There has to be adequate materials to come to a conclusion, that a person has to be represented by a guardian.

(Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the order dated 06.06.2005 passed by the learned District Munsif Judge, Gobichettipalayam in I.A. No. 633 of 2004 in 0.S.No.193 of 2004. )

The Civil Revision Petition is filed against the order dated 06.06.2005 in I.A.No.633 of 2004 in 0.S.No.193 of 2O04 the file of the learned District Munsif, Gobichettipalayam, in discharging the Guardian.

2. The petitioner is the plaintiff in the suit. The petitioner, who is the son of the first defendant/respondent has filed a suit for permanent injunction restraining the defendants 1 and 2 from selling and against defendants 3 and 4 from purchasing ‘A’ scheduled property and further reliefs in respect of ‘B’ scheduled property. The plaintiff and the second defendant in the suit are the sons of the first defendant and they form a Joint Hindu Family. The family owns considerable landed properties and was doing money lending business. The said business was done in the name of a firm C.P.Kandasamy Mudaliar and Sons and for income tax purpose, a partition deed was made on 02.03.1964, during the life time of his grand-father. The said deed is sham and a nominal document.

3. The properties described as Item Nos.1 and 2 in ‘B’ schedule are constructed out of joint family funds. The respondent due to old age, physical and mental weakness became incapable of managing the suit properties from 1997 and that he was taken care of either by the petitioner or his wife. The respondent preferred to live in his native place. He was senile and neurotic and treated by a Neurologist. In the year 2000, when the petitioner left for Erode, he made arrangements to take care of the respondent. Taking advantage of his absence and the mental infirmity of his father, the second defendant (his brother) exercised undue influence over his father and made arrangements to deprive the petitioner of his due share in the family properties by trying to sell away the suit properties.

4. The second defendant has filed a Written Statement and denied the averments made in the plaint. He further contended that the partition deed dated 02.03.1964 is valid and binding, and as per the deed, the respective parties are in possession and enjoyment of the properties. Though the respondent was staying in Gobichettipalayam along with the petitioner for medical treatment, he changed his decision and returned to Chettipalayam to live with his wife. The respondent is capable of managing his properties as well as the joint family house at Chettipalayam. The allegation that the respondent was coerced, that there was undue influence and the further allegation of attempt to dispossess the petitioner from the residential house, shown as item 2 of 'B' Schedule was also denied. The second defendant prayed for dismissal of the suit.

5. Earlier, the petitioner has filed a petition, I.A. No.570/2002, under Order 32 Rule 4 r/w Order 32 Rule 15 Civil Procedure Code to appoint a guardian to the respondent, contending inter alia that the respondent is not sane, mentally infirm and incapable of looking after his own affairs. The respondent was suffering from advance senility, loss of memory, loss of discretionary powers of worldly affairs and prayed for the appointment of respondent#18;s wife, Mrs. M.A. Nagarathinam as a guardian or a Court Guardian, to represent him to conduct the suit.

6. The respondent has filed a counter affidavit to the above petition, wherein he has stated that he was able to manage the affairs relating to the suit properties, that he was capable of looking after his own affairs, his physical and mental condition was alright. He was treated by a Doctor at Erode about five years back when there was loss of memory and now he has recovered. Therefore, there is no necessity to appoint a guardian. Further, he has engaged an Advocate to defend him in the present suit. He has also filed a declaration to that effect. The Lower Cour