Noble Educational and Charitable Trust v Mercy and others

1 OP(C) No.1026 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 ``` ## **`OP(C) NO. 1026 OF 2022`** ## **`AGAINST THE COMMON ORDER IN IA NOS 1 AND 2 OF 2021 IN OS 221/2017 OF MUNSIFF`** ## **`COURT,MUVATTUPUZHA`** ## **`PETITIONER/S:`** ``` NOBLE EDUCATIONAL AND CHARITABLE TRUST,REGISTERED OFFICE AT 32/1277 A-2,2ND FLOOR, NOBLE HOUSE, PALARIVATTOM,COCHIN - 682 025,REPRESENTED BY ITS CHAIRMAN, DULY AUTHORISED FORMER JOINT SECRETARY MR. JORY MATHAI, S/O. LATE ABRAHAM MATHAI, AGED 67 YEARS, KARAMEL KOYEKEL HOUSE, KARIKODE P.O, PERUVA, KOTTAYAM, PIN - 686610 ``` ``` BY ADVS. ``` ``` MILLU DANDAPANI,ROY THOMAS (MUVATTUPUZHA),SUMATHY DANDAPANI (SR.) ``` ## **`RESPONDENT/S:`** - `1 MERCY,AGED 69 YEARS,W/O. CHACKO, CHETTIYATHU HOUSE, MATTAKUZHI KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,NOW RESIDING AT TRINITY RETIREMENT HOME, KOLENCHERY, REPRESENTED BY HER NEXT FRIEND K.E VARGHESE, AGED 70 YEARS,S/O. ISAHAK AND RESIDING AT KIZHIPPILLIL HOUSE, MATTAKUZHI KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN - 682307` - `2 GEEMON,AGED 46 YEARS,S/O. CHACKO, RESIDING AT CHETTIYATHU HOUSE, MATTAKUZHI KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN - 682307` - `3 ALICE,AGED 73 YEARS,W/O. E.V PAULOSE, RESIDING AT EDAYATHU HOUSE, MUVATTUPUZHA KARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK, PIN - 686661` - `4 GEORGE,AGED 46 YEARS,S/O. E.V PAULOSE, RESIDING AT EDAYATHU HOUSE, MUVATTUPUZHA KARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK, PIN - 686661` - `5 E.V PAULOSE,AGED 75 YEARS,S/O. E.P VARKEY, RESIDING AT EDAYATHU HOUSE, MUVATTUPUZHA KARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK, PIN - 686661 BY ADVS. P.FAZIL,JAYASREE MANOJ,SAJU THALIATH,JITHIN PAUL VARGHESE,C.PRABITHA,ANN MARY FRANCIS,R.SRUTHY` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ``` ``` ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1026 of 2022 **‘C.R’** ## **C.S DIAS,J.** **--------------------------OP(C) No.1026 of 2022** **----------------------------Dated this the 12[th] day of August, 2022.** ## **JUDGMENT** Does the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, override Order XXXII of the Code of Civil Procedure, 1908? 2. The original petition is filed by the fifth defendant in O.S No.221/2017 of the Court of the Munsiff, Muvattupuzha suit, to set aside the common order in I.A Nos. 1 and 2 of 2021. 3. The first respondent, through her next friend, has filed the suit against the petitioner and the respondents 2 to 5, for a declaration that the deeds and a will in the ‘lis’ are not binding on her and for recovery of possession of the plaint schedule property. 4. The first respondent has alleged in the suit that she is the owner of the plaint schedule property. Her son ― the second respondent ― has perpetrated a fraud on her by 3 OP(C) No.1026 of 2022 registering a sale deed in respect of the plaint schedule property, in connivance with the officials of the Muvattupuzha Sub-Registry Office, in favour of the late E.P.Varkey, the father of the fifth respondent and grandfather of the fourth respondent. The first respondent is mentally retarded and of unsound mind. She never desired to sell her property. Neither negotiation nor an agreement was executed between the first respondent and E.P.Varkey. The first respondent has not received the consideration as recited in the sale deed. The third respondent, the wife of the fourth respondent, is the sister of the first respondent. E.P.Varkey and respondents 2 to 4 knew that the first respondent is mentally retarded and a person of unsound mind. E.P.Varkey had executed a will in favour of respondents 3 to 5, who in turn ― after the death of E.P.Varkey ― executed sale deeds in favour of the petitioner trust. The sale deeds and the will are not binding on the first respondent. Hence, the suit. 5. The petitioner and the fifth respondent have filed their written statements. They have contended that the medical certificate produced by the first respondent shows 4 OP(C) No.1026 of 2022 that she is only mentally retarded. If that be the case, she has to be represented by a guardian appointed under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (in short, ‘National Trust Act’) and not under the Code of Civil Procedure (in short ‘Code’). 6. The next friend appointed by the court below had filed IA No.1/2021 for leave to retire from the office of the next friendship after substituting a person named Shiju.V.Paulose in his place. The proposed next friend had also filed IA No.2/2021 to appoint him as the next friend of the 1[st] respondent. The respondents 3 to 5 and the petitioner filed separate written objections to both applications. Without considering the objections, the court below has allowed the applications by the impugned common order, which is unsustainable in law. Hence, the original petition. 7. Heard; Smt.Sumathi Dandapani, the learned Senior Counsel appearing for the petitioner and Sri.P.Fazil, the learned counsel appearing for the first respondent. 5 OP(C) No.1026 of 2022 8. Smt.Sumathi Dandapani argued that the first respondent has alleged in the plaint to be a mentally retarded person. Therefore, she has to be represented by a guardian appointed under the provisions of the National Trust Act and not by a next friend appointed under Order XXXII of the Code. The disability certificate issued by the Medical Board shows that the first respondent is mentally retarded; the certificate is valid for three years and shall not be used for legal purposes. The first respondent’s next friend has acted adversely towards her interest. Therefore, if the first respondent wants to prosecute the suit, she should seek recourse to the provisions of the National Trust Act. The impugned order is wrong and is liable to be set aside. 9. Sri.P.Fazil, countered the above submissions by contending that the National Trust Act has no application to the case at hand. The Act is applicable only when a person with a disability, as defined under the Act, has to acquire, hold, dispose or contract in his name and to sue or be sued. In the instant case, the first respondent has only sought a declaration that the deeds and the will are 6 ## OP(C) No.1026 of 2022 not binding on her and for recovery of possession. In such an exigency, only Order XXXII of the Code is applicable. It is because the next friend wanted to retire due to old age, he filed IA No.1/2021 under O.32 R.8 of the Code, which stipulates that a person can retire from the office of the next friendship after the appointment of a new next friend. Accordingly, the name of the proposed next friend was suggested. Moreover, throughout the period, the petitioner and respondents 2 to 5 have not challenged the next friend acting on behalf of the first respondent. It was after the above application was filed that they raised the untenable contentions. There is no error in the impugned order. The original petition may be dismissed. 10. It is well settled that when deciding the jurisdiction of the court, only the averments in the plaint have to be considered. ## 11. Paragraphs 1, 6 and the reliefs prayed in the plaint read as follows: “1. The plaintiff is a mentally disabled person and she is mentally retarded by birth also. She is an illiterate woman. The plaintiff is a person suffering from mental disability and is affected with mental retardation. The mental disability prevents the plaintiff from understanding the true import of 7 OP(C) No.1026 of 2022 ordinary human behaviour and actions and she has not been able to take care of herself and her interest. The plaintiff is not capable of understanding anything done by her if any and forming a rational judgment as to the effect of any action upon her interest. 6. At the time of creation of deed No.1144/1998 of Muvattupuzha SRO, the plaintiff was unsound. She was incompetent to transfer her rights in the plaint schedule property. At the time of creation of said deed, due to her mental retardation and of her unsound mind, she was not capable of understanding the contents of the said deed and of forming a rational judgment as to its effect upon her interest. She cannot understand the terms or form a rational judgment. 13. The plaintiff therefore humbly prays that this Hon’ble Court may be pleased to pass a decree; (a) Declaring that deed Nos.1144/1998, 2055/2009, 2056/2009 and Will deed No.53/1998 of Muvattupuzha SRO are not binding upon the plaintiff and the plaint schedule property (b) Recovery of possession of the plaint schedule property to the plaintiff based on title, from the 5[th] defendant”. 12. To substantiate the assertions in the plaint, the next friend of the first respondent has produced a disability certificate issued by a five-member Medical Board, 8 OP(C) No.1026 of 2022 certifying that the first respondent is mentally handicapped to the extent of 50% under the moderate category. 13. Sections 3 (1) and 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, reads thus: “ **3. Constitution of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability, etc.-** (1) With effect from such date as the Central Government may, by notification, appoint, there shall be constituted, for the purposes of this Act, a body by the name of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, which shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued”. **14. Appointment of guardianship** - (1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability. (2) Any registered organisation may make an application in the prescribed form to the Local Level Committee for appointment of a guardian for a person with disability. Provided that no such application shall be entertained by the local level committee, unless the consent of the guardian of the disabled person is also obtained. 9 OP(C) No.1026 of 2022 (3) While considering the application for appointment of a guardian, the local level committee shall consider- - whether the person with disability needs a guardian; - the purposes for which the guardianship is required for person with disability. (4) The local level committee shall receive, process and decide applications received under sub-sections (1) and (2), in such manner as may be determined by regulations: Provided that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligations which are to be fulfilled by the guardian. (5) The local level committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations. 14. A careful reading of Section 3 (1) of the Act shows that it is applicable for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities, when such persons have to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. It is in such an eventuality that a parent of a person with a disability or his relative may make an application to the local level committee for the appointment of any person of his choice to act as a guardian of the person with a disability as provided under Section 14 (1) of the Act. 15. The first respondent has not sought any relief to acquire, hold, dispose or contract with any movable or 10 OP(C) No.1026 of 2022 immovable property in the plaint but has sought to declare that the deeds and a will are not binding on her and to recover possession of the plaint schedule property. Thus, in my view, the reliefs prayed for in the suit do not fall within the purview of the National Trust Act, and, therefore, the local level committee does not have jurisdiction to appoint a guardian under Section 14 of the Act. In the above situation, the provisions of the Act do not override Order XXXII of the Code. Even otherwise, in paragraph 6 of the plaint (extracted above), the first respondent also has a case that she is a person of unsound mind. 16. Order XXXII of the Code of Civil Procedure deals with suits by or against minors and persons of unsound mind.Rule 15 of Order 32 reads as follows: **"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”. 17. A perusal of the above provision demonstrates that the court is empowered to appoint a next friend/guardian in the event a person is adjudged, before or during the 11 OP(C) No.1026 of 2022 pendency of the suit, to be of unsound mind or if a person is not so adjudged, but is found by the court on inquiry to be incapable of protecting his or her interest when suing or being sued, because of any mental infirmity. Thus, the provision has two parts and applies to two categories of persons. The first category is persons adjudged to be of unsound mind, and the second category is persons found by the court on inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when sued or being sued. 18. In the present case, the first respondent alleges to be a person of unsound mind and to be mentally retarded. ## 19. In **Raveendran v. Sobhana and another** , [2008 ## (1) KLT 488], a Division Bench of this Court held thus: “8. Whether a deaf and dumb person can be said to be a person suffering from mental infirmity and as one entitled to protection of Order 32 Rule 15, is the question to be considered. Mental infirmity is not mental disorder. It is not mental illness or unsoundness of mind or insanity. It only indicates the weakness of intellect, and in the particular context of Order 32 Rule 15, weakness of intellect to the extent of making a person incapable of protecting his interests in the litigation. Thus a person who is not of unsound mind may, yet be a person who is mentally infirm. Thus entitling him to the protection under Order 32 Rule 15. 12 OP(C) No.1026 of 2022 In this context, it will be profitable to refer to one of the earliest decisions of the Lahore High Court in _Nanak Chand_ v. _Banarsi Das_ (AIR 1930 Lahore 425), wherein it has been held that a deaf mute, who has been leading a family life with his wife and children and eking his livelihood by grazing cattle, but who could not be understood by ordinary persons who are unacquainted with him, and not capable of understanding such persons is governed by Order 32 Rule 15. 9. Idiocy or unsoundness of mind indicates an abnormal state of mind, whereas mental infirmity only indicates weakness of mental strength. It was in that context, it was held by the Andhra Pradesh High Court in _Ganga Bhavanamma_ v. _Somaraju_ (AIR 1957 Andhra Pradesh 938) that the provisions of Lunacy Act applies only to idiots or persons of unsound mind, whereas Order 32 Rule 15 applies to dull-witted persons or persons with lesser degree of intellectual competence. Therefore, inquisition as per the procedure under the Lunacy Act is not required while dealing with persons suffering from mental infirmity. A person who is not adjudged as one unsound mind under the Lunacy Act is still entitled to the protection under Order 32 Rule 15, if the Court is satisfied that the person before the Court is incapable of protecting his interests, either by reason of unsoundness of mind or intellectual incompetence due to mental infirmity. In short as held by the Andhra Pradesh High Court in _Rami Reddy's case_ (AIR 1963 Andhra Pradesh 160), mental infirmity may even be due to physical defects, if such defects render a person incapable of receiving any communication or communicating his wishes or thoughts to others. The scope of enquiry under Order 32 Rule 15 is the assessment of the capability of a person either of unsound mind or suffering from any mental 13 OP(C) No.1026 of 2022 infirmity like deafness or dumbness, as to whether such defects or infirmities or weaknesses would render a person incapable of communicating his views, wishes or thoughts. 10. The decision under Order 32 Rule 15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the Court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the Court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the Court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions. In the decision reported in _S.C. Karayalar_ v. _V. Karayalar_ (AIR 1968 Mad 346), it was held that holding of an enquiry under Order 32 Rule 15….” is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend.” 11. Thus, the legal position is that mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness. Weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order 32 Rule 15. Such infirmity can also be caused by physical defects like deafness or dumbness, whereby a person is made incapable of communicating his wishes, views or 14 OP(C) No.1026 of 2022 thoughts to others who are not acquainted with him. If such a person is before the Court in a suit or proceedings either as plaintiff or defendant, the Court has a jurisdictional obligation to conduct an enquiry as to whether the person is capable of protecting his own interests. If in the judicial enquiry, if necessary and if required, conducted with the assistance of an expert, it is found that such person is incapable of protecting his interests in the suit or proceedings before the Court, the Court has an obligation to appoint a next friend for such person, and if the Court on the other hand finds that the person is otherwise capable of protecting his interests without a next friend, the Court shall remove the next friend if already available and permit the person, who is alleged to be of unsound mind or suffering from mental infirmity, to conduct the litigation himself. As held by the Supreme Court in _Ram Chandra_ v. _Man Singh_ (AIR 1968 SC 954), a decree passed against a minor without appointment of guardian is a nullity. The same principle would apply as far as a person suffering from unsoundness of mind or mental infirmity as referred to in Order 32 Rule 15 is concerned. 20. Recently this Court in **Raghavan M.K vs. Moodan Kuthirummal Karthiyani (Deaf and Dumb)** [2021 (5) KHC 619] and **Mary vs Leelamma and another** [2020 (4) KHC 176] has held that the application of Order XXXII is wide enough and not confined to only persons of minors/lunatics but to all persons who are incapable of protecting their interest due to other ailments. 15 OP(C) No.1026 of 2022 21. On an appreciation of the allegations in the plaint, the materials on record, R.15 of O.32 of the Code and the interpretation given in **Raveendran v. Sobhana,** this Court is prima facie of the view that the first respondent is incapable to protect her interest while suing. Nonetheless, it is not discernible from the pleadings and materials on record as to whether the court below had conducted an enquiry as contemplated under O.32 R.15 at the time of filing the suit even though the next friend has instituted the suit on behalf of the first respondent. 22. R.15 of O.32 contemplates an enquiry by the Court on the application filed for the purpose. It is after the Court conducts a voir dire by putting questions to the person allegedly suffering from the unsoundness of mind/mental infirmity, so as to ascertain whether there is any substance in the information furnished by the self-styled next friend, and the court adjudges the person to be incapable of protecting his interest when suing or being sued by reason of any mental infirmity, the court may allow the petition. Such an application cannot be considered in a cavalier manner. 16 OP(C) No.1026 of 2022 23. On a conspectus of the findings and the law referred to above, especially the absence of any cogent material to prove that an enquiry was conducted as per mandate in O.32 R.15, this Court is of the definite view that the court below has to conduct a voir dire to ascertain whether the first respondent is in a position to protect her interest and, thereafter, the court below shall decide whether or not to substitute the next friend. In the light of the allegations and counter-allegations made, I am of the view that if the court below feels a next friend is to be appointed, only a court-appointed next friend shall be appointed, taking into account the close relationship of the parties. The above course would protect the best interest of the first respondent. In the above factual and legal matrix, and in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of the original petition in the following manner: (i) Ext P11 common order allowing I.A No.1/2021, permitting the retirement of the next friend, is confirmed. 17 OP(C) No.1026 of 2022 - (ii) Ext P8 common order allowing I.A No.2/2021, permitting the substitution of the next friend, is set aside. (iii) The court below shall conduct an enquiry in Ext P8 application, as contemplated under Order 32 Rule 15 of the Code and ascertain whether the first respondent is capable of suing O.S No.221/2017 by herself. (iv) If the court below arrives at a conclusion that the first respondent is unable to sue by herself, the court below shall appoint a court-appointed next friend to sue on behalf of the first respondent. - (v) As the suit is of the year 2017, the court below shall make every endeavour to dispose of the suit, as expeditiously as possible, in accordance with law. SD/- sks/12.8.2022 **C.S.DIAS, JUDGE** 18 OP(C) No.1026 of 2022 ## **`APPENDIX OF OP(C) 1026/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` - `A TRUE COPY OF THE PLAINT DATED 12.04.2017` ``` Exhibit2 ``` - `TRUE COPY OF THE WRITTEN STATEMENT DATED 12.09.2018 FILED BY 5TH RESPONDENT WHO IS THE 4TH DEFENDANT IN THE ABOVE SUIT` - `Exhibit P3 A TRUE COPY OF THE WRITTEN STATEMENT DATED 27.06.2018 FILED BY THE PETITIONER WHO IS THE 5TH DEFENDANT` - `Exhibit P4 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 19.02.2010 ISSUED BY THE MEDICAL BOARD ERNAKULAM` - `Exhibit P5 A TRUE COPY OF THE IA 1/2021 DATED 20.12.2021` - `Exhibit P6 A TRUE COPY OF THE OBJECTION DATED 28.05.2022 FILED BY THE RESPONDENTS 3 TO 5` - `Exhibit P7 TRUE COPY OF THE OBJECTION DATED 28.05.2022 FILED BY THE PETITIONER` - `Exhibit P8 A TRUE COPY OF IA 2/2021 DATED 20.12.2022 FILED BY THE PROPOSED NEXT FRIEND` - `Exhibit P9 THE TRUE COPY OF THE OBJECTION DATED` - `28.05.2022 FILED BY THE RESPONDENTS 3 TO 5` - `Exhibit P10 A TRUE COPY OF THE OBJECTION DTD 28.05.2022 FILED BY THE PETITIONER` - `Exhibit P11 A TRUE COPY OF ORDER PASSED BY THE MUNSIFF COURT, MUVATTUPUZHA IN IA 2/2021 IN OS NO. 221/2017 DATED 02.06.2022`