Sam T. George v. Mathews T George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** ## **OP(C).No.1176 of 2019** **AGAINST THE ORDER IN IA NO.324/2018 IN OS 47/2017 of SUB COURT, PATHANAMTHITTA** ## **PETITIONER/PLAINTIFF:** **SAM T. GEORGE,** **S/O. T.M GEORGE, THOOMPUMPATTU HOUSE, KOZHENCHERRY EAST P.O, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER MATHEW C.T, AGED 74 YEARS, S/O. LATE THOMAS THOMAS, CHARIVIL HOUSE, ANTHAYALANKAVU P.O, NARANGANAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH** ## **RESPONDENT/1ST DEFENDANT:** **MATHEWS T GEORGE S/O. T.M GEORGE, SHAMILA HOUSE, MARAMON P.O, THOTTTAPUZHASSERRY VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT 689 549** **BY ADVS. SMT.ANNIE M.ABRAHAM SRI.SAM ABRAHAM SRI.T.K.BIJU (MANJINIKARA)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON 26/6/2019 PASSED THE FOLLOWING:** O.P.(C) No.1176/2019 2 ## **JUDGMENT** This original petition is filed by the plaintiff in OS No.47/2017 of the Sub Court, Pathanamthitta aggrieved by the order in IA No.324/2018. 2. Plaintiff and the first defendant are the children of the second defendant. Petitioner is the plaintiff in the above suit. Suit was one for declaring the settlement deed No.355/2017 of SRO, Kozhencherry as void and consequential permanent prohibitory injunction against the defendant from dispossessing the plaintiff from the plaint item number 1 property and other ancillary reliefs. ` 3. According to the petitioner herein, the second defendant is aged and was suffering from dementia from December 2016 onwards. The first defendant was residing along with the second defendant and by exerting his influence settlement deed No.355/2017 of SRO, Kozhencherry was got executed. The suit was filed for declaring the settlement deed as null and void, arraying the first defendant as the next friend of the second defendant. However, the first defendant filed vakalath through a counsel and filed written statement and objection to the interim application. It was contended that the second defendant was not O.P.(C) No.1176/2019 3 having dementia or any mental infirmity and he has signed the vakalath after conducting independent enquiry. 4. In the above circumstances, the plaintiff filed IA No.324/2018 for medical examination of the second defendant by a Medical Board of the General Hospital, Pathanathitta to consider whether he had sufficient mental capacity. Defendants filed their written objection. By Ext.P13 order, the court below dismissed the application, which is under challenge in this proceeding. 5. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. Essentially, the crucial issue, that arises in this original petition, is whether the court below ought to have conducted preliminary enquiry under Order 32 Rule 15 CPC to ascertain about the mental condition of the second defendant. The precise contention of the plaintiff was that the father, the second defendant, was suffering from dementia and was incapable of prosecuting the litigation by himself. It was contended that the court ought to have conducted a preliminary enquiry by referring him to the Medical Board to ascertain clinically whether he suffered from mental infirmity as alleged. It was contended that Order 32 Rule 15 CPC mandates that court has to perform this solemn duty. The court below repelled this contention on the ground that no O.P.(C) No.1176/2019 4 materials were placed before the court below to establish that the second defendant had mental infirmity or dementia. 5. To substantiate the contention, learned counsel for the petitioner/plaintiff, relied on the decision of this Court in _**Raveendran v. Sobhana and Another(2008(1) KHC 607).**_ In that case it was held that in a suit by or against a deaf and dumb person or a person suffering from mental infirmity or a person who is seemingly unable to protect his interest, the court is bound to conduct preliminary enquiry before proceeding with the suit,as to determine whether the person was capable of protecting his interests without the assistence of the next friend. In _**G.V. Lakshminarayanan v. G.V.Nagammmal and Others(2007 KHC 7507)**_ referring to Order 32 Rule 15 CPC, court held that by virtue of Order 32 Rule 15 CPC, power is vested on the court to order medical examination. It was held that a plain reading of Order 32 Rule 15 CPC showed that the court need not wait for examining a person as to whether he/she was mentally infirm or not, only at the time of examination of witnesses - A Division Bench of this Court in _**Jimshith Lal v. C.K.Shabeena and Another(2018 (5) KHC 332)**_ had held that in the case of appointment of guardian for a person of unsound mind invoked under Order 32 Rule 15 CPC, the court has not only a mandatory jurisdiction to enquire into the need O.P.(C) No.1176/2019 5 for appointment of a next friend or guardian, but also has the obligation to consider whether person of unsound mind or of mental infirmity did not have the capacity to protect his interest. 6. Evidently, Order 32 Rule 15 CPC mandates the court to conduct enquiry. However, that does not mean that whenever and wherever allegation is made that the other side is mentally infirm person, the court shall conduct a medical examination of that person or conduct a detailed enquiry. Primarily, materials on record should give a reasonable apprehension of mental infirmity on any person attributed with mental infirmity. However, it is pertinent to note that the court is bound to conduct enquiry, when there are some materials to hold that there are reasons to believe that person alleged is an infirm person. In the case at hand, it is seen that the plaintiff herein had a specific case that the second defendant was suffering from dementia since 2016. It is on that ground he has challenged Ext.P3 settlement deed. 7. There is absolutely no medical evidence to show that the second defendant had undergone any medical treatment in any hospital for dementia. It is also to be noted that even though Ext.P3 is challenged and contended that the second defendant was suffering from mental ailment since 2016, petitioner has not challenged Ext.P4 Will Deed No.98/2017 of Aaranmula SRO. by O.P.(C) No.1176/2019 6 which the second defendant conferred certain benefits on the plaintiff. It is also pertinent to note that second defendant himself filed vakalath. He himself filed written statement and other pleadings. He asserted that he was mentally fit. It is to be noted that there was absolutely no material except bare allegations raised by the petitioner herein that his father was mentally infirm. Father had also stated in the affidavit that he was not suffering from dementia and medically he was fit. 8. Consequently, in the absence of any material to substantiate the allegation that the second defendant was suffering from any ailment, I feel that the court below was perfectly justified in not directing the second defendant to be placed before the Medical Board or to call upon him to undergo medical examination. Hence, I find no reason to interfere in the impugned order which is unassailable. The original petition fails and is dismissed. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** O.P.(C) No.1176/2019 7 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN O.S NO. 47/2017 ON THE FILES OF LEARNED SUB COURT, PATHANAMTHITTA** - **EXHIBIT P2 THE TRUE COPY OF THE WILL DEED NO. 106/2016 OF SRO KOZHENCHERRY DATED 2107-2016** - **EXHIBIT P3 THE TRUE COPY OF THE CERTIFIED COPY OF THE SETTLEMENT DEED NO. 355/2017 OF SRO KOZHENCHERRY** - **EXHIBIT P4 THE TRUE COPY OF THE WILL DEED NO. 98/2017 OF ARANMULA SRO** - **EXHIBIT P5 THE TRUE COPY OF THE WRITTEN STATEMENT OF RESPONDENTS/DEFENDANTS IN EXT.P1 SUIT.** - **EXHIBIT P6 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT/S DEFENDANTS TO I.A NO. 684/2017 INJUNCTION APPLICATION** - **EXHIBIT P7 THE TRUE COPY OF THE I.A NO. 142/2018 IN O.S NO. 47/2017 ON THE FILES OF LEARNED SUB COURT, PATHANAMTHITTA** - **EXHIBIT P8 THE TRUE COPY OF THE JOINT OBJECTION FILED BY THE RESPONDENTS/DEFENDANTS TO EXT P7 APPLICATION** - **EXHIBIT P9 THE TRUE COPY OF THE ORDER DATED 0904-2018 IN EXT P7 APPLICATION BY LEARNED SUB COURT, PATHANAMTHITTA** - **EXHIBIT P10 THE TRUE COPY OF THE ORDER DATED 2405-2018 IN OP(C) NO. 1214/2018 OF THIS HON'BLE COURT.** **EXHIBIT P11 THE TRUE COPY OF THE APPLICATION AS I.A NO. 686/2017 IN O.S NO. 47/2017 UNDER R.3 OF ORDER 32 CPC.** |O.P.(C) No.1176/2019|8| |---|---| |**EXHIBIT P12**|**THE TRUE COPY OF THE ORDER DATED 04-**| ||**02-2019 PASSED BY THE SUB COURT,**| ||**PATHANAMTHITTA IN I.A NO. 324/2018 IN**| ||**OS NO. 47/2017**| |**EXHIBIT P13**|**THE TRUE COPY OF THE ORDER DATED 04-**| ||**02-2019 PASSED BY THE SUB COURT,**| ||**PATHANAMTHITTA IN I.A NO. 324/2018 IN**| ||**O.S NO. 47/2017**|