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Person Not Necessarily : Dismisses Partition Challenge
The has delivered a significant ruling clarifying that a person who is cannot automatically be presumed to be of , thereby negating the need for appointment of a guardian under . Justice Jyotsna Rewal Dua dismissed a writ petition filed by Neel Chand, who challenged the mode of partition of jointly owned property, holding that the revenue authorities had correctly proceeded against his brother, Som Dev, who had been personally served and had signed summons but chose not to appear.
The Property Dispute
Neel Chand, along with respondent No. 4 and proforma respondents Nos. 5 to 12, were co-sharers in a property in Lahaul & Spiti district. Respondent No. 4 moved an application under , seeking partition. The Assistant Collector Second Grade, Sub Tehsil Udaipur, framed the mode of partition on .
Aggrieved, Neel Chand appealed to the Collector, raising three principal objections: (i) his brother Som Dev, who was , could not be sued without appointment of a court guardian under Order 32 Rule 3 CPC; (ii) legal heirs of deceased co-sharer Ram Chand, who died in 1985, had not been brought on record; and (iii) the proposed partition would disturb his existing possession. The Collector rejected the appeal on , and the Divisional Commissioner, exercising the powers of Financial Commissioner (Appeals), affirmed that order on .
Guardianship Not Required
The High Court meticulously examined the factual matrix concerning Som Dev. Records showed that the revenue authorities made repeated efforts to serve Som Dev with summons. He was eventually served personally on multiple occasions—on , , and —and signed the summons in Hindi. Despite service, he did not appear and was proceeded against .
Justice Rewal Dua observed that Som Dev's signatures in Hindi reflected his ability to read, write, and comprehend the matter. The court rejected the petitioner's contention that being , by itself, rendered Som Dev a person of .
"Merely because Sh. Som Dev was , would not mean that Sh. Som Dev was a person of which is the fundamental requirement for proceeding under Order 32 Rule 3 of CPC. That situation will arise if it is proved that a person is incapable of protecting his interest in the subject property due to ."
The court also noted that Som Dev had been served before the appellate and revisional authorities and had himself raised no objection. Significantly, none of the other co-sharers—save the petitioner—objected to the mode of partition.
Legal Heirs Already on Record
On the second contention regarding Ram Chand's legal heirs, the High Court recorded that of the revenue authorities confirmed that the legal heirs had already been brought on record in the partition proceedings. Moreover, the petitioner did not even raise this objection in the writ petition, rendering the point .
Court's Decision
Finding no merit in any of the grounds advanced, Justice Rewal Dua dismissed the writ petition and disposed of all pending miscellaneous applications. The decision reaffirms that the need for a guardian under Order 32 Rule 3 CPC arises only upon proof of mental incapacity, not from a physical disability such as being . The ruling provides clarity for revenue courts and litigants dealing with partition proceedings involving persons with disabilities, emphasizing that capacity to protect one's interests must be assessed on a case-by-case basis.
