JAI PRAKASH GOEL Vs. STATE

JUDGEMENT

(1.) The question before the Court is whether a guardian ad litem should be appointed for Respondent No.4, namely, Shri Brahm Prakash Goel, who has filed IA No.9693/1999 invoking the provision of Order XXXII Rules 3 and 15. It has been prayed that the Wife of Shri Brahm Prakash, namely, Mrs. Meena Goel be appointed as his guardian ad litem. The first thing to be noticed is that this application has been proffered after a passage of over one decade since the filing of Probate Petition No.10/1987. It may also be recorded that Shri Brahm Prakash had earlier filed IA No.10110/1998 praying that he be permitted to withdraw his No-Objection to the grant of Probate.

(2.) A person may not be adjudged as of unsound mind yet the Court may nevertheless consider it appropriate to appoint a guardian ad litem under Order XXXII Rule 15. However, the Court is not bound to make a rigorous or formal inquiry as contemplated by the Lunacy Act, and is competent to pass an order as soon as it is satisfied as to the party's mental competence. There is a vast difference between mental unsoundness and incapacity by reason of mental infirmity, the latter being of a lesser degree. The Collins/Cobuild English Dictionary defines "infirm" as weak or ill and usually old. The Concise Oxford Dictionary states that "infirm" refers to a person who is not physically strong, especially through age. In Black's Law Dictionary "infirm" has been defined as - weak, feeble, lacking moral character or weak of health. Incapacity has been defined in the same treatise as want of legal ability of act. A person suffering from a low intellectual quotient (IQ) may not be viewable as of unsound mind, but there can be no gainsaying that he would be incapable of protecting his interests in a litigation. The Mental Health Act, 1987, in Section 2(l) defines 'mentally ill person' as one who is in need of treatment by reason of any mental disorder other than retardation, thereby drawing a distinction between these states of health. Respondent No.4 would not be of unsound mind but there is no manner of doubt that he is incapable of protecting his interests in the litigation by reason of his infirmity and infliction of an abnormally low IQ. The parents of the parties recognized his mental impairment as is amply evident from the fact that a Trust was allegedly established by their mother. The Petitioner must have been aware of the advisability of having a guardian appointed for him. The Petitioner certainly gained from the situation in that he had dominion and control over the properties bequeathed to Respondent No.4. The Petitioner failed to take the precaution of filing an application under Order XXXII Rule 15. In Kasturi Bai and others vs. Anguri Chaudhary, AIR 2003 SC 1773 the Hon'ble Supreme Court has opined as follows:- 10. Order 32, Rule 15, C.P.C. reads thus:

(3.) This Petition pertains to the Will of the Father of the Petitioner and the Applicant/Respondent No.4 dated 27.8.1993, in terms of which the immovable properties of the Testator were bequeathed absolutely and forever to the Petitioner and his sons. The Will further devised that all debts and liabilities including estate duty shall be first paid out of cash and movable properties that may be left by the Testator and the residue cash and movable properties shall belong to and vest in his three sons, Jai Prakash Goel, Satya Prakash Goel and Brahm Prakash Goel absolutely and in equal shares. Shri Satya Prakash had filed Objections as far back as in November, 1987, whereas Brahm Prakash had accorded his No-Objection by means of an Affidavit dated 27.4.1988 which accompanied a similar Declaration by the Widow of the Testator/Mother of the parties, namely, Late Muthri Devi. The Will of Late Muthri Devi dated 7.6.1988 for which Probate has been applied for in the District Court, bequeathed/transfers the "Land on the left side of the main gate containing three tin sheds along with pucca verandah and a triangular pucca room, one tin shed measuring 72'.6"x 26'.6" on the right side of the main gate, marked Red in the plan shall vest in Trust for the benefit of my son Shri Brahm Prakash presently residing at first floor of 30/22, Shakti Nagar, Delhi-110007. The formation of Trust is necessary because of the improper, unattached and estranged behavior of Smt. Meena Goel towards her husband Shri Brahm Prakash (my son)". It has been contended that the Trust was formed only because of the conduct of Mrs. Meena Goel but I cannot agree with this submission. Obviously, Late Muthri Devi was well aware that Shri Brahm Prakash could not look after his own affairs and, therefore, a Trust was required for his welfare. It is unheard of that the moment a misunderstanding between spouses or breakdown of a marriage occurs, the property of the Husband are put into a Trust. The formation of a Trust by the Mother of the parties is sufficient proof that Shri Brahm Prakash is of unsound mind in that he cannot properly and effectively safeguard his interests. It is also not in contention that a Probate Petition in respect of the Will of Late Muthri Devi is also pending adjudication in the District Court in which Shri Brahm Prakash was arrayed as one of the Petitioners, but has since been transposed as a Respondent. It is the common case of the parties that a Trust is sought to have been created by this Will whereby Shri Jai Prakash/Petitioner is to act as a Trustee for Shri Brahm Prakash.