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2012 Supreme(Ker) 225
High Court of Kerala
V. RAMKUMAR & K. HARILAL
Krishnankutty
Versus
Veena M.G
RFA.No. 345 of 2011
Decided on: 06-03-2012
For the Appellant:V. Suresh, G. Sudheer, K.A. Jibin Joseph, Advocates.
For the Respondent:M/s. S.V. Premakumaran Nair, R.T. Pradeep, Advocates.
Headnote:
Civil Procedure Code, 1908 - Order 32 - Rule 15 - Suit for specific performance of Agreement - Application for formal permission to appoint a guardian - Appellant/Defendant alleged to be a person of unsound - Whether in case of appointment of a next friend for a plaintiff who is alleged to be incapable of protecting his rights by reason of unsoundness of mind or mental infirmity, there need only be some prima facie proof to prove the infirmity - Trial Court not consider her request and on merits and decreed the suit - Same is challenged in the appeal by wife/next friend - Challenged - Held, It is well settled that a decree against lunatic without guardian being appointed to represent such lunatic, is a nullity and it is not even necessary to set aside such decree and a prayer for declaration that such decree is null and void will be sufficient - Defendant is a person of unsound mind, a guardian who does not have any interest adverse to that of defendant shall be appointed to represent defendant - Such guardian can be wife of defendant, in case, she satisfies requirements of law - Wife of defendant or any other person is appointed as guardian of defendant, it shall be open to guardian to adopt written statement which was already filed in case or file any amendment thereto - If after enquiry, court below comes to conclusion that defendant is not a person of unsound mind, in that case defendant shall be permitted to file written statement within such time fixed by court below - Suit shall, thereafter, be disposed of in accordance with law after giving both sides an opportunity of being heard - Appeal is disposed of
1. In this appeal filed through his next friend under Sec. 96 read with Order XLI Rule 1 C.P.C., the appellant who was the sole defendant in O.S. 191 of 2008 on the file of the Subordinate Judge's Court, Neyyattinkara, challenges the Judgment dated 12-11-2010 passed by the Subordinate Judge in the above suit.
THE PLAINTIFF'S CASE
2. In the aforementioned suit instituted by the respondent herein she inter alia alleged as follows:-
The plaint schedule property admeasuring 32 cents of land in Ottasekharamangalam Village was acquired by the defendant as per Ext. B1 sale deed dated 4-7-1983. On 16-07-2008 the defendant executed Ext.A1 agreement in favour of the plaintiff agreeing to sell the plaint schedule property within three months thereof for a price fixed at the rate of Rs.12,000/- per cent. The total sale consideration payable was Rs. 3,84,000/-. The plaintiff paid a sum of Rs. 25,000/-as advance. The plaintiff, on different dates, requested the defendant to measure out the property and to execute the sale deed. But the defendant did not do so. Hence, the plaintiff issued Ext.A2 lawyer notice dated 30-07-2008 calling upon the defendant to execute the sale deed on or before 6-8-2008. The defendant did not accept the notice. The defendant committed breach of contract by entering into another agreement for sale with one Babusenan. The plaintiff is ready and willing to perform her part of the agreement and has the necessary funds. A decree for specific performance of the contract may, therefore, be passed.
DEFENCE OF THE DEFENDANT'S WIFE
3. Ajithakumari, the wife of the defendant styling herself as the next friend of the defendant filed a written statement contending inter alia as follows:-
The defendant is a person of unsound mind and his wife may be granted permission to file a written statement on his behalf. The defendant did not execute any agreement in favour of the plaintiff and does not have the mental capacity to execute any such agreement. The defendant did not receive any advance amount. The contract is not enforceable at the instance of the plaintiff. The suit may, therefore, be dismissed.
THE TRIAL
4. The trial Court did not consider the request of Ajithakumari to grant her permission to act as the next friend (actually it should have been a request for permission to act as guardian) of the defendant who was alleged to be a person of unsound mind. That Court, however, settled the issues on the basis of the written statement filed by Ajithakumari and proceeded to try the suit on merits without a demur from the side of the plaintiff as well. After trial, the court below passed the impugned judgment and decree in the suit as prayed for. The learned Subordinate Judge inter alia recorded the following findings:-
i) The defendant has not filed a vakalath or written statement. The written statement filed by Ajithakumari, the wife of the defendant is not proper. (paras 11 and 12)
ii) No enquiry under Order XXXII Rule 15 C.P.C. was conducted with regard to the alleged unsoundness of mind since the wife of the defendant did not make any application for the same. Hence it is to be presumed that the defendant is capable of defending the suit. (Para 12)
iii) Ext. A4 judgment and A5 decree in O.S. 694 of 2008 on the file of the I Addl. Munsiff's Court, Neyyattinkara and the testimony of DW2 show that the defendant has no mental incapacity. Ext.A4 judgment reveals that in the enquiry conducted with regard to the alleged mental incapacity of the defendant it was held that the defendant was not suffering from any unsoundness of mind. (para 14) .
iv) The execution of Ext.A1 agreement for sale or the receipt of advance amount, are not denied in the written statement. (Para 11).
v) Ext.A1 agreement for sale is proved by P.Ws 1 and 2 and, therefore the plaintiff is entitled to specific performance of Ext.A1 agreement. (para 16)
It is the said judgment which is assailed in this appeal filed through next friend.
5. We hear
