SIYARAM Vs. ASHOK KUMAR (DECEASED) AND 2 OTHERS

JUDGEMENT

(1.) Heard Sri R.K. Pandey counsel for the petitioner and Sri Rajiv Gupta, counsel for the respondents.

(2.) The main issue which arises for consideration is whether in case there is a testamentary guardian designated for a person of unsound mind, he alone can act as next friend while instituting suit on his behalf or any other person interested in his welfare can also act as his next friend. Another ancillary issue is whether notice given by the next friend, on behalf of person of unsound mind, terminating tenancy under Section 106 of the Transfer of Property Act, 1882 could result in valid determination of tenancy or not. The backdrop in which the aforesaid issues arise for consideration are as follows :-

(3.) A suit bearing SCC No.5 of 2016 for recovery of arrears of rent and eviction of the petitioner from a shop situated in Mohalla Holiwala Kasba Hasanpur District J.P. Nagar was instituted by Ashok Kumar ('the original plaintiff') through next friend Smt. Baljati Devi, his mother. It is alleged that the plaintiff was a person of unsound mind and his next friend-Baljati Devi is her mother and natural guardian; that Case No. 98 of 2005 is pending for her appointment as guardian; that the petitioner had defaulted in payment of rent since 1.1.1997 and had failed to pay the same despite service of notice dated 6.1.2006 under Section 106 of the Transfer of Property Act and was therefore liable for eviction. The suit was contested by the petitioner by filing a written statement in which he admitted that the original plaintiff was a person of unsound mind. However, it was alleged that Smt. Baljati Devi could not act as next friend of the plaintiff as under registered will of his father Late Ramanand Gupta, dated 12.11.1996, he appointed his daughter Saroj Kumari and grand daughter Smt. Shalini Kapoor wife of Rakesh Kapoor as guardian to look after the welfare of the plaintiff. They were also given right to realise rent and to utilize the same in the upbringing of the plaintiff. Thus, according to the petitioner, Baljati Devi could not act as next friend. The suit could only be brought by testamentary guardians Smt. Saroj Kumari and/or Shalini Kapoor. It was alleged that rent upto 20.2.2007 was paid to Shalini Kapoor the testamentary guardian. Thus there was no default in payment of rent. The notice under Section 106 of the Transfer of Property Act dated 6.1.2006 was invalid, as it was not given by the testamentary guardians. It did not result in termination of the tenancy.