S CHATTANATHA KARAYALAR Vs. VAIKUNTARAMA KARAYALAR

JUDGEMENT

(1.) THE first defendant is the petitioner. The relevant facts necessary for purposes of this case may be summarised as follows: The first defendant filed I. A. No. 374 of 1962 in the Court of the Subordinate Judge Tirunelveli, under O. 3, R. 1, O. 32, r. 15, O. 26, R. 1 and S. 151, Civil P. C. , for the examination of the first plaintiff by a medical expert to ascertain his mental condition and to find out whether he is capable of managing his affairs. Apparently, this application was taken by the first defendant with the object of appointing a next friend or guardian to the first plaintiff under O. 32, R. 15, Civil P. C. This application was opposed by the first plaintiff and his brother the second plaintiff. In the counter filed, the first plaintiff avers that "the plea that he should be represented by a next friend is a malicious one and that it is not bona fide". He has also produced their family doctor's certificate to show that the allegations of the first defendant are false. In the main, the first plaintiff's contention is that there is on mental infirmity in him and that he is capable of managing his affairs or that of the joint family consisting of himself fan his two sons. He would add that no next friend is necessary. Thereafter the first plaintiff's son applied for impleading themselves as parties to the suit. During the pendency of this application, one of the first plaintiff's sons Subramaniam, whom I shall refer to by name hereafter, filed I. A. No. 149 of 1965 under O. 32, R. 15, to be appointed as next friend of his father. Subramaniam reiterates that though his father, the first plaintiff, requires on guardian under O. 32, R. 15, but he is applying for the same without prejudice and in order to obviate delay and in view of the attitude of the first defendant. This application I. A. No. 149 of 1965, was opposed by the first defendant on two grounds: firstly, that unless there is a candid admission that the first plaintiff is by reason of the mental infirmity, incapable of managing his affairs and secondly, unless there is a finding to that effect, on a judicial enquiry an investigation made by Court, as envisaged under O. 32, R. 15, the application is incompetent.

(2.) ONE thing emerges from the above background as to facts of the case. The first plaintiff (the father) would swear that he is mentally alert and that the application for his examination by an expert is malicious and misconceived. he is prepared to conduct the litigation on his own though he is deaf and dumb and is of the opinion that any one who is not intimately acquainted with him can reach his mind and interpret it. But his son Subramaniam would hesitantly say that without prejudice he would concede that his father is unable to manage his affairs and in order to avoid delay and protraction of the main suit, he would like to act as his father's next friend. These two irreconcilable and indeed contradictory stands taken respectively by the father and the son do create a cloud of suspicion as to the capability of the first plaintiff to stand on his legs and conduct the litigation. No doubt, the first defendant by applying for the examination of the first plaintiff by an expert, in I. A. No. 374 of 1962 has taken a defined step towards the appointment of a guardian for the first plaintiff. He has also made indeed self-serving statements in the course of the proceedings that the suit is not maintainable without a next friend being appointed for the first plaintiff. Appointment of a guardian or next friend to a person who is incapable of managing his affairs is a serious inroad upon the litigant's right to carry on his suit. Such wedging of a personal right in a party cannot be deduced inferred or even taken for granted because the other parties to the lis have no objection to such an appointment. The Court has a primary duty to perform in such circumstances. It has to judicially enquire whether it is necessary in the interests of justice. Mere and sole reliance upon the wishes and sentiments expressed by the other parties to the suit would neither be a guide or a safe guide. Even so, the fact that the first plaintiff is deaf and dumb cannot make a significant difference. In fact, the first plaintiff himself does not subscribe to the position that he is so incapable of managing his affairs. Notwithstanding the consensus of opinion amongst the other parties to the suit, the Court cannot dispense with the judicial enquiry contemplated under Order 32, Rule 15 and render a clear finding that the person concerned, by reason of his infirmity, either physical or mental, is incapable of protecting his interests, in the suit. The holding of such an enquiry is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend. As was pointed out in Nirendra Lal Bhattacharya v. Bepin Chandra bhattacharya, AIR 1935 Cal 224:

(3.) IN fact, Courts in England have taken a similar view, though strictly the rules therein do not contemplate an enquiry. Satyanarayana Rao J. in Mohamed Ibrahim v. Mohamed Marakayar, AIR 1949 Mad 292, 294, held: