Malu Amma and Others v. K.P. Mani and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 30TH DAY OF APRIL 2024 / 10TH VAISAKHA, 1946** ## **RSA NO. 583 OF 2012** **AGAINST THE JUDGMENT DATED 4.10.2011 IN AS NO.185 OF 2009 OF** **I ADDITIONAL SUB COURT, KOZHIKODE ARISING OUT OF JUDGMENT DATED 25.6.2007 IN OS NO.84 OF 2006 OF ADDITIONAL MUNSIFF** ## **COURT-I,KOZHIKODE** ## **APPELLANTS/RESPONDENTS 1 TO 5/DEFENDANTS 1 TO 5:** - **1 MALU AMMA D/O.UNICHIRA AMMA, RESIDING AT KALLUKUTHI PARAMBA, KARAPARAMBA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK.** - **2 BHANUMATHI AMMA W/O.R.K.NAIR, RESIDING AT KALLUKUTHI PARAMBA, KARAPARAMBA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK.** - **3 SUDHEESH S/O.R.K.NAIR, RESIDING AT KALLUKUTHI PARAMBA, KARAPARAMBA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK.** - **4 SUNITHA D/O.R.K.NAIR, RESIDING AT KALLUKUTHI PARAMBA, KARAPARAMBA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK.** - **5 SUBHASH** - **S/O.R.K.NAIR, RESIDING AT KALLUKUTHI PARAMBA, KARAPARAMBA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK.** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENTS/APPELLANTS AND R6 IN AS/PLAINTIFF AND D6 IN OS:** ***1 K.P.MANI (MENTALLY INFIRM PERSON)REPRESENTED BY AND ACTING THROUGH HER NEXT FRIEND AND ELDER BROTHER K.P.JEEVAN, THE 2ND RESPONDENT RESIDING AT KALLUKUTHIPARAMBA KARAPABRAMA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE-673010. (ORIGINAL** R.S.A.No.583 of 2012 2 **GUARDIAN IS SUBSTITUTED WITH NEW GUARDIAN). GUARDIAN OF R1 IS SUBSTITUTED WITH THE FOLLOWING GUARDIAN: SRI.SUNIL,S/O.DAMODARAN NAIR,RESIDING AT KARUVISSERI AMSOM,KARUR DESOM OF KOZHIKODE TALUK. (IS APPOINTED AS THE GUARDIAN OF THE 1ST RESPONDENT IN PLACE OF THE DECEASED GUARDIAN OF THE 1ST RESPONDENT AS PER THE ORDER DATED 16.06.2014 IN IA.1466/2014)** **** R3 IS APPOINTED AS NEW GUARDIAN** ****[R3 IS APPOINTED AS NEW GUARDIAN AND NEXT FRIEND OF R1 AS PER ORDER DATED 02.02.2022 IN IA.1/2022]** ***2 K.P.JEEVAN,** **S/O.LAKSHMANAN, RESIDING AT KALLUKUTHIPARAMBA, KARAPABRAMA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE-673010. (DIED, LRS RECORDED)** ***(R1 AND R3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS PER THE ORDER DATED 07.12.2020 VIDE MEMO DATED 01.12.2020)** ****3 K.P.ANITHA D/O.LAKSHMANAN, RESIDING AT KALLUKUTHIPARAMBA, KARAPARAMBA, KACHERI AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE-673010.** **BY ADV T.G.RAJENDRAN** **SRI V.RAMKUMAR NAMBIAR (AMICUS CURIAE)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2023, THE COURT ON 30.04.2024 DELIVERED THE FOLLOWING:** R.S.A.No.583 of 2012 3 **T.R. RAVI, J.** **-------------------------------------------R.S.A.No.583 of 2012 -------------------------------------------Dated this the 30th day of April, 2024** ## **JUDGMENT** Defendants 1 to 5 in O.S.No.84 of 2006 on the file of the 1st Additional Munsiff Court-I, Kozhikode have filed this second appeal. The suit was filed by respondents 1 and 2 in this second appeal. The 3rd respondent in the second appeal was the 6th defendant in the suit. The properties originally belonged to one Sri Perachan. On the death of Sri Perachan, the property devolved on his sons Lakshmanan and Raghavan. Raghavan did not marry and on his death Lakshmanan became the absolute owner of the property. Lakshmanan had five children in his wife Meenakshi, named Shyamala, Rajan, Mani, Jeevan and Anitha. Shyamala sold her 1/6th right over the plaint schedule property to one Prabhakaran Nair and one Sathi Amma as per Ext.B5 document dated 30.01.1974. Thereafter, Rajan and Meenakshi on her own behalf and representing the 2nd plaintiff and the 6th defendant, who were minors at that time and the 1st plaintiff who is stated to be mentally unsound, released their undivided share over the plaint schedule properties to Prabhakaran Nair and Sathi Amma as per Ext.B7 document dated 7.4.1974. Sri Prabhakaran Nair and R.S.A.No.583 of 2012 4 Smt.Sathi Amma thereafter assigned their right over the properties to the 1st defendant and to one Ramankutty Nair, who is the predecessor-in-interest of defendants 2 to 5 as per Exts.B8 and B9 executed on 9.6.1976 and 20.6.1976. From 1976 onwards, the appellants have been in possession and enjoyment of the property. 30 years later, in 2006, the plaintiffs filed O.S.No.84 of 2006 for declaration and partition. It is contended that the plaintiffs between themselves are entitled to 1/3rd share of the property and the 6th defendant is entitled to 1/6 share in the property. The suit is laid on the ground that no permission of the court was sought under the Hindu Minority and Guardianship Act or under the Indian Lunacy Act, before the execution of the release deed by Meenakshi, the mother of the plaintiffs, and on account of lack of sanction, the release deed is not valid and is void. 2. The defendants filed a written statement contending that the relief sought is barred by limitation. It is contended that the 2nd plaintiff was not looking after the affairs of the 1st plaintiff who is claimed to be a lunatic. It is contended that the 2nd plaintiff became a major in the year 1983 and the 6th defendant became a major in the year 1981 and neither of them had challenged the correctness of the execution of the release deed by their mother. It R.S.A.No.583 of 2012 5 th was contended that the mother of the plaintiffs and the 6 defendant had executed the release deed for the benefit and welfare of the minors and the 1st plaintiff and to pay off debts, in her capacity as the 'Karanavathi' of the family. It is also contended that the property was purchased by the 1st defendant and her brother for sufficient consideration and they were in continuous possession openly and as of right. 3. Before the trial court, the 2nd plaintiff gave evidence as PW1 and Exts.A1 to A3 were marked. On the side of the defendants, the 1st defendant gave evidence as DW1 and Exts.B1 to B14 were marked. Ext.B1 is the document dated 11.11.1927 which was executed by one Veeran in favour of Perachan. Ext.B3 is the registered mortgage deed executed by the predecessor-in-interest of the plaintiffs Lakshmanan in favour of one Lakshmi and another on 23.07.1971. The mortgage was redeemed as per Ext.B4 document dated 14.2.1974 by Meenakshi. Ext.B5 is the registered Kanam assignment deed executed by Shyamala in favour of Prabhakaran Nair and another on 30.1.1974. Ext.B6 is the registered gift deed executed in favour of Meenakshi by Devaki on 24.2.1974. It is thereafter that Ext.B7 document was executed on 7.4.1974 whereby Meenakshi and four others released their rights R.S.A.No.583 of 2012 6 in favour of Prabhakaran Nair and another. It is relevant to note that since the properties involved in the release deed were executed representing minors, the mother of the plaintiffs had included her self-acquired property in the schedule of the document, as security for the sale, in case release of the properties were found to be in any manner bad in law. Admittedly, the legal representatives of Meenakshi had disposed of the properties which were included as security, before the filing the suit. As such, the required security has also lost as far as the purchasers were concerned. The 1st appellant and the predecessor in interest of appellants 2 to 5 had also obtained purchase certificates on 25.5.1978 as can be seen from Ext.B10. The 6th defendant had approached the DLSC claiming partition. However, the claim was dismissed. It is thereafter that the present suit was filed by the plaintiffs, the 1st plaintiff being represented by the 2nd plaintiff as next friend. Even though initially the suit was filed by including both the items involved in Ext.B7 document, later, the item which had been included as security, was removed having regard to the fact that the said item had already been sold by the legal representatives of Meenakshi. 4. The trial court dismissed the suit finding that the suit R.S.A.No.583 of 2012 7 was hopelessly barred by limitation. Regarding the question whether the release deed was bad for the reason that the 1 st plaintiff was a lunatic, the trial court held that the 1st plaintiff was only a deaf and dumb person and not a 'lunatic' as defined under the Indian Lunacy Act, 1912, which was governing the field at the time of execution of the release deed. The court also held that it was a document executed by the Karanavathi and the same is binding on the family. 5. The appeal filed by the plaintiffs before the First Appellate Court was allowed and the judgment and decree of the trial court was reversed and the suit was decreed. The First Appellate Court found that the 1st plaintiff is an idiot coming within the definition of 'lunatic' under the Indian Lunacy Act and the transfer without getting sanction was bad in law. It is aggrieved by the judgment of the First Appellate Court that the defendants 1 to 5 have preferred this appeal. At the time of admission, this Court had issued notice on the substantial questions of law formulated in the memorandum of second appeal. The questions formulated are as follows; - “(i) Was the lower appellate court correct in invoking the provisions of the Indian Lunacy Act, which has been repealed to hold that the document executed by the R.S.A.No.583 of 2012 8 guardian of a minor is void? - (ii) What are the authorities of a guardian appointed by the court Order 32 Rule 15 of the Code? Can he/she file a suit to set aside a document executed against the interest of such a person on the basis of such an appointment? - (iii) Isn't only a guardian appointed under the Mental Health alone capable of instituting a suit to set aside a document in which a mentally ill person has a right? - (iv) Can a person who is deaf and dumb be called a mentally ill person? If the 4th question framed is answered in favour of the appellant, there will be no necessity to go into the other questions. 6. As far as the claim based on lack of permission under the Hindu Minority and Guardianship Act is concerned, there can be no dispute that the claim is hopelessly barred by limitation. Admittedly, the 2nd plaintiff and the 6th defendant who were minors had not approached the court within the time specified in the Limitation Act for challenging the transfer effected by their mother at the time they were minors. The only question is whether the 1 st plaintiff can be treated as a 'lunatic' under the definition of the Indian Lunacy Act and whether the document executed by the mother is bad for the reason of not obtaining sanction. The First Appellate Court relied on the recitals in Ext.B7 document and the R.S.A.No.583 of 2012 9 evidence tendered by PW1 who is the 2nd plaintiff and brother of the 1st plaintiff. The First Appellate Court in paragraph 10 held that the suit filed by the 2nd plaintiff and the claim of the 6th defendant was barred by limitation. At the same time, it was held that Ext.B7 does not show that the document was executed as Karanavathi of the family. The court further found that what is stated regarding the mental condition of the 1st plaintiff is 'Budhisoonyatha' which is synonymous to 'idiot' and hence the 1st plaintiff comes within the definition of 'lunatic' under the Indian Lunacy Act. The court has further stated that not even a single suggestion is put to PW1 to the effect that the 1st plaintiff is not an 'idiot'. 7. I have gone through the documents in question and the evidence of PW1 and I find that what has been stated by the First Appellate Court is not factually correct. The First Appellate Court has reversed the findings of the trial court solely based on the statement in the proof affidavit of PW1 and has not gone through the cross-examination of the witnesses. PW1 when cross-examined has clearly admitted that the 1st plaintiff was looking after her own affairs and she did not need anybody's help as far as her routine activities are concerned. It is further stated that she cannot speak or hear and that she can understand when she is spoken to by the R.S.A.No.583 of 2012 10 members of the family, but cannot understand when it comes to strangers. He further admits that the 1st plaintiff was not under any treatment for any mental illness and she was residing with the mother at the time when DW1 was examined. As a matter of fact, what has been stated by PW1 does not support the contention that the 1st plaintiff is an 'idiot'. Instead, it only says that the 1st plaintiff is a deaf and dumb person. The finding of the trial court is also to the said effect based on the evidence. The First Appellate Court has misdirected itself and has not read through the entire evidence of PW1 and has sought to reverse the judgment of the trial court solely based on the statement in the proof affidavit. I find that the said method is perverse and cannot be supported. In **Yadarao Dajiba Shrawane v. Nanilal Harakchand Shah [(2002) 6 SCC 404],** the Hon’ble Supreme Court has held that the position is well settled that when the judgment of the final court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence, the High Court in second appeal is entitled to interfere with the judgment. A finding of fact ignoring the statements made by a witness in the cross examination and solely based on the statements in the proof affidavit, is vitiated in law. There was no reason for the First Appellate Court, for reversing the finding of the R.S.A.No.583 of 2012 11 trial court that the 1st plaintiff was a deaf and dumb person and not an “idiot” so as to term her as a “lunatic” under the Indian Lunacy Act. The 4th question formulated is hence answered in favour of the appellant and it is held that a deaf and dumb person cannot be a mentally ill person or an idiot so as to come within the definition of the term 'lunatic' under the Indian Lunacy Act. 8. Another reason stated by the First Appellate Court is that the trial court had actually found the question of lunacy in favour of the 1st plaintiff as per its decision on the first issue which had been raised before the trial court. There-again the First Appellate Court did not consider the later part of the judgment wherein the trial court had clearly stated that the court was not competent to decide on the question of lunacy and the finding rendered was only for the purpose of Order 32 Rule 15 of the Code of Civil Procedure, 1908, to hold whether the 1st plaintiff was capable/incapable for looking after her own affairs and whether she needs a representation through a guardian/next friend. The court has specifically found that the scope of enquiry is very limited and cannot be treated as an adjudication under the Mental Health Act or under the Lunacy Act. This finding has also been lost sight of by the First Appellate Court. It is settled law that for the purpose of Order 32 Rule 15 CPC, there is no requirement that the person should have a mental R.S.A.No.583 of 2012 12 disorder or insanity or mental illness and even a deaf and dumb person can be a person who needs the representation through the guardian/next friend. [See **Raveendran v. Sobhana (2008 (1) KLT 488)** ]. That the enquiry is limited has also been held in **Roy Thomas v. Lekha Roy [2019 (1) KLT 957]** . In view of my finding that the 1st plaintiff cannot be stated to be a lunatic as defined under the Indian Lunacy Act, the document executed by the guardian of the minor cannot be held as void. There is no necessity to go into questions (ii) and (iii) formulated as substantial questions of law. 9. In the above circumstances, the decree and judgment of the First Additional Sub Court, Kozhikode in A.S.No.185 of 2009 is set aside. The Second Appeal is allowed and the suit O.S.No.84 of 2006 on the file of the 1st Additional Munsiff Court-I, Kozhikode is dismissed. **==> picture [320 x 54] intentionally omitted <==** Sd/- **T.R. RAVI JUDGE** dsn