of plaintiff and described the plaintiff as a person of unsound mind. The suit itself was incompetent in view of the fact that there was no inquiry as contemplated under the provisions of Order XXXII of the Code of Civil Procedure. If the suit itself was incompetent as to the date of its institution the decree passed therein could not have been maintainable and/or sustainable. The learned District Judge even on merit found that unsoundness of mind of the plaintiff could not be proved on merit. Thus not only on the point of maintainability but also on the point of merit the suit of the plaintiff was found to be incompetent. Consequently the learned District Judge allowed the appeal, set aside the judgment of the learned trial Court and dismissed the suit of the plaintiff. The said judgment was passed by learned Appellate Court on 14.02.2003 and it is this judgment which has been brought under challenge in the present second appeal. This Court while admitting the second appeal on 04.09.2003 framed the following three substantial questions of law:
1. Whether the learned lower Appellate Court was justified in dismissing the suit of the plaintiff (a person of unsound mind) filed by the next fried on the ground of omission to hold an enquiry in 9 compliance of the provisions of Order XXXII Rule 15 of the Code of Civil Procedure inasmuch as non-holding of any enquiry at the initial stage is only an irregularity merely touching the procedure and does not render the suit defective.
2. Whether, the execution of the power of attorney not having been seen by anybody and as such not proved in accordance with law, the learned lower Appellate Court was justified in drawing presumptions under Section 85 of the Evidence Act and holding the same to be a valid document.
3. Whether, in view of the clear finding of the learned trial Court that the plaintiff was not mentally fit since 1985 to execute any deed, the learned lower Appellate was justified in reversing that finding on hyper technical approach.
11. I have heard Mr. B. K. Purkayastha and Mr. P. Dutta, learned counsel for the appellants and Mr. N. Dhar, learned counsel for the respondents.
12. Mr. B.K. Purkayastha placed reliance on two judgments, one of this Court and one of Hon'ble Bombay High Court. In the case of Jhabarmal Panda v. Bhagawati Prasad Kedia reported in AIR 1990 Gau 35, this Court found that defendant not having raised plea of unsoundness of mind of the plaintiff in appropriate time there was no inquiry by Court under Order XXXII Rule 15 of the Code of Civil procedure and as such the ex-parte order passed by the learned trial Court without holding any enquiry as to unsoundness of mind of the plaintiff was not vitiated. This judgment was relied on by learned counsel for the petitioner. To impress upon this Court that an inquiry 10 under Order XXXII Rule 15 of the Code of Civil Procedure is a mere irregularity and it doesnot affect the suit, in the case of Gulabchand Nanulal and others v. Fulchand Hirachand and another reported in AIR 1959 Bom 232 it was held by a Division Bench of Bombay High Court that decree passed in a suit instituted by or on behalf of a minor without a next friend is incompetent.
13. Per contra Mr. N. Dhar, learned counsel for the respondents has placed reliance on the following judgments:
AIR 1988 Kerala 160 and AIR 1999 Allahabad 160 and No. 3 1999 8 SCC 29. In the case of Syed Hussain Baffakkii Thangal & Others (AIR 1988 Kerala 160) the Kerala High Court relied on a Division Bench judgment of Bombay High Court in the case of Somnath v. Tipanna Ramchandra Jannu (Air 1973 Bom 276) and held that Court cannot accept a plaint without conducting inquiry under Order XXXII Rule 15, if the plaintiff is a person of unsound mind. The Kerala High Court has held that such inquiry is a pre-requisite for the suit and thus failure to hold inquiry is fatal. In the case of Khokha Rai v. XII Additional District Judge, Allahabad & Others (AIR 1999 All 160) it was held by the Allahabad High Court that only after production of material by the applicant a Court is to hold inquiry under Order XXXII Rule 15. In that case it was held that merely because a person files an application for appointment of guardian, Court is not obliged to appoint a guardian and to ask the applicant to produce evidence. Rather it is the duty of the applicant to produce evidence and to insist on the learned Court for holding such an inquiry. In the case of Raj Kumar v. Rameshchand & Others reported in (1999) 8SCC 29 the question as to whether a suit without holding such an inquiry is competent, came-up for consideration. Emphasizing on inquiry under Section 50 of the Mental Health Act, 1987, the Hon'ble Supreme Court found that in the case 11 in hand there was an application for holding such inquisition in regard to mental condition of the plaintiff and pursuant to such application guardian was appointed. On the basis of the aforesaid judgments Mr. N. Dhar would insist this Court to hold a view that in a suit instituted on behalf of a person of unsound mind, an inquiry under Order XXXII Rule 15 read with Rule 3 of the Code of Civil Procedure is a condition precedent and in the absence of such an inquiry Court does not have jurisdiction to entertain a suit.
14. On the basis of the aforesaid rival contentions put forward by the learned counsel for the parties, the substantial question of law framed by this Court are required to be decided. The first substantial question of law deals with maintainability of a suit in view of failure on the part of the learned trial Court to hold inquiry under Order XXXII Rule 15 of the Code of Civil Procedure. Order XXXII Rule 1 provides that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Rule 2 of the same Order is the default clause for Rule 1. Rule 2 empowers a Court to take a plaint off the file. This is because in case when a suit is instituted by a next friend he may be required to furnish security on being asked by the Court under Rule 2A. By Rule 15 of Order XXXII of the provisions of Rules 1 to 14 (except Rule 2A) have been made applicable for a parity of unsound mind. Rule 15 of Order XXXII is quoted below:
"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 12 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."
15. It would appear from a perusal of the Rule 15 that there are two parts in the rule. The first part deals with persons who have already been adjudged as persons of unsound mind and the second part deals with the persons who are not so adjudged but if enquiry is held by the Court to which the plaint is presented the party may be found to be of unsound mind. It may be noted in this connection that under Section 50 of the Mental Health Act, 1987 the District Judge after holding enquiry may hold a person to be of unsound mind. Prior to enactment of this Act there was a similar provision in the Lunacy Act. Now the question arises if a person is of unsound mind and has not been so adjudged as in the present case whether a suit instituted in his name would be maintainable and competent unless and until unsoundness of mind of plaintiff is proved and a next friend appointed in compliance of Rule 4. To understand this question we may take analogy. A suit against government or public officer is not maintainable unless there is a prior notice under Section 80(1) of the Code of Civil Procedure. A plaint may be presented accompanied by an application under Section 80(2) CPC praying for leave to dispense with requirement of notice and if Court for reasons to be recorded grants leave then and then only the plaint can be admitted and proceeded with for the purpose of trial to the next stage. So granting of leave under Section 80(2) is a pre-requisite for entertaining a plaint. Similarly, in a suit of representative character under Order I Rule 8 of the Code of Civil Procedure, one person may sue or defend on behalf of all in the same interest with the permission of the Court. This is why even in these cases, the plaint is accompanied by an 13 application praying for permission under Order 1 Rule 8 CPC. If Court grants permission then and then only a suit in the representative capacity becomes maintainable. Even under the provision of Order VII Rule 1, the particulars to be contained in a plaint are laid down. In Clause-(d) of the said rule it is provided that whether the plaintiff or the defendant is a minor or a person of unsound mind, the statement to that effect must be given in the plaint. This being a necessary requirement, even a failure to comply with the same may result in rejection of plaint under Order VII Rule 11 of the CPC. In the case in hand, the plaintiff has been described to be a person of unsound mind by one Nabenendu Bikash Deb. Said Nabendu Bikash Deb has described himself to be a next kin of the plaintiff and in that capacity presented the plaint and proceeded with the trial. Reverting to Rule 15 of Order XXXII it appears that it is the Court who is to adjudge a party to be incapable by reason of any mental infirmity. So holding someone incapable by mental infirmity is the task given to a Court and it cannot be taken for granted by merely describing someone as mentally unsound by a self proclaimed next kin. Rule 3 of the same order indicates that in case where a defendant is a minor, the Court shall not only specify status of minority of such defendant but also Court shall also appoint a proper person to be the guardian ad litem. This is because under Clause (3) of the said Rule, Court is also satisfy itself as to whether a person is fit to be so appointed as guardian of the minor defendant. If it is a case that a defendant is of unsound mind, by operation of Rule 15, the Court would have been saddled with two responsibilities, first to hold enquiry and to determine as to whether the defendant is really a person of unsound mind and then to make appointment of guardian ad litem on being satisfied that such a person is fit to be so appointed. Qualification for being a close friend of the plaintiff or of being appointed as guardian ad litem is laid down in Rule 4 of the Order XXXII. This, interalia, requires that 14 such person does not have any interest adverse to the minor or the person of unsound mind, as the case may be. The first part of Rule 4 relates to plaintiff and so Rule 15 has to be understood keeping in view the provision of Rule 4 of the CPC. This means that once a plaint is presented to a Court describing the plaintiff to be a person of unsound mind and such plaint is presented by a person claiming to be a next kin of the plaintiff, the Court is duty bound to ascertain as to whether the plaintiff is really a person of unsound mind, and if so, to say as to whether the person who has approached this Court claiming to be a next friend of the plaintiff is qualified in terms of Rule 4 of Order XXXII, to be next friend of such plaintiff. Once the provision of Order XXXII is viewed from such angle there is no doubt that this provision is not a merely procedural one but it has essential judicial components also. Apart from using the word 'shall' in Order XXXII Rule 15, the judicial exercise of the Court required by the provision placed this rule at a higher pedestal then a procedural provision. This Rule, therefore, is mandatory and failure to comply with the same would make the plaint unentertainable and consequently the suit would become not maintainable.
16. In the case in hand, Nabendu Bikash Deb is a self styled next friend of the plaintiff who did not even urge the Court to make a necessary adjudication as to the mental capability of the plaintiff before proceeding to entitlement of the suit and the Court also proceeded at the mere ipsi dixit of Nabendu Bikash Deb who has no jural connection with the property. In that view of the matter the learned lower appellate Court has not committed any error in holding that the suit itself was defective and not maintainable for non- compliance of the provision of Order XXXII Rule 15 CPC. The first 15 substantial question of law is accordingly decided against the appellant and in favour of the respondents.
17. Coming to the second and third substantial questions of law it is to be held that once the suit of the plaintiff is found to be non-maintainable the substantial questions No. 2 & 3 of law have become redundant and irrelevant. Accordingly, there is no necessity for deciding the subsequent two issues.
18. Consequently there is no merit in the second appeal and accordingly it is dismissed.
sds JUDGE