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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Manoj Kumar Gupta, J.
Siyaram – Appellant
Versus
Ashok Kumar and Others – Respondents
Matters Under Article 227 No. 8030 of 2018
Decided On : 26-02-2019
Next Friend - Testamentary Guardian - Transfer of Property Act, 1882 - Section 106 - Summary: The court considered whether a testamentary guardian alone can act as next friend for a person of unsound mind or if any other person interested in the welfare of the person can also act as next friend. The court also discussed the validity of a notice given by the next friend, terminating tenancy under Section 106 of the Transfer of Property Act, 1882. The court held that a person of sound mind, not adverse to the plaintiff, can act as next friend. The court also emphasized that the interest of the next friend should not be adverse to that of the plaintiff and that the next friend should be in a position to pay the cost of the suit and compensation as if he was a plaintiff. The court further clarified that the appointment of a next friend is to protect the interest of the person of unsound mind and that the court has the discretion to remove the next friend if it deems fit. The court also highlighted that the appointment of a testamentary guardian by the father does not deprive the mother of her right to act as the natural guardian, particularly when the will does not mention any disqualification incurred by her to act as such. The court dismissed the writ petition and granted the petitioner four months to vacate the premises, subject to certain conditions.
Fact of the Case:
The suit was filed for recovery of arrears of rent and eviction of the petitioner from a shop by the next friend, the mother of the person of unsound mind. The petitioner contested the suit, claiming that the next friend was not competent to act as such and that the notice terminating tenancy was invalid.
Finding of the Court:
The court found that a person of sound mind, not adverse to the plaintiff, can act as next friend. It also held that the interest of the next friend should not be adverse to that of the plaintiff and that the next friend should be in a position to pay the cost of the suit and compensation as if he was a plaintiff. The court dismissed the writ petition and granted the petitioner four months to vacate the premises, subject to certain conditions.
Issues: The main issue was whether a testamentary guardian alone can act as next friend for a person of unsound mind or if any other person interested in the welfare of the person can also act as next friend. Another issue was the validity of the notice given by the next friend, terminating tenancy under Section 106 of the Transfer of Property Act, 1882.
Ratio Decidendi: The court emphasized that the interest of the next friend should not be adverse to that of the plaintiff and that the next friend should be in a position to pay the cost of the suit and compensation as if he was a plaintiff. The court also clarified that the appointment of a next friend is to protect the interest of the person of unsound mind and that the court has the discretion to remove the next friend if it deems fit.
Final Decision: The court dismissed the writ petition and granted the petitioner four months to vacate the premises, subject to certain conditions.
ORDER :
1. Heard Sri R.K. Pandey counsel for the petitioner and Sri Rajiv Gupta, counsel for the respondents.
2. The main issue which arises for consideration is whether in case there is a testamentary guardian designated for a person of unsound mind, he alone can act as next friend while instituting suit on his behalf or any other person interested in his welfare can also act as his next friend. Another ancillary issue is whether notice given by the next friend, on behalf of person of unsound mind, terminating tenancy under Section 106 of the Transfer of Property Act, 1882 could result in valid determination of tenancy or not. The backdrop in which the aforesaid issues arise for consideration are as follows:-
3. A suit bearing SCC No. 5 of 2016 for recovery of arrears of rent and eviction of the petitioner from a shop situated in Mohalla Holiwala Kasba Hasanpur District J.P. Nagar was instituted by Ashok Kumar (the original plaintiff) through next friend Smt. Baljati Devi, his mother. It is alleged that the plaintiff was a person of unsound mind and his next friend-Baljati Devi is her mother and natural guardian; that Case No. 98 of 2005 is pending for her appointment as guardian; that the petitioner had defaulted in payment of rent since 1.1.1997 and had failed to pay the same despite service of notice dated 6.1.2006 under Section 106 of the Transfer of Property Act and was therefore liable for eviction. The suit was contested by the petitioner by filing a written statement in which he admitted that the original plaintiff was a person of unsound mind. However, it was alleged that Smt. Baljati Devi could not act as next friend of the plaintiff as under registered will of his father Late Ramanand Gupta, dated 12.11.1996, he appointed his daughter Saroj Kumari and grand daughter Smt. Shalini Kapoor wife of Rakesh Kapoor as guardian to look after the welfare of the plaintiff. They were also given right to realise rent and to utilize the same in the upbringing of the plaintiff. Thus, according to the petitioner, Baljati Devi could not act as next friend. The suit could only be brought by testamentary guardians Smt. Saroj Kumari and/or Shalini Kapoor. It was alleged that rent upto 20.2.2007 was paid to Shalini Kapoor the testamentary guardian. Thus there was no default in payment of rent. The notice under Section 106 of the Transfer of Property Act dated 6.1.2006 was invalid, as it was not given by the testamentary guardians. It did not result in termination of the tenancy.
4. During pendency of the suit Smt. Baljati Devi, the next friend of the plaintiff died on 29.1.2010 followed by death of the plaintiff on 8.3.2012. Consequently, both the testamentary guardians namely Smt. Saroj Kumari and Smt. Shalini Kapoor were substituted. Smt. Saroj Kumari got herself substituted as plaintiff in place of the deceased plaintiff Ashok Kumar, whereas Smt. Shalini Kapoor was impleaded as proforma defendant No. 2. Consequential amendments were also got incorporated in the plaint and as a result whereof the substituted plaintiff Smt. Saroj Kumari adopted the plaint case. Proforma defendant No. 2 Smt. Shalini Kapoor filed a separate written statement, Paper No. 118-Ga. She supported the plaint case and specifically pleaded that suit was instituted on correct facts and the same be decreed.
5. The trial court by judgment dated 31.10.2015 decreed the suit for recovery of arrears of rent, mesne profits and for eviction of the petitioner. The decree passed by the trial court has been affirmed by the revisional court with the dismissal of the revision by impugned judgment dated 21.8.2018.
6. Sri R.K. Pandey, learned counsel for the petitioner submitted that Ramanand Gupta, the erstwhile owner and landlord had appointed his daughter Smt. Saroj Kumari and grand-daughter Smt. Shalini Kapoor as guardians to look after the welfare of his son Ashok Kumar, being a person of unsound mind aged 44 years at the time of execution of the Will. It is submitted that in vi
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