Judicial inquiry into mental capacity is mandatory before appointing a next friend to protect a party's interests in legal proceedings.

JUDGMENT

Petitioner is the defendant in O.S.No.84 of 2007 on the files of the Munsiff-Magistrate's Court, Pattambi. The respondent, who is none other than petitioner's brother, has filed the suit, seeking a declaration that the sale deed executed by him in the defendant's name is void and consequently, to partition plaint schedule property and allot him 2/7 share. The declaration was sought on the ground that the respondent is a person undergoing treatment for epilepsy and mental illness and at the time when the sale deed was executed, respondent was not having mental capacity to execute the document. O.S.No.84 of 2007 was taken up along with O.S.No.111 of 2007 pertaining to the same property and filed by the defendant in O.S.No.84 of 2007 along with his other siblings. During trial, the respondent was examined as PW3. During the cross-examination of PW3, he was found to be incapable of giving rational answers. Thereupon, the cross-examination was stopped abruptly. Though respondent's wife filed an application seeking to get herself appointed as the next friend, that application was also dismissed. The trial court discarded the evidence of the respondent, decreed O.S.No.84 of 2007 and dismissed O.S.No.111 of 2007. Aggrieved, the respondent and the plaintiffs in O.S.No.111 of 2007 filed separate appeals. By Exhibit P1 common judgment, the appeals were allowed and the suits remanded with a direction to conduct enquiry under Order XXXII Rule 15 of CPC and thereafter, to reach a finding as to the acceptance of evidence of PW3 and if necessary, to appoint a next friend and proceed with the trial of the suit in accordance with law.

2. After remand, the respondent's wife filed Exhibit P2 application seeking appointment as the respondent's next friend. The specific averments in Exhibit P2 is that, though, at the time of filing the suit respondent was having only mental abnormality, he is presently suffering from chronic psychosis, which can be managed only through regular medication. The petitioner filed Exhibit P3 objection stating that the respondent is capable of protecting his interest and no proper enquiry under Order XXXII Rule 15 has been conducted. By Exhibit P4 order, trial court appointed the respondent's wife as his next friend. The order revealed that the respondent was examined as part of enquiry under Order XXXII Rule 15. In the enquiry, the respondent was found to be incapable of giving rational answers. Finding that, treatment details of the respondent had been produced during the earlier trial and further cross-examination had been discontinued on finding the respondent to be incompetent to testify as a witness, the trial court proceeded to hold that a detailed enquiry under Order XXXII Rule 15 is unnecessary. The original petition is filed challenging Exhibit P4 order.

3. Heard.

4. Before proceeding to consider the legal contentions, I am compelled to express anguish and concern about the manner in which the trial court has brushed aside the specific directions of the appellate court. In Exhibit P1 judgment, the appellate court had observed that the respondent had filed O.S.No.84 of 2007, and had contested O.S.No.111 of 2007 in his individual capacity. It was also noted that the respondent had been cross-examined for three days before stopping the examination abruptly. At the same time, trial court dismissed the application for appointing respondent's wife as his next friend. The appellate court also observed that, in spite of the contradictory findings, trial court did not call for a medical report for assessing the mental capacity of the respondent. It was based on the above observations that the appellate court directed proper enquiry under Rule 15 of Order XXXIII CPC to be conducted and to take decision on the acceptability of the evidence tendered by the respondent, based on such enquiry.

5. Surprisingly, in spite of the clear directions in Exhibit P1 judgment, trial court has relied on the medical evidence adduced