# IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937
OP (FC).No. 185 of 2015 (R) ----------------------------
AGAINST THE ORDER DATED 01.04.2015 IN I.A. NO.223/2015 IN OP 630/2013 of FAMILY COURT,ERNAKULAM.
PETITIONERS:
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1. SHERLY D'SILVA W/O STEPHEN D'SILVA, PUTHIYODATH VEEDU, MULAVUKAD.P.O PIN-682504.
2. DR.MARY SHEFI D'SILVA, AGED 26 YEARS D/O.STEPHEN D'SILVA, PUTHIYODATH HOUSE, MULAVUKAD.P.O PIN-682504.
3. TEENA D'SILVA, AGED 23 YEARS D/O STEPHEN D'SILVA, PUTHIYODATH HOUSE, MULAVUKAD.P.O PIN-682504.
BY ADVS.SRI.P.SANTHALINGAM (SR.) SRI.KAYALATT KUTTYKRISHNAN
RESPONDENT:
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STEPHEN D'SILVA, AGED 57 YEARS
S/O ALFRED D'SILVA, PUTHIYODATH HOUSE, MULAVUKAD.P.O PIN-682504.
BY ADV. SRI.C.S.DIAS
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 03-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No. 185 of 2015 (R)
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## APPENDIX
## PETITIONERS' EXHIBITS :
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EXT.P1 A TRUE COPY OF THE ORDER DATED 10/4/2013 IN I.A.1118/2013 OF THE FAMILY COURT,ERNAKULAM
EXT.P2 A TRUE COPY OF THE I.A.223/2005 IN O.P.630/2013 BEFORE THE FAMILY COURT,ERNAKULAM
EXT.P3 A TRUE COPY OF THE ORDER DATED 1/4/2015 IN I.A.223/2005 IN O.P.630/2013 BEFORE THE FAMILY COURT,ERNAKULAM.
## RESPONDENT'S' EXHIBITS
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EXT.R1 : TRUE COPY OF O.P.NO.630 OF 2013 FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, ERNAKULAM.
EXT.R2 : TRUE COPY OF THE WRITTEN OBJECTION DATED 16.12.2013, FILED BY THE RESPONDENT IN O.P.NO.630 OF 2013 BEFORE THE FAMILY COURT, ERNAKULAM.
EXT.R3 : TRUE COPY OF THE COUNTER TO I.A.NO.223 OF 2015 IN O.P.NO.630 OF 2013 OF THE FAMILY COURT, ERNAKULAM.
EXT.R4 : TRUE COPY OF THE APPLICATION NO.9173 OF 2014 DATED 27.10.2014 FILED BY THE RESPONDENT BEFORE MAINTENANCE TRIBUNAL, ERNAULAM.
EXT.R5 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY SRI.ANTONY SHEJOY D'SILVA BEFORE THE MAINTENANCE TRIBUNAL DATED 24.01.2015.
//TRUE COPY//
P.A. TO JUDGE
smv
## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.**
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## **O.P.(FC) No.185 of 2015**
**----------------------------------------------Dated this the 3[rd] day of February, 2016.**
## **JUDGMENT**
## Abdul Rehim,J.
The petitioners herein are the petitioners in O.P.No.630/2013 on the files of the Family Court, Ernakulam, in which the respondent herein is the respondent. Original Petition before the Family Court was instituted seeking the following reliefs:
“(a) a decree declaring that the 1[st] petitioner and her son are the real and rightful owners in possession and enjoyment of the petition schedule properties and the respondent is only a name-lender as the properties have been purchased by the funds of the 1[st] petitioner and her son.
(b) a decree of permanent prohibitory injunction restraining the respondent, his men and agents from interfering with the possession, use and enjoyment of the petition schedule properties and also not to cause any obstruction to the free use of the petition schedule properties by the petitioners.
(c) to direct that the mistake committed in (1) the sale deed No.4253/1986 before the Sub Registrar's Office, Ernakulam, be rectified by incorporating the name
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of the 1[st] petitioner as the true and lawful owner and (2) Sale deed No.8239/2005 of Sub Registrar's Office, Ernakulam, be rectified by incorporating the name of the son, Antony Shijay D'Silva as the true and lawful owner instead of the name of the respondent.
(d) to realize from the respondent the cost of the suit.
(e) awarding such other reliefs as deemed fit and proper in the interest of justice, and which may be prayed for hereafter.”
2. The petitioners are the wife and children of the respondent. It is the case of the petitioners that plaint A schedule property was purchased with sale consideration arranged by the 1[st] petitioner by way of disposal of her gold ornaments. It is also contended that plaint B schedule property was purchased at the initiative of the son of the 1[st] petitioner with money arranged by him. But the properties were registered in the name of the respondent. According to the petitioners, ever since purchase of the properties it is being looked after and maintained by the 1[st] petitioner and the respondent was not taking any interest to protect the properties. The Original Petition was instituted with an allegation that the respondent is
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making attempts to sell the scheduled properties, at the influence and pressure of his brother and some other real estate agents, due to psychiatric disorder/unsoundness of mind of the respondent and because he is unaware of the nature of the act he is performing. It is also alleged that the respondent was lured by his sister residing at Varapuzha to stay with her, so that she can easily influence the respondent by taking advantage of his fragile mental condition.
3. The petitioner filed an application seeking interim in junction which was allowed by the court below restraining the respondent or his men from alienating the petition schedule properties or from inducting any strangers therein, until further orders. When the suit was proceeded with, the petitioners filed another interlocutory application as I.A No.223/2005 seeking orders from the Family Court to direct the respondent to undergo medical examination before an expert Psychiatrist. In the affidavit filed in support of the said application it is alleged that, the respondent is suffering from mental illness and he was treated as inpatient at a mental hospital. It is also alleged that
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recently due to his mental illness the respondent became violent and made attempts to attack the 2[nd] petitioner with a knife. According to the petitioners, the respondent requires immediate treatment and it is necessary to subject him to thorough medical examination by an expert Psychiatrist. The said application was objected by the respondent contending that the interlocutory application filed at the fag end of the trial of the Original Petition is only with an ulterior motive of protracting the litigation and to prevent the respondent from dealing with his properties because of the interim order of injunction sustaining. It is contended that the said application is filed only with the sole oblique motive of tarnishing reputation of the respondent. He had stoutly denied the allegations of mental illness. It is further contended that, such an application filed, without seeking to invoke provisions of Order XXXII of the Code of Civil Procedure, cannot be sustained.
4. The court below after considering the rival contentions had dismissed I.A No.223/2015 through Ext.P3 order observing that, the prayer for subjecting the respondent for medical examination cannot be allowed because such a question never
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arises for consideration in the case at hand. It is found that the alleged unsoundness of mind of the respondent is not at all a relevant issue for the purpose of determination of the crucial questions involved in the suit. It is being aggrieved by dismissal of the interlocutory application that the petitioners are approaching this court by invoking the supervisory jurisdiction vested under Article 227 of the Constitution of India.
5. Learned Senior Counsel appearing for the petitioners contended that, the court below ought to have ordered the respondent to undergo medical examination before a Psychiatrist in order to ascertain his mental conditions for the purpose of a proper determination of the case. He had placed reliance on the decision of the Hon'ble Supreme Court in **Sharda v. Dharmpal [(2003)4 SCC 493]** in order to contend that the court dealing with matrimonial cases are empowered to exercise even inherent jurisdiction vested under Section 151 of the Code of Civil Procedure, in order to do complete justice to the parties to the suit. Reference is made to the observations contained in the decision of the Supreme Court to the extent that, if the court can
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issue requisite directions under Order XXXII Rule 15 of the Code of Civil Procedure or under Section 41 of the Indian Lunacy Act, for the purpose of judging competence of a person to examine as a witness, the court can do it suo motu under the inherent powers and there is no reason as to why it cannot be done so on an application filed by a party to the matrimonial relationship. On the basis of the ratio, it is contended that the interlocutory application ought to have been allowed in order to make the court convinced about the mental condition of the respondent. But it is to be noted that, in the decision cited above the Hon'ble Supreme Court was dealing with a case between the parties seeking nullity of their marriage on the basis of unsoundness of mind of one of the parties. Referring to provisions contained in the Hindu Marriage Act as well as to the powers vested on the Family Court under Section 12 of the Family Courts Act, it is observed that, in order to arrive at the truth and to do complete justice in disputes relating to the matrimony, it is left open to the Family Court to refer any of the parties for medical examination for ascertaining his mental condition. But in the case at hand
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the Original Petition is not one seeking any relief connected to the matrimonial status of the parties. The relief sought for is only with respect to right over immovable property. Specific case of the petitioners is that they are entitled to get a declaration of their right over the scheduled properties, on the basis that the said properties were purchased by utilising funds of the petitioners. As rightly observed by the court below, the present mental condition of the respondent is not a question which need to be ascertained for a proper adjudication of the issue involved.
6. It is pertinent to note that the petitioners have impleaded the respondent in person in the Original Petition. He had appeared before the Family Court and is contesting the matter by his own. It is evident that, pleadings are over and the case is now ripe for trial. If the petitioners have got any case that the respondent is not capable of protecting his interest due to mental infirmity or unsoundness of mind, then they ought to have resorted to the procedure provided under Rule 15 of Order XXXII CPC. If any such application is made it is left open to the
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court to follow procedure contemplated under the said provision, for ascertaining as to whether the person is capable of himself in protecting his interest and in contesting the case. As noticed by the Family Court, in the case at hand the petitioners have not resorted to any such remedy. Therefore it cannot be found fault with the court below in denying the application for referring the respondent for medical examination by a Psychiatrist, on an interlocutory application filed as I.A.No.223/2015. We do not find any manifest error of jurisdiction or patent illegality committed by the court below in dismissing the said interlocutory application. Hence the Original Petition deserves no merit and the same is hereby dismissed.
7. However it is made clear that, if during course of the proceedings it is convinced to the court below either on its own or on the basis of any proper application, that it is necessary to follow the procedure contemplated under Order XXXII of the CPC to appoint a guardian or next friend on behalf of the respondent for conducting the case, it will be open to the said court to take any appropriate decision.
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Original Petition is hereby dismissed, subject to the above observation.
Sd/- **C.K. ABDUL REHIM JUDGE**
Sd/-
**SHAJI P. CHALY** //true copy// **. JUDGE**
P.A. To Judge
smv 4.2.2016
