{"id":247043,"date":"2007-03-22T00:00:00","date_gmt":"2007-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-n-s-sindha-madhar-vs-s-akkani-beevi-on-22-march-2007"},"modified":"2014-07-29T01:33:16","modified_gmt":"2014-07-28T20:03:16","slug":"p-n-s-sindha-madhar-vs-s-akkani-beevi-on-22-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-n-s-sindha-madhar-vs-s-akkani-beevi-on-22-march-2007","title":{"rendered":"P.N.S. Sindha Madhar vs S. Akkani Beevi on 22 March, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
P.N.S. Sindha Madhar vs S. Akkani Beevi on 22 March, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 22\/03\/2007\n\nCORAM :\n\nTHE HONOURABLE MR.JUSTICE S.RAJESWARAN\n\nC.R.P.PD.(MD).No.180 of 2007\nand\nM.P.(MD).No.1 of 2007\n\nP.N.S. Sindha Madhar\t\t... Petitioner\n\nVs.\n\n1. S. Akkani Beevi\n2. S. Mohammed Hanifa\n3. P.S.A. Parveen Banu\n4. P. Hariharan\n5. K. Renuka Devi\n6. T. Pappathi\n7. K. Petchiammal\n8. S. Jeyanthi\n9. K. Parvathi\n10. S. Tajudeen\n11. S. Jahangir\n12. The Sub Regisrtar\n    Madurai No.2\n    South District Registrar\n    Palace Road, Madurai -1.   \t... Respondents\n\t\n\nPrayer\n\n\nPetition filed under Article 227 of the Constitution of India to set\naside the Fair and Decreetal order dated 06.11.2006 made in I.A.No.576 of 2006\nin O.S.No.262 of 2006 on the file of the First Additional Sub-Judge, Madurai.\n\n\n!For Petitioners\t\t: Mr. M. Muthugeethaiyan\n\n\n^For Respondents R1,10&11\t: Mr. M. Vallinayagam\n\t\t  R2-9 \t\t: Mr. P. Subramaniam\n\t\t  R 12 \t\t: Mr. D. Gandhiraj, G.A\n\n:ORDER\n<\/pre>\n
\tThe plaintiff in O.S.No.262 of 2006 on the file of the First Additional
\nSub Judge, Madurai is the revision petitioner.\n<\/p>\n
\t2. The petitioner\/plaintiff filed O.S.No.262 of 2006 against the
\nrespondents herein for declaration, mandatory injunction, prohibitory injunction
\nand other reliefs in connection with the ‘A’ and ‘B’ schedule properties as
\nmentioned in the plaint.  The petitioner\/ plaintiff filed I.A.No.576 of 2006
\nunder Order 32 Rule 3, 15 and under Section 115 of C.P.C., to appoint a suitable
\nperson as next friend to the insane first defendant\/first respondent herein to
\nproceed and conduct the suit on behalf of her.\n<\/p>\n
\t3. It is stated by the petitioner\/plaintiff in the affidavit filed in
\nsupport of the application in I.A.No.576 of 2006 that the first defendant in the
\nsuit is an insane person for the past 40 years and the defendants 10 and 11
\n(Respondents 10 and 11 herein), who are the sons of the first defendant, created
\nsome document by taking advantage of the lunacy of their mother.  Hence the
\nsituation warrants a person, other than the defendant 10 and 11, is to be
\nappointed as a next friend of the first defendant.\n<\/p>\n
\t4. The first defendant herself filed a counter affidavit in I.A.No.576 of
\n2006 by stating that she is not an insane person.  She further stated that the
\nplaintiff is her younger brother and in order to grab her properties, the
\nplaintiff is alleging her as insane, knowing fully well that she is a sane
\nperson.  After filing a counter affidavit in I.A.No.576 of 2006 sworn on
\n24.07.2006, the first defendant has also filed a written statement in the suit,
\nwhich was verified by her on 20.08.2006.\n<\/p>\n
\t5. By order dated 06.11.2006, the trial Court dismissed I.A.No.576 of 2006
\nand aggrieved by the order, the above C.R.P. has been filed under Article 227 of
\nthe Constitution of India.\n<\/p>\n
\t6. Heard the learned counsel for the petitioner and the learned counsel
\nfor the respondent No.1,10 and 11 and the learned Government Advocate for the
\n12th respondent.  I have also gone through the documents and the judgments filed
\nand referred to by them in support of their submissions.\n<\/p>\n
\t7.  The learned counsel for the revision petitioner submitted that the
\nCourt below ought to have  examined the mental status of first respondent with
\nthe assistant of a Doctor before deciding the application.  As there was no
\nenquiry conducted by the Court below to ascertain the mental status of the first
\nrespondent, the order is to be set aside.  He relied on the decision of the
\nSupreme Court reported in 2003(2) CTC 276 (Kasturi Bai and Others Vs. Anguri
\nChaudhary) and the decision of this Court reported in 2006(4) CTC 657(C.S.
\nNavamani Vs. C.K.Sivasubramanian).\n<\/p>\n
\t8. Per Contra, the learned counsel for the first respondent and the
\nrespondent 10 and 11 submitted that the petitioner has no locus-standi to
\nmaintain the application under Order 32 Rule 3 and 15 of C.P.C and even
\notherwise, an enquiry was conducted by the trial Court by personally examining
\nthe first respondent in the open court.  He relied on the decision of Patna High
\nCourt reported in AIR 1985 PATNA 366 (Smt. Godawari Devi Vs. Smt. Radha Pyari
\nDevi and others).\n<\/p>\n
\t9. I have considered the rival submissions carefully with regard to the
\nfacts and citations.\n<\/p>\n
\t10. The stand of the revision petitioner, who is the younger brother of
\nthe first respondent, before the trial Court is that his elder sister is an
\ninsane person for the past 40 years.  It is also an admitted fact that first
\nrespondent has not been adjudged as an insane person in any previous
\nproceedings.\n<\/p>\n
\t11. Order 32 of C.P.C deals with suits by or  against minors and persons
\nof unsound mind.  Rule 15 of Order 32 is very relevant for the purpose of this
\ncase as this Rule stipulates that rules 1 to 14(except Rule 2A) shall, so far as
\nmay be, apply to persons adjudged before or during the pendency of the suit to
\nbe of unsound mind and shall also apply to persons who, though not so adjudged,
\nare found by the Court on enquiry to be incapable, by reason of any mental
\ninfirmity, of protecting their interest when suing or being sued.  Thus, Rule 15
\nof Order 32 deals with two types of persons namely (1) persons already adjudged
\nas persons of unsound mind and (2) persons who are not adjudged as persons of
\nunsound mind.  In so far as the  first category of persons concerned, there are
\nno difficulties in applying the provision of Order 32 of C.P.C.  In so far as
\nsecond category of persons concerned, the provisions of Order 32 will become
\napplicable only when the Court finds them on enquiry to be incapable of
\nprotecting their interest by reason of any mental infirmity.\n<\/p>\n
\t12. In the present case, the revision petitioner filed I.A.No.576 of 2006
\nto appoint a next friend to  defendant\/first respondent as she is an insane
\nperson for the past 40 years.  But the first respondent herself filed a counter
\naffidavit denying the same.  She has clearly mentioned in the counter affidavit
\nthat she had already appeared before the trial Court once, ie., on 18.07.2006
\nand her sworn statement was recorded by the Court.  Only after satisfying that
\nshe is a normal person, her vakalat was recorded by the Court on 18.07.2006.
\nShe has also referred to the earlier Court proceedings which was filed by her in
\nL.A.O.P.175 of 1984, O.S.No.1504 of 1986, O.S.No.125 of 1989 and A.S.No.75 of
\n1997.  Infact, O.S.No.125 of 1989 and A.S.No.75 of 1997 were jointly contested
\nby the revision petitioner and the first respondent herein and the revision
\npetitioner himself filed an affidavit in A.S.No.75 of 1997 on behalf of the
\nfirst respondent also.  It was not raised at that time that first respondent is
\nan insane person, even though the stand of the revision petitioner is that she
\nis an insane person for the past 40 years.  Before the trial Court, eight
\ndocuments were filed by the petitioner and 20 documents were filed on behalf of
\nthe first respondent and the trial Court after carefully evaluating the same to
\nthe conclusion that first respondent is not proved to be an insane person for
\nthe past 40 years and dismissed the application.\n<\/p>\n
\t13. The main contention of the revision petitioner is that no enquiry was
\nconducted by the trial Court by examining the mental status of first respondent
\nby a competent doctor before deciding the application.\n<\/p>\n
\t14. In 2003(2) CTC 276)cited supra), the Supreme Court held as follows:\n<\/p>\n
“Para 9. Shri Jain, therefore, has rightly submitted that the order of the
\nlearned Single Judge must be held to have merged with the order of the Division
\nBench.\n<\/p>\n
Order 32, Rule 15, C.P.C. Reads thus:\n<\/p>\n
“15. Rules 1 to 14(except rule 2A) to apply to persons of unsound mind – Rules 1
\nto 14(except Rule 2A) shall, so far as may be, apply to persons adjudged, before
\nor during the pendency of the suit, to be of unsound mind and shall also apply
\nto persons who, though not so adjudged, are found by the Court on enquiry to be
\nincapable, by reason of any mental infirmity, of protecting their interest when
\nsuing or being sued.”\n<\/p>\n
Para 10. On a bare perusal of the said provision, it is evident that the Court
\nis empowered to appoint a guardian in the event a person is adjudged to be of
\nunsound mind.  It further provides that even if a person is not so adjudged but
\nis found by Court on inquiry to be incapable of protecting his or her interest
\nwhen suing or being sued by reason of any mental infirmity, an appropriate order
\nthereunder can be passed.  The respondent did not contend that appellant No.1,
\nherein is of unsound mind.  As noticed herein before, the respondent herself had
\nfiled an application before the trial Court for holding an inquiry to the effect
\nthat she suffers from mental infirmity.\n<\/p>\n
Para 11. The learned trial Court refused to do the same and in that view of the
\nmatter the High Court, in our opinion, while setting aside the said order could
\nonly issue a direction directing the learned trial Judge to hold an inquiry so
\nas to enable it to arrive at a finding as to whether the respondent herein was
\nincapable of protecting her interest by reason of any mental infirmity or not.
\nAs no such inquiry was held, there cannot be any doubt whatsoever that the
\nlearned Single Judge committed a jurisdiction error in passing the impugned
\njudgement which, the Division Bench as noticed hereinbefore upheld.”\n<\/p>\n
\t15. In 2006(4) CTC 657 (cited supra) this Court held as under:\n<\/p>\n
“Para.24. The enquiry contemplated under Order 32, Rule 15, is mandatory, to
\nascertain the mental state of mind of a person, before he is adjudged as unsound
\nor mentally infirm, The word “enquiry” used in the provision means, “to make an
\nexamination”, to adjudge a person judicially as a lunatic or mentally infirm.
\n“Adjudge” means, “to decide or to determine judicially”, which means that there
\nmust be adequate materials to come to such conclusion, that a person has to be
\nrepresented by a guardian.\n<\/p>\n
Para.25. When there is an allegation of unsound mind or mental infirmity, it is
\nthe duty of the Court to examine the individual and if necessary, seek the
\nassistance of an expert to adjudge as to whether the individual is having a
\nsound mind and capable of managing the affairs.  As a precaution, the evidence
\nof expert in the Medical profession will be useful in understanding the meaning
\nand the symptoms of an6y disease dealing with mental deterioration.\n<\/p>\n
Para 26. In the present case, such a course has not been followed and therefore,
\nthere is no doubt that the Court below has failed to adjudge the respondent as
\nmentally infirm, necessitating the appointment of a guardian.  Equally while
\nremoving the Court guardian the lower Court has simply observed that the
\nrespondent had appeared before the Court and shown his mental faculties and is
\ncapable of defending himself.  Not even questions were posed to the respondent
\nto ascertain as to whether he can understand and answer the same.  Mental
\nfaculty is a broad term and it is beyond comprehension as to how the Court below
\ncan come to any conclusion by mere observation, particularly when the respondent
\nhad suffered from loss of memory, etc.<\/p>\n
\t16. Relying on the above two decisions, the learned counsel for the
\nrevision petitioner contended that first respondent should be subjected to
\nmedical examination to adjudge as to whether she is having a sound mind.  In AIR
\n1985 PATNA 366 (cited supra) a Division Bench of the Patna High Court held that
\nthe issue of the mental stability of a person who has not been adjudged as
\ninsane in an earlier proceedings is a matter entirely between the Court and the
\nparty alone and nobody else has any vested interest or right to agitate the
\nunsoundness of mind of his opponent.  The relevant portion of the judgment reads
\nas under:\n<\/p>\n
“Para 6. It is common ground that herein we are not dealing with the category of
\npersons adjudged to be of unsound mind.  That different considerations would be
\nattracted in their case is patent and, therefore, this category may, for all
\npurposes, be left altogether apart.  Adverting now to the second category, it
\nseems plain that the issue of unsoundness of mind of the parties in this class
\nis primarily betwixt the Court and the party and is certainly not a lis betwixt
\nthe parties themselves.  The legislature in its wisdom has conferred a larger
\nand paternal power on the Court to see that each party has the capacity to
\nsafeguard its legal interest and is no way handicapped by reason of any mental
\ninfirmity.  It is equally significant to notice that this broad-based power
\nextends in cases of any mental infirmity and is not necessarily governed by the
\nextreme situation of a person being of unsound mind altogether.  To my mind,
\nthis beneficial and, indeed, paternal power is wholly vested in the Court and it
\nis in its discretion alone, where it finds that any one of the parties is
\nsuffering from a weakness of mind, to proceed for taking steps to safeguard the
\ninterest of such a party.  To use the language of another jurisdiction, namely,
\nthat of contempt, the list herein is betwixt the Court and such a party and not
\nbetwixt the opposite parties as such.  As has been said in that jurisdiction,
\nthe issue of contempt is primarily between the Court and the contemner, and even
\nmore so under.  O 32 R.15 in its second category, it is a matter entirely
\nbetween the Court and the party alone and nobody else has any vested interest or
\nright to agitate the unsoundness of mind of his opponent in this class.  To put
\nit tersely, it is not an issue betwixt the parties and neither the plaintiff nor
\nthe defendant has the locus standi to challenge or question the soundness of
\nmind of the opposite side and claim an adjudication thereon at the very
\nthreshold.  If this were to be so permitted in this field, there would, perhaps,
\nbe no end to allegations and counter allegations in this regard and its misuse
\nwould be capable of working grave public mischief.”\n<\/p>\n
\t17. Relying on the above decision, the learned counsel for the first
\nrespondent submitted that as the Court was satisfied that the first respondent
\nis sane person, it is not for the revision petitioner to challenge the same.\n<\/p>\n
\t18. In the decision reported in 2003 (2) CTC 276 (cited supra)the person
\nherself filed an application before the trial Court for holding an enquiry to
\nthe effect that she suffers from mental infirmity.  In the other decision
\nreported in 2006(4) CTC 657 (cited supra), an application has been filed under
\nOrder 32 Rule 4 and 15 to appoint a guardian to the respondent as he is an
\ninsane person and the trial Court proceeded exparte and without examining the
\nrespondent appointed a Court guardian.  Thereafter, the respondent filed an
\napplication to set aside the order of appointment of guardian as he has
\nrecovered from his mental illness and the trial Court removed the guardian.
\nOnly in the above said of facts, decisions were given by the Supreme Court as
\nwell as our High Court and the facts in these decisions are easily
\ndistinguishable.\n<\/p>\n
\t19. In the present case, it was asserted by the revision petitioner that
\nthe 1st respondent has been an insane person for the past 40 years.  But the
\nrevision petitioner himself along with the first defendant defended Court
\nproceedings together from 1989 to 1997 in O.S.No.125 of 1989 and A.S.No.75 of
\n1997.  Infact, when the lands of the petitioner and the first respondent were
\nacquired by the Government, both of them appeared before the Special Tahsildar
\nfor enquiry proceedings.  In such circumstances, there is no bonafide on the
\npart of the revision petitioner in contending that first respondent has been an
\ninsane person for the past 40 years.  Moreover, even before recording the
\nvakalat filed by the counsel on behalf of the first respondent, the first
\nrespondent appeared before the trial Court on 17.10.2006 and her mental
\nstability was gone into at that time by the Court and only after getting satisfy
\nthat the first respondent is not an insane person, the trial Court permitted the
\ncounsel to appear on behalf of the first respondent.  Therefore,  it  cannot  be
\nsaid  that   there  was  no
\nS. RAJESWARAN, J.\n<\/p>\n
ARUL
\nenquiry  at  all  by the Court to ascertain the mental condition of the first
\nrespondent.  Further subjecting a person, to medical examination is not
\ncompulsory in all the cases and only if necessary a person could be subjected to
\nmedical examination.\n<\/p>\n
\t20. I am satisfied that there are  adequate materials to prove that the
\nclaim of the revision petitioner is not bonafide and there is no illegality in
\nthe order of the trial Court warranting interference under Article 227 of the
\nConstitution of India.\n<\/p>\n
\t21. In the result, there are no merits in the above Civil Revision
\nPetition and the same is dismissed.  No Costs.  Consequently, connected M.P. is
\nalso closed.\n<\/p>\n
ARUL<\/p>\n
To
\nThe First Additional Sub Judge,
\nMadurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court P.N.S. Sindha Madhar vs S. Akkani Beevi on 22 March, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22\/03\/2007 CORAM : THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.PD.(MD).No.180 of 2007 and M.P.(MD).No.1 of 2007 P.N.S. Sindha Madhar … Petitioner Vs. 1. S. Akkani Beevi 2. S. Mohammed Hanifa 3. P.S.A. Parveen […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-247043","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nP.N.S. Sindha Madhar vs S. 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