An enquiry under Order 32 Rule 15 of the Code of Civil Procedure is necessary to assess the mental infirmity of a plaintiff before admitting the plaint and issuing summons.

Nishita Mhatre, J.

1. This appeal is directed against the order passed by the learned Single Judge on 8th August, 2016. By the impugned order, the learned Single Judge has directed the Special Officer who was appointed by an order dated 14th May, 2015 to act as a commission to ascertain if Radha Devi, the plaintiff/respondent is capable of deciding for herself whether legal steps should be taken in respect of any of her properties. The commission is to act in the presence of a Senior General Physician nominated by the Superintendent or In-charge of the S.S.K.M Hospital.

2. Radha Devi Karnani, the plaintiff/respondent was widowed in 1966. One of her sons, Rajendra pre-deceased Radha Devi. His property has devolved on his two daughters, Rashmi Bubna, Shrutika Doshi (deceased), besides his mother, Radha Devi. Radha Devi then executed a Gift Deed in favour of Mahendra, the appellant herein, her youngest son by which the property of Rajendra which devolved on her was gifted to Mahendra.

3. Rashmi, the grand-daughter of Radha Devi through Rajendra, filed the present suit, claiming to be the next friend of Radha Devi, praying for the cancellation of the Gift Deed. It has been pleaded in the plaint, inter alia, that Radha Devi was mentally feeble being over 90 years of age and that she was not in a position to take any independent decisions with respect to herself, much less her properties. Therefore the gift deed executed in 2012 in favour of Mahendra, who lived with his mother, was not valid.

4. An application being G.A. No. 1575 of 2015 has been filed by Rashmi praying that an enquiry be conducted by the Court by examining the plaintiff to satisfy itself regarding the existence of circumstances which require the appointment of a next friend to protect the plaintiff’s interest in suing the respondent, in terms of Order 32 Rule 15 of the Code of Civil Procedure. An order was passed on 14th May, 2015 appointing the Special Officer. On 8th June, 2015 the Special Officer submitted her report and pursuant to the order passed by the learned Single Judge, the appellant filed an affidavit-in-opposition to the application being G.A. No. 1575 of 2015. An affidavit affirmed by Radha Devi has been annexed to the affidavit-in-opposition in which she states that she did not intend to file any suit against Mahendra nor had she ever instructed Rashmi to file any suit or application on her behalf nor had she permitted her to act as her next friend. Rashmi has filed an affidavit-in-reply contesting the claim made in the affidavit-in-opposition.

5. G.A. No. 1840 of 2015 has been filed by the appellant for rejection of the plaint or in the alternative, for dismissal of the suit. Both the aforesaid applications being G.A. No. 1575 of 2015 and G.A. No. 1840 of 2015 were heard together by the learned Single Judge when the impugned order was passed.

6. The Special Officer’s report indicates that Radha Devi was in no apparent physical discomfort and was aware of her surroundings. She also answered questions lucidly and without hesitation. In Paragraph No. 10 of her report, the Special Officer has mentioned that on being asked whether she knew anything about the family business or property, Radha Devi replied in the negative and stated that whenever her sons requested her to sign any document, she did so and she did not involve herself in the family business or properties. She stated that she was not interested in the details relating to either the business or property of the family or any bank work.

7. In these circumstances, the learned Single Judge has passed the impugned order in which he has permitted 10 to 15 questions to be put to Radha Devi on behalf of Rashmi and 10 questions on behalf of Mahendra, primarily to ascertain whether Rashmi or any other close relative of Radha Devi or a rank outsider should be appointed as next friend and given charge of proceedings if the suit requires to be continued at all. The learned Judge has further directed th