The National Trust Act does not eliminate the necessity for representation under Order XXXII when determining the capabilities of individuals with mental disabilities in legal proceedings.

JUDGMENT

Does the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 , override Order XXXII of the Code of Civil Procedure, 1908 ?

2. The original petition is filed by the fifth defendant in O.S No.221/2017 of the Court of the Munsiff, Muvattupuzha suit, to set aside the common order in I.A Nos. 1 and 2 of 2021.

3. The first respondent, through her next friend, has filed the suit against the petitioner and the respondents 2 to 5, for a declaration that the deeds and a will in the ‘lis’ are not binding on her and for recovery of possession of the plaint schedule property.

4. The first respondent has alleged in the suit that she is the owner of the plaint schedule property. Her son ― the second respondent ― has perpetrated a fraud on her by registering a sale deed in respect of the plaint schedule property, in connivance with the ofÏcials of the Muvattupuzha Sub-Registry OfÏce, in favour of the late E.P.Varkey, the father of the fifth respondent and grandfather of the fourth respondent. The first respondent is mentally retarded and of unsound mind. She never desired to sell her property. Neither negotiation nor an agreement was executed between the first respondent and E.P.Varkey. The first respondent has not received the consideration as recited in the sale deed. The third respondent, the wife of the fourth respondent, is the sister of the first respondent. E.P.Varkey and respondents 2 to 4 knew that the first respondent is mentally retarded and a person of unsound mind. E.P.Varkey had executed a will in favour of respondents 3 to 5, who in turn ― after the death of E.P.Varkey ― executed sale deeds in favour of the petitioner trust. The sale deeds and the will are not binding on the first respondent. Hence, the suit.

5. The petitioner and the fifth respondent have filed their written statements. They have contended that the medical certificate produced by the first respondent shows that she is only mentally retarded. If that be the case, she has to be represented by a guardian appointed under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (in short, ‘National Trust Act’) and not under the Code of Civil Procedure (in short ‘Code’).

6. The next friend appointed by the court below had filed IA No.1/2021 for leave to retire from the ofÏce of the next friendship after substituting a person named Shiju.V.Paulose in his place. The proposed next friend had also filed IA No.2/2021 to appoint him as the next friend of the 1st respondent. The respondents 3 to 5 and the petitioner filed separate written objections to both applications. Without considering the objections, the court below has allowed the applications by the impugned common order, which is unsustainable in law. Hence, the original petition.

7. Heard; Smt.Sumathi Dandapani, the learned Senior Counsel appearing for the petitioner and Sri.P.Fazil, the learned counsel appearing for the first respondent.

8. Smt.Sumathi Dandapani argued that the first respondent has alleged in the plaint to be a mentally retarded person. Therefore, she has to be represented by a guardian appointed under the provisions of the National Trust Act and not by a next friend appointed under Order XXXII of the Code. The disability certificate issued by the Medical Board shows that the first respondent is mentally retarded; the certificate is valid for three years and shall not be used for legal purposes. The first respondent’s next friend has acted adversely towards her interest. Therefore, if the first respondent wants to prosecute the suit, she should seek recourse to the provisions of the National Trust Act. The impugned order is wrong and is liable to be set aside.

9. Sri.P.Fazil, countered the above submissions by contending that the National Trust Act has no application to the case at hand. The Act is applicable only when a person with a disability, as defined