In matters of appointing a guardian ad litem for a mentally infirm major, the court must conduct a proper judicial inquiry and allow the parties to adduce evidence to ensure justice is done.

Pandrang Row, J.

1. This is a petition to revise the order of the Subordinate Judge of Devakottai dated 31st October, 1939, dismissing an application made under Order 32, Rule 15, Civil Procedure Code, for the appointment of a guardian ad litem of the fourth defendant in O.S. No. 208 of 1932 on his file. The application was made necessary by reason of the fact that after the suit had been finally disposed of by this Court in appeal, an application was presented on behalf of the fourth defendant, who is a major, by his mother as guardian ad litem to apply the provisions of the Madras Agriculturists Relief Act (IV of 1938) to the decree passed in the appeal. That petition to apply the provisions of the Madras Agriculturists Relief Act as well as this petition for the appointment of the mother as the guardian ad litem were both remitted to the lower court for disposal. Reliance had been place 1 in support of the application for appointment of a guardian ad litem on the provisions of Order 32, Rule 15, Civil Procedure Code. The case put forward before the Court below was that the fourth defendant, though a major, was mentally infirm and unable to manage his affairs. The lower court instead of holding a regular judicial inquiry which is contemplated by Rule 15 appears to have thought that it was sufficient to rely on the previous history of the litigation and on its own opinion formed after looking at the fourth defendant and eliciting answers to some questions. It would appear that the petitioner was desirious of adducing evidence especially in the shape of a doctors certificate, but no opportunity was given for this purpose as the lower court was of opinion that the production of the medical certificate would not advance the case any further, a view which it is difficult to justify in the circumstances. There is no doubt that in a matter of this kind where the consequence of a dismissal of the petition would be to prevent the application of the provisions of the Madras Agriculturists Relief Act to a case to which they may apply, it was incumbent on the court to hold a regular judicial inquiry and desirable to invite the parties to adduce proper evidence even if the parties were somewhat indifferent, for, otherwise justice could not be done. It seems as if the petitioner must have been under the impression that the date on which the petition was finally disposed of was not the date on which evidence was to be taken but that the fourth* defendant was merely to be produced and that some other date would be fixed for inquiry. In any case I have no doubt that the disposal of this petition has been very unsatisfactory and that serious injustice might be done if things are allowed to remain in the present state. There has been no inquiry of the kind contemplated by law in this matter and the order made by, the Subordinate Judge without proper inquiry must be deemed to be an order passed in the irregular exercise of his jurisdiction. The learned Judge says that it may be that the fourth defendant is not very intelligent or a little weak in intellect.

2. Then he goes on to observe that the fact that he is a man of weak intelligence is not a sufficient ground to hold that he is an insane man or to appoint a guardian-ad-litem for him. This proposition is one which cannot be accepted as correct. It depends certainly on the degree of weakness of intelligence. If the weakness is very great and such as to make the fourth defendant incapable of protecting his interest when being sued or when suing he would certainly come within the protection given to such persons by Order 32, Rule 15. Moreover, the lower court appears to have relied too much on the fact that the fourth defendant appeared in Court when called upon, a perfectly natural proceeding when it is remembered that he was asked to be present and he was brought by his own mother to Court. Then again, it is said that the fourth defendant was able to give coherent answers after underst