A S MOHAMMAD IBRAHIM UMMAL ALIAS SHAHUL HAMEED UMMAL OF UNSOUND MIND BY NEXT FRIEND, M T S MD THAMBI Vs. SHAIK MOHAMMAD MARAKAYAR

JUDGEMENT

(1.) This petition is to revise the orders passed, by the learned Subordinate Judge of Tuticorin in I.A. No. 241 of 1947, in O.S. No. 70 of 1946. The plaintiff is the petitioner before me.

(2.) The suit, O.S. No. 70 of 1946 was instituted on the 15 November, 1946 on behalf of one Mohamad Ibrahim Ummal alias Shahul Hameed Urnraal who was described as a person of unsound mind by her mother as next friend. Ibrahim Ummal succeeded to a portion of her father's estate after his death on the 17 November, 1929. She was married to the second defendant in the suit on 3 March, 1938. The first defendant is her step-brother. During the minority of the said Ibrahim Ummal her mother managed her property and during the course of her management she became liable to pay to this said Ibrahim Ummal a large amount. A suit, O.S. No. 4 of 1940, on the file of the Sub-Court was instituted for an account of the moneys which came into the hands of the mother and for recovery of the amount after it was ascertained. That suit was ultimately compromised and under that compromise the present plaintiff became entitled to some of her mother's property. On the 12 January, 1943, Ibrahim Ummal executed a registered power of attorney in favour of her husband, the second defendant, and in pursuance of the power conferred upon him under the said power of attorney the second defendant alienated under a sale deed dated 7 February, 1943, some of the items of property which are the subject-matter of the present suit. The stepbrother, the first defendant, instituted suit O.S. No. 51 of 1945, against the present plaintiff represented by her husband as the guardian-ad-litem for recovery of a large amount of money on foot of a promissory note alleged to have been executed in his favour by the plaintiff. That suit also was ultimately compromised whereunder the first defendant became entitled to recover a sum of nearly Rs. 12,000 and odd from the plaintiff. In the present plaint it is alleged in paragraph 4 that: the plaintiff" has been from birth a person of unsound mind in the sense that she was of very weak intellect and mental infirmity of such a character that she could not understand what she was doing and form a rational judgment as to the effect of her action on her own interests. The plaintiff has been in that condition all these years and continues to be so even now. On these allegations the power of attorney, the sale deed in favour of the first defendant by the second defendant and the compromise decree in O.S. No. 51 of 1945 were attacked in the plaint as void on the ground that at all material times the plaintiff was of unsound mind and was not in a position to understand the effect of the transactions. Reliefs appropriate to the allegations in the plaint were claimed in paragraph 15 of the plaint. The defendants 1 and 2 denied the allegations in the plaint by separate written statements and also questioned the right of the next friend to institute the suit on the ground that the plaintiff Ibrahim Ummal was not of unsound mind. It would be seen that practically the same allegations are the foundation for the attack against the sale deed and the compromise decree and the right of the next friend to institute the present suit. Therefore the question of the right of the next friend to institute the suit on behalf of Mohammad Ibrahim Ummal as well as the question of the validity and binding nature of the suit transactions are intimately connected and depend upon a decision of one issue of fact, viz-, whether the said Mohammad Ibrahim Ummal was of unspund mind or not as alleged in paragraph 4 of the plaint.

(3.) The mother died on the 24 December, 1946. Thereafter one Mohammad Thambi filed I.A. No. 23 of 1947 to add him as the next friend of Ibrahim Ummal and to permit him to conduct proceedings in the suit. On that application the learned Subordinate Judge made an order appointing him as the next friend as a result of an endorsement made on behalf of the defendants by their pleader on the petition (I.A. No. 23 of 1947) to the following effect: The defendants agree that without prejudice to the contentions of the defendants regarding the right of the present next friend to sue on behalf of the plaintiff and the question of the plaintiff's sanity or otherwise the petitioner may be appointed as next friend for the limited purpose of the enquiry as contemplated by Kasi Doss V/s. Kassim Sail .