W.P.(C) No. 26804/2010 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933** ## **WP(C).No. 26804 of 2010(O)** **-------------------------I.A.NO.712/2009 IN OS.8/2008 of SUB COURT, PERUMBAVOOR** **....................** ## **PETITIONER(S):** - **--------------------------** **1. JANAKI, D/O.LATE KOCHUKUTTAN, AGED 77 YEARS, THENALIPARAMBIL HOUSE, VADAVUKODE KARA, DO.VILLAGE, REPRESENTED BY HER GUARDIAN MOHINI, D/O.JANAKI, AGED 45 YEARS, THENALIPARAMBIL HOUSE,** **VADAVUKODU KARA DO.VILLAGE, VADAVUCODU P.O., ERNAKULAM DISTRICT. ( D I E D).** ## **ADDITIONAL PETITIONERS:** - **ANEESH, S/O.SARASWATHY, AGED 35 YEARS, THENALIPARAMBIL HOUSE, VADAVUKODE KARA, ...DO... VILLAGE.** - **GINEESH, S/O.SARASWATHI, AGED 33 YEARS,...DO..DO....** - **SHANMUGAN, H/O.SARASWATHI, AGED 55 YEARS, ..DO..DO....** **5. MOHINI, D/O.JANAKI, AGED 47 YEARS, ..DO..DO....** ## **BY ADV. SRI.JEEMON K.ABRAHAM** ## **RESPONDENT(S):** - **---------------------------** **1. T.P.VINEESH, S/O.PANKAJAKSHAN, THADEETTUMOLAYIL HOUSE, VADAVUKODU KARA, DO.VILLAGE, VADAVUCODE P.O.,ERNAKULAM DISTRICT.** **2. KRISHNAN, S/O.KOCHUKUTTAN, THENALIPARAMBIL HOUSE, VADAVUCODE KARA, DO. VILLAGE, VADAVUCODE P.O., ERNAKULAM DISTRICT.** ## **ADDL.3RD RESPONDENT:** **3. SUMATHY, D/O.JANAKI, THENALIPARAMBIL HOUSE, VADAVUCODE KARA, ...DO.. VILLAGAE, VADAVUCODE PO, ERNAKULAM DISTRICT.** **R1 BY ADV. SRI.M.S.UNNIKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.26804/2010 O** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1: COPY OF THE ORDER PASSED BY THE SUB COURT, PERUMBAVOOR IN I.A.712/2009 IN O.S.8/2008.** **P2: COPY OF THE ORDER PASSED BY THE SUB COURT, PERUMBAVOOR IN I.A.148/2008 IN O.S.8/2008.** **P3: COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER AFTER EXAMINING THE EXPERT DOCTOR.** **P4: COPY OF DEPOSITION OF DW2.** ## **RESPONDENT'S EXHIBITS:** **R1(A): COPY OF THE AGREEMENT FOR SALE DTD. 5/05/2007.** **R1(B): COPY OF THE WILL O.152/2007 DTD. 6/06/2007.** **R1(C): COPY OF THE TREATMENT RECORD OF SMT. JANAKI KUMARAN, M.O.S.C. MEDICAL MISSION HOSPITAL, KOLENCHERY.** **R1(D): COPY OF THE SALE DEED NO.3417/2010 OF S.R.O., KUNNATHUNADU.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.26804 of 2010 -------------------------------------Dated this the 7[th] day of December, 2011.** ## **JUDGMENT** This petition under Article 227 of the Constitution of India was originally filed by one Janaki, represented by her daughter, Mohini (additional 5[th] petitioner) as her next friend claiming that on account of alzheimers the said Janaki is not capable of protecting her interest in the proceeding. Pending the proceeding the said Janaki expired and thereon, additional petitioners 2 to 5 (including the next friend of original petitioner) are impleaded in this proceeding. 2. The challenge in this proceeding is to Exts.P1 and P2, orders whereby learned Sub Judge, Perumbavoor rejected the claim of petitioner that the original petitioner/1[st] defendant in O.S.No.8 of 2008 may be represented by her as guardian in the suit. 3. 1[st] respondent filed O.S.No.8 of 2008 before learned Sub Judge, Perumbavoor to enforce an agreement for sale allegedly executed by the deceased original petitioner and her son (2[nd] defendant in the suit) on 05.05.2007. The 2[nd] defendant, I am told remained exparte in the suit. Original petitioner appeared through her daughter as guardian and filed I.A.No.148 of 2008 to appoint the daughter as guardian claiming that original petitioner/1[st] defendant is suffering from alzheimers and is not capable of protecting her interest in the suit. She also filed written statement acting through her guardian. **WP(C) No.26804/2010** 2 Learned Sub Judge conducted an enquiry as contemplated under Rule 15 of Order XXXII of the Code of Civil Procedure (for short, “the Code”) and concluded that original petitioner is capable of protecting her interest in the suit and dismissed I.A.No.148 of 2008. Thereafter the case was posted for trial in the list on 04.02.2009. Learned Sub Judge directed the original petitioner to file written statement in her personal capacity and posted the case on 16.02.2009. On that day, since the original petitioner did not file written statement in her personal capacity she was set exparte and that was followed by an exparte decree in favour of the 1[st] respondent. I am told that pursuant to the decree a sale deed has been executed in favour of the 1[st] respondent. 4. While so, the deceased original petitioner represented by her daughter, Mohini as guardian filed I.A.No.445 of 2009 to set aside the exparte decree and I.A.No.712 of 2009 to appoint guardian for the deceased original petitioner. On I.A.No.712 of 2009 also learned Sub Judge conducted an enquiry as required under Rule 15 of Order XXXII of the Code. Learned Sub Judge came with Ext.P2, order that original petitioner is not incapable of protecting her interest in the proceeding and dismissed I.A.No.712 of 2009. That was followed by a dismissal of I.A.No.445 of 2009 to set aside the exparte decree. Exts.P1 and P2, orders dismissing I.A.Nos.412 of 2008 and 712 of 2009, though at different stages for appointment of guardian for the original petitioner are under challenge in this Original Petition. **WP(C) No.26804/2010** 3 5. It is while this Original Petition was pending that the original petitioner died and some of her legal representatives are impleaded as additional petitioners 2 to 5. 6. Learned counsel for additional petitioners contended that in an enquiry under Rule 15 of Order XXXII of the Code what is required is only a prima facie satisfaction that the defendant is incapable of protecting her/his interest on account of infirmity of mind. According to the learned counsel, sufficient evidence is on record to justify a prima facie satisfaction to that effect. Reliance is placed on the decision in **Marci Celine D' Souza v. Renie Fernandez (1998 (1) KLT 888)** . It is contended by the learned counsel that if Exts.P1 and P2, orders are set aside, it follows that when the learned Sub Judge passed exparte decree for the reason that deceased original petitioner had not filed written statement, there was in fact a written statement filed by her acting through her guardian and hence the consequence is that the exparte decree is also liable to be set aside. 7. Learned counsel for the 1[st] respondent contended that it was on a prima facie satisfaction of learned Sub Judge that the deceased original petitioner was capable of protecting her interest in the suit that Exts.P1 and P2, orders are passed and it does not call for interference. It is also contended by the learned counsel that in view of the subsequent developments it is **WP(C) No.26804/2010** 4 unnecessary to re-open the issue as deceased original petitioner had executed a Will (a copy of which is produced as Ext.R1(b)) in favour of the 2[nd] defendant who is also a party to the agreement for sale dated 05.05.2007 and against whom the exparte decree stands, he being the legatee under the Will right of deceased original petitioner in the suit property has passed to the 2[nd] defendant consequent to the death of the deceased original petitioner. Hence the sale deed executed in favour of the 1[st] respondent is valid. It is also contended that at any rate, additional petitioners 2 to 5 cannot be treated as legal representatives of deceased original petitioner so far as the suit property is concerned in view of the Will in question. 8. It is true that dismissal of I.A.No.445 of 2009 to set aside the exparte decree is not separately challenged in this proceeding or any other proceeding. But I am inclined to accept the argument of additional petitioners that in case Exts.P1 and P2, orders are set aside and I.A.Nos.148 of 2008 and 712 of 2009 are allowed, the very substratum on which the exparte decree was passed ceases to exist in that, the exparte decree was passed because there was no written statement filed by the deceased original petitioner personally and the consequence of allowing I.A.Nos.148 of 2008 and 445 of 2009 is that there is a written statement filed by the deceased original petitioner represented by her guardian. Therefore, if I.A.Nos.148 of 2008 and 712 of 2009 are allowed, necessarily the consequence is that the exparte decree has to be set aside by allowing I.A.No.445 of 2009. **WP(C) No.26804/2010** 5 9. Now coming to the question whether there was prima facie materials to show that the deceased original petitioner was prima facie incapable of protecting her interest on account of unsoundness of mind or mental infirmity, the decision relied by the learned counsel and referred supra states that what is required is only a prima facie satisfaction. It is also held that the court is not expected to conduct an elaborate enquiry under Rule 15 of Order XXXII of the Code and that all that is needed is that there must be some prima facie proof to satisfy the court that the person concerned is by reason of infirmity incapable of protecting his interest, because an order permitting next friend to represent such a person is not final. I must bear in mind that the purport of Rule 15 of Order XXXII of the Code is to conduct an enquiry to decide whether on account of mental infirmity of the person concerned, he/she should be allowed to be represented in the suit by a next friend or a guardian as the case may be. 10. It would appear from the orders under challenge that notwithstanding that some medical evidence was brought in through the evidence of the Medical Officer who either examined and treated the deceased original petitioner or through the Head of Department in which the deceased original petitioner was treated, learned Sub Judge was carried away by the questioning of deceased original petitioner in the open court where she is seen to have correctly re-collect and disclosed the name of herself, her husband and children and other details concerning her residence. I must bear in mind that **WP(C) No.26804/2010** 6 the symptom of alzheimers as stated by the experts in their evidence is that the person concerned may be able to re-collect the past things but, not present matters. I have been taken through the evidence of the Medical Officers. Going through the evidence as also the orders under challenge and the nature of enquiry and evidence required under Rule 15 of Order XXXII of the Code I am inclined to think that the learned Sub Judge has not considered the matter in the correct perspective. For the said reason, Exts.P1 and P2, orders require interference. 11. But I do not propose to take a final decision on the said applications in this proceeding on account of certain intervening events which has to be taken into account. As aforesaid, original petitioner died during the pendency of this proceeding. May be, for the purpose of proceeding with this Original Petition some of her legal representatives were impleaded as additional petitioners 2 to 5. But the trial court has to consider, in view of Ext.R1(b), Will allegedly executed by the deceased original petitioner in favour of the 2[nd] defendant whether, petitioners 2 to 5 could be considered as legal representatives of the deceased original petitioner or, it is the 2[nd] defendant who is the legal representative of the deceased original petitioner in view of the Will in question. To decide that, an enquiry has to be conducted as provided under Rule 5 of Order XXII of the Code. It is only after that enquiry is conducted and a finding is entered by the trial court as to whether the Will allegedly executed by the deceased original petitioner in favour of the 2[nd ] defendant is genuine or not **WP(C) No.26804/2010** 7 that it could be decided who exactly is the legal representatives of the deceased original petitioner so far as the property in question is concerned. In that view of the matter, I am inclined to remit I.A.Nos.148 of 2008 and 712 of 2009 to the learned Sub Judge for fresh decision after conducting enquiry under Rule 5 of Order XXII of the Code as well for, if it is ultimately found that the Will is genuine, question whether it is necessary to allow I.A.Nos.148 of 2008 and 712 of 2009 and continue the suit is required to be decided by the learned Sub Judge since according to the 1[st] respondent, by the Will in question, the suit property has been bequeathed to the 2[nd] defendant and against him there is a decree for specific performance which is not challenged. I also make it clear that in case learned Sub Judge decides to allow I.A.Nos.148 of 2008 and 712 of 2009, the consequence will be to re-open the case notwithstanding that dismissal of the application to set aside the exparte decree is not separately challenged. ## Resultantly this Writ Petition is allowed as follows: i. Exts.P1 and P2, orders are set aside and I.A.Nos.148 of 2008 and 712 of 2009 are remitted to the court of learned Sub Judge, Perumbavoor for fresh decision. **WP(C) No.26804/2010** 8 ii. Notwithstanding the impleadment of petitioners 2 to 5 in this Writ Petition, it is open to such of the legal representatives of the deceased original petitioner to file a formal application for their impleadment in the suit and I.A.Nos.148 of 2008 and 712 of 2009 as also I.A.Nos.445 of 2009 and if any such application is preferred notice of that application shall be given to the 1[st] respondent and the 2[nd] defendant. If the contesting respondents set up the Will in question, learned Sub Judge has to conduct an enquiry as contemplated under Rule 5 of Order XXII of the Code and enter appropriate finding as to who could represent the estate of the deceased original petitioner. iii. In case learned Sub Judge decides to allow I.A.Nos.148 of 2008 and 712 of 2009, notwithstanding the exparte decree passed against the deceased original petitioner the case has to be re-opened and further steps taken in the matter. iv. Considering the fact that the suit is of the year 2008, learned Sub Judge is directed to expedite the proceedings in the matter. **THOMAS P.JOSEPH, Judge.** ## **cks**