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2017 DIGILAW 594 (CAL)

Mahendra Kumar Karnani v. Radha Devi Karnani

2017-07-07

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Nishita Mhatre, J. 1. This appeal is directed against the order passed by the learned Single Judge on 8th August, 2016. By the impugned order, the learned Single Judge has directed the Special Officer who was appointed by an order dated 14th May, 2015 to act as a commission to ascertain if Radha Devi, the plaintiff/respondent is capable of deciding for herself whether legal steps should be taken in respect of any of her properties. The commission is to act in the presence of a Senior General Physician nominated by the Superintendent or In-charge of the S.S.K.M Hospital. 2. Radha Devi Karnani, the plaintiff/respondent was widowed in 1966. One of her sons, Rajendra pre-deceased Radha Devi. His property has devolved on his two daughters, Rashmi Bubna, Shrutika Doshi (deceased), besides his mother, Radha Devi. Radha Devi then executed a Gift Deed in favour of Mahendra, the appellant herein, her youngest son by which the property of Rajendra which devolved on her was gifted to Mahendra. 3. Rashmi, the grand-daughter of Radha Devi through Rajendra, filed the present suit, claiming to be the next friend of Radha Devi, praying for the cancellation of the Gift Deed. It has been pleaded in the plaint, inter alia, that Radha Devi was mentally feeble being over 90 years of age and that she was not in a position to take any independent decisions with respect to herself, much less her properties. Therefore the gift deed executed in 2012 in favour of Mahendra, who lived with his mother, was not valid. 4. An application being G.A. No. 1575 of 2015 has been filed by Rashmi praying that an enquiry be conducted by the Court by examining the plaintiff to satisfy itself regarding the existence of circumstances which require the appointment of a next friend to protect the plaintiff’s interest in suing the respondent, in terms of Order 32 Rule 15 of the Code of Civil Procedure. An order was passed on 14th May, 2015 appointing the Special Officer. On 8th June, 2015 the Special Officer submitted her report and pursuant to the order passed by the learned Single Judge, the appellant filed an affidavit-in-opposition to the application being G.A. No. 1575 of 2015. An order was passed on 14th May, 2015 appointing the Special Officer. On 8th June, 2015 the Special Officer submitted her report and pursuant to the order passed by the learned Single Judge, the appellant filed an affidavit-in-opposition to the application being G.A. No. 1575 of 2015. An affidavit affirmed by Radha Devi has been annexed to the affidavit-in-opposition in which she states that she did not intend to file any suit against Mahendra nor had she ever instructed Rashmi to file any suit or application on her behalf nor had she permitted her to act as her next friend. Rashmi has filed an affidavit-in-reply contesting the claim made in the affidavit-in-opposition. 5. G.A. No. 1840 of 2015 has been filed by the appellant for rejection of the plaint or in the alternative, for dismissal of the suit. Both the aforesaid applications being G.A. No. 1575 of 2015 and G.A. No. 1840 of 2015 were heard together by the learned Single Judge when the impugned order was passed. 6. The Special Officer’s report indicates that Radha Devi was in no apparent physical discomfort and was aware of her surroundings. She also answered questions lucidly and without hesitation. In Paragraph No. 10 of her report, the Special Officer has mentioned that on being asked whether she knew anything about the family business or property, Radha Devi replied in the negative and stated that whenever her sons requested her to sign any document, she did so and she did not involve herself in the family business or properties. She stated that she was not interested in the details relating to either the business or property of the family or any bank work. 7. In these circumstances, the learned Single Judge has passed the impugned order in which he has permitted 10 to 15 questions to be put to Radha Devi on behalf of Rashmi and 10 questions on behalf of Mahendra, primarily to ascertain whether Rashmi or any other close relative of Radha Devi or a rank outsider should be appointed as next friend and given charge of proceedings if the suit requires to be continued at all. The learned Judge has further directed that a Senior General Physician nominated by the Superintendent or In-charge of the S.S.K.M Hospital to accompany the Special Officer to visit Radha Devi so that Radha Devi may be examined on commission with the Special Officer discharging the responsibility of a commission. The doctor so appointed were requested to be present during the proceedings of the commission. 8. Taking exception to this order, Mahendra has filed the present appeal. The principle argument on behalf of Mahendra is that when the Special Officer had submitted her report indicating that Radha Devi was not mentally feeble, there was no need for any further investigation into her mental state. The learned Counsel for the appellant submitted that when one learned Judge of this Court had, by the Order dated 14th May, 2015, appointed the Special Officer to assess the mental and physical capacity of Radha Devi and the Special Officer had already submitted her report on 8th June, 2015, the contents of which were not challenged, there was no need for a further exercise of appointing a commission. The learned Counsel has pointed out an affidavit submitted by Radha Devi where she denied the right of Rashmi to represent her as next friend, and has also denied all the allegations made by Rashmi regarding her mental abilities. The learned Counsel submitted that there is litigation pending between Rashmi and Mahendra, the appellant herein and by filing the present suit, Rashmi had sought to fire a salvo at Mahendra by making use of Radha Devi. It was further argued that the learned Judge by passing the impugned order ignored the fact that the enquiry by the Court contemplated under Order 32 Rule 15 of the Code of Civil Procedure (CPC) had already been completed when a Special Officer was appointed by the Order of 14th May, 2015 and she had submitted her report. Apart from this, the learned Counsel submitted that Radha Devi was about 95 years old today and therefore subjecting her to any further examination would be a torture for her which could irreparably injure her. 9. The learned Counsel appearing for Rashmi has raised a preliminary objection to the maintainability of the appeal. He submitted that unless the plaint is admitted, the question of filing an appeal does not arise. 9. The learned Counsel appearing for Rashmi has raised a preliminary objection to the maintainability of the appeal. He submitted that unless the plaint is admitted, the question of filing an appeal does not arise. According to him, the suit is at the threshold and at this stage it is for the Court to decide, after conducting an enquiry as contemplated under Order 32 Rule 15 of the CPC, as to whether the suit could be permitted to be filed through the next friend, Rashmi. The learned Counsel pointed out that Order 43 Rule 1 does not contemplate the filing of an appeal such as the present one and therefore according to him, the appeal should be dismissed in limine. Apart from the preliminary objection the learned Counsel had raised, he submitted that an enquiry contemplated under Order 32 Rule 15 requires the Court to assess whether the plaintiff is suffering from any mental infirmity for which the guardian is required to be appointed for protecting the interest of the plaintiff. The learned Counsel submitted that the impugned order was passed in furtherance of the provisions of Order 32 Rule 15 and therefore, it should not be set aside. Reliance has been placed on the judgments of the Bombay High Court in the case of Somnath Dnyanoba Mahapure Vs. Tipanna Ramchandra Jannu reported in AIR 1973 Bombay 276 and of the Karnataka High Court in the case of V.M. Gampa & Anr. Vs. Shivasharanappa reported in ILR 1999 KAR 3430. After hearing the Counsel for the parties and on our anxious consideration of the matter, we are of the view that the appeal is not maintainable. 10. Order 32 Rule 15 of the CPC reads as follows: "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 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." 11. Rules 1 to 14 of Order 32 speak about a suit being filed by or against a minor and the protection offered to such minor persons by appointing a guardian. Rules 1 to 14 of Order 32 speak about a suit being filed by or against a minor and the protection offered to such minor persons by appointing a guardian. The same rules are made applicable for appointing a guardian in respect of a person with mental infirmity or who has an unsound mind under Order 32 Rule 15. Under Rule 4 of Order 32, a person may be appointed as a guardian of one who is mentally infirm provided that the person does not have an adverse interest to the plaintiff. The Court may appoint any of its officers to be such guardian if it finds that the person seeking to file a suit as the next friend of the person with unsound mind or who is mentally infirm is not the appropriate person. It is the bounden duty of the Court where the suit is filed on behalf of a person who is mentally infirm to assess whether he/she is capable of protecting his/her own interest when suing or being sued. It is only after such an enquiry is completed that the plaint is admitted. Therefore, an appeal against an order passed in a suit which has been conceived but where process is yet to be issued is not maintainable. 12. Rule 15 of Order 32 of the CPC consists of two parts: the first part comes into play when the plaintiff has already been adjudged as a person of unsound mind and the second which is applicable to a person who has not been adjudged by any Court as one of unsound mind but who is mentally infirm. After an enquiry by the Court, if it is found that the person is incapable, by reason of his mental infirmity, of protecting his interest while suing or being sued, a person may be appointed as his next friend. In the present case, Radha Devi has not been adjudged as a person of unsound mind. However, in view of the statements made in the plaint, it was felt necessary by the learned Single Judge that the mental ability of Radha Devi needs to be assessed. This was the right procedure followed by the learned Single Judge. 13. In the present case, Radha Devi has not been adjudged as a person of unsound mind. However, in view of the statements made in the plaint, it was felt necessary by the learned Single Judge that the mental ability of Radha Devi needs to be assessed. This was the right procedure followed by the learned Single Judge. 13. In Somnath Dnyanoba Mahapure (supra), a Division Bench of the Bombay High Court has held that an ex-parte enquiry is required to be conducted by the Court for giving a finding with respect to the mental infirmity or otherwise of the plaintiff when the suit is filed by the next friend of such a person. The Court is required to give such a finding before the plaint is admitted and process is issued. However, after the process has been issued and the defendant appears, it would be open for the defendant to point out that the next friend who has filed the suit on behalf of the adult who is mentally infirm is not the right person to represent him and then, it would be the duty of the Court to appoint anyone else whether a relative or a Court’s officer or another to represent the person whose mental faculties are feeble and infirm. The Division Bench of the Bombay High Court has observed that the enquiry conducted by the Court on finding that a statement has been made in the plaint regarding the mental faculties of the plaintiff for which the suit has been filed through the next friend. During the course of enquiry, ordinarily the plaintiff should be questioned by the Court. If the Court entertains a doubt about mental capacity or the soundness of the mind of the plaintiff, it is open to the Court to take further assistance in the form of medical examination and the evidence of a doctor under whose observation the plaintiff may be kept. The extent of the enquiry is to be decided in accordance with each case. 14. With respect, we agree with the view taken by the Bombay High Court. The steps taken by the learned Single Judge in the order dated 14th May, 2015 are in accordance with the principles laid down and on a proper interpretation of Order 32 Rule 15. 14. With respect, we agree with the view taken by the Bombay High Court. The steps taken by the learned Single Judge in the order dated 14th May, 2015 are in accordance with the principles laid down and on a proper interpretation of Order 32 Rule 15. By the impugned order, the learned Single Judge has merely thought it fit to assess the mental faculties of the plaintiff with a doctor observing the enquiry. We do not find this decision of the learned Single Judge to be contrary to law. 15. Similarly, in V.M. Gampa & Anr. (supra), the learned Single Judge of Karnataka High Court has held that it is a pre-requisite in a suit sought to be filed by the next friend that the Court should on its own conduct an enquiry in accordance with the provisions of Order 32 Rule 15 of the Code of Civil Procedure before accepting the plaint in the name of a person with unsound mind or with feeble mental faculties. It is only after such an enquiry if the Court is satisfied, then the plaint can be accepted and process can be issued to the defendants. The defendants thereafter can challenge the statements in the plaint regarding the mental infirmity of the plaintiff. The issue then can be tried by the Court. 16. In the present case, it is apparent that the learned Single Judge by passing the impugned order only wished to assess the mental faculties of the plaintiff. The nature of enquiry has also been mentioned in the impugned order. We do not therefore find that there is any reason to interfere with the impugned order even on merit. 17. In the circumstances, the appeal is not maintainable as the plaint has not been admitted as yet for summons to be issued. Therefore, no appealable order has been passed and consequently, the appeal is not maintainable. 18. The appeal is dismissed. 19. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities. Tapabrata Chakraborty, J. Later Since the Special Officer, appointed earlier, has recused herself from this matter, we appoint Ms. Mamta Bhargav, learned advocate, to act as Special Officer on the same terms and conditions mentioned in the order impugned. Tapabrata Chakraborty, J. Later Since the Special Officer, appointed earlier, has recused herself from this matter, we appoint Ms. Mamta Bhargav, learned advocate, to act as Special Officer on the same terms and conditions mentioned in the order impugned. We expect the Special Officer to have a conversation with Radha Devi Karnani to become acquainted with her. Thereafter the proceedings of the Commission will commence as indicated in the impugned order. The entire exercise should be completed within two weeks from today.