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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
BATTU DEVANAND, J.
Mahanthi Bhavani Shankar - Appellant
Versus
Karubothu Muthyalamma - Respondent
Civil Revision Petition Nos. 2034 and 2036 of 2019
Decided On : 15-12-2020
Civil Procedure Code,1908 - Section 151 - Order 32, Rule 1and 15 - Constitution of India,1950 - Article 227 - Gift deed – Mutation - Whether allegations made by the next friend are correct - Whether the plaintiff on the date when the suit was instituted was minor or insane and was consequently incapable of protecting his interests - whether if an inquiry is held, though not at the time of filing the suit, and it is found that the plaintiff was actually of unsound mind at the time of the institution thereof, the non-holding of the inquiry at the initial stage vitiates the suit –
Finding of the court : Court below committed mistake in not examining the mother of petitioner personally before appointing petitioner as guardian, next friend - Court Correctness of such an order during trial of suit, he would not be permitted to raise objection that plaintiff was not minor or insane at time when suit was instituted or that he was incapable of protecting his interests, for first time in - Requirement of holding an inquiry in such a case is, under rule, to be complied with either before or during pendency of suit - An appeal, as it is well settled, is a continuation of suit, and hence, since in present case an inquiry was held and it was found that respondents and Bridget were of unsound mind, it has necessarily to be held that requirements of had been duly satisfied - Court may also point out that what is relevant is that at time of institution of suit, a person is of unsound mind and in such cases, suit can be instituted by such person only through a next friend –
Result : Petitions are allowed
ORDER :
Battu Devanand, J.
1. These Civil Revision Petitions have been filed under Article 227 of the Constitution of India, to revise the common order, dated 06.06.2019 in I.A. No. 736 of 2012 in O.S. No. 364 of 2012 and I.A. No. 772 of 2013 in O.S. No. 298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram.
2. The petitioner is plaintiff in O.S. No. 364 of 2012 and defendant in O.S. No. 298 of 2013 and the respondent is the defendant in O.S. No. 364 of 2012 and plaintiff in O.S. No. 298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram.
3. The respondent herein filed I.A. No. 736 of 2012 in O.S. No. 364 of 2012 and I.A. No. 772 of 2013 in O.S. No. 298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram, seeking to appoint the respondent as a guardian, next friend of the plaintiff in O.S. No. 364 of 2012 and defendant in O.S. No. 298 of 2013 and to prosecute the suit on her behalf, as she is suffering from unsoundness of mind.
4. The parties hereinafter will be referred to as arrayed in I.A. No. 736 of 2012 in O.S. No. 364 of 2012 and I.A. No. 772 of 2013 in O.S. No. 298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram.
5. As per the averments made in the affidavit filed in support of I.A. No. 736 of 2012 in O.S. No. 364 of 2012 and I.A. No. 772 of 2013 in O.S. No. 298 of 2013, on the file of the I Additional Senior Civil Judge, Rajamahendravaram, the case of the respondent herein as thus:
6. The case of the petitioner is that the plaintiff/defendant by name Karubothu Muthyalamma is the mother of the petitioner. The said Muthyalamma got plaint schedule property under a gift deed, dated 30.09.1999 from one Anapu Lakshmi and since then she is in possession and enjoyment of the property with her own right, title and interest and paying taxes to the Municipality. Prior to 2004, she has been suffering from mental derailment and she was referred to Dr. Kasturi Subrahmanyam, Sanjivi Hospitals, T. Nagar, Rajahmundry. The Doctor diagnosed that she is a patient of psychic disorder and advised to take her to the Psychiatric expert. Right from the year, 2004 onwards, Muthyalamma has been taking treatment under Dr. Karri Rama Reddy in his hospital. She lost the power of discretion, incapable of knowing the nature of the act, she doing on account of her unsoundness of mind. Consequently, on the death of the husband of Muthyalamma, one Mahanthi Durga Raju, father of Mahanthi Bhavani Sankar obtained the sale deed from Muthyalamma in respect of plaint schedule property in favour of Mahanthi Bhavani Sankar without paying any consideration by fraud, misrepresentation and undue influence. The transaction is not real and the same is brought into existence. She has been paying the taxes to the entire property including plaint schedule property and the petitioner intends to meet the same by construction of a house in it. As the existence of the document in the public records is a clog over the title of the plaintiff. She requested Mahanthi Bhavani Sankar to cooperate for the cancellation of the document, but he did not respondent. The petitioner is the best person to safeguard the interest of Muthyalamma. Under those circumstances, Muthyalamma filed a suit in O.S. No. 364 of 2012, being a mentally retarded woman, represented by her daughter, next friend and guardian. In the said suit, I.A. No. 736 of 2012 was filed by the petitioner herein under Order 32, Rule 1 R/w Rule 15 and Section 151 of C.P.C., praying to appoint her as guardian and next friend of the plaintiff and to prosecute the suit on her behalf as she is suffering from unsoundness of mind.
7. The suit in O.S. No. 298 of 2013 was filed by the respondent herein for permanent injunction restraining the defendant, her men and agents from every interfering with peaceful possession and enjoyment of the plaint schedule property in an extent of 97 1/2 sq. Yards purchased by way of a registe
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