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2022 Supreme(Online)(Mad) 86810
MADRAS HIGH COURT
Honourable Mr Justice R. PONGIAPPAN
A.SHEIK DAWOOD – Appellant
Versus
SUBRIYUTH BEGUM – Respondent
SA/306/2010
A deaf and dumb person may be considered to be suffering from mental infirmity and entitled to the protection of Order 32 Rule 15 of the Code of Civil Procedure, which requires prior permission to file a suit through a next friend.
Headnote:
PARTITION - SUIT FOR - DEAF AND DUMB PERSON - REPRESENTATION BY NEXT FRIEND - VALIDITY - MENTAL INFIRMITY - INTERPRETATION - ORDER 32 RULE 15 OF CODE OF CIVIL PROCEDURE - APPLICABILITY - PROOF OF INCAPACITY - NECESSITY - PURCHASE OF PROPERTY - SOURCE OF FUNDS - BURDEN OF PROOF - ANCESTRAL PROPERTY - SALE PROCEEDS - USE FOR PURCHASE - EVIDENCE - ABSENCE - DISMISSAL OF SUIT - JUSTIFICATION.
Fact of the Case:
The plaintiff, a deaf and dumb person, filed a suit for partition of the suit property, alleging that it was purchased from the income realized from the ancestral property of his family. The defendants, his mother and brother, contested the suit, claiming that the property was purchased from the sale proceeds of the jewels owned by the mother and that the plaintiff had no right to claim any share in it.
Finding of the Court:
The trial court allowed the suit, but the lower appellate court reversed the findings and dismissed the suit. The High Court upheld the lower appellate court's decision, holding that the plaintiff had failed to prove that the suit property was purchased from the income realized from the ancestral property and that the suit was not maintainable as the plaintiff had not obtained prior permission to file the suit through a next friend.
Issues: 1. Whether the wife can act as a next friend for her husband who is deaf and dumb without obtaining prior permission?2. Whether it can be presumed that the suit property is joint family property?
Ratio Decidendi: 1. Order 32 Rule 15 of the Code of Civil Procedure applies not only to a person adjudged to be of unsound mind, but also to a person of weak mind.2. Mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness. Weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order 32 Rule 15.3. Such infirmity can also be caused by physical defects like deafness or dumbness, whereby a person is made incapable of communicating his wishes, views or thoughts to others who are not acquainted with him.4. If such a person is before the court in a suit or proceedings either as plaintiff or defendant, the court has a jurisdictional obligation to conduct an enquiry as to whether the person is capable of protecting his own interests.5. If in the judicial enquiry, if necessary and if required, conducted with the assistance of an expert, it is found that such person is incapable of protecting his interests in the suit or proceedings before the court, the court has an obligation to appoint a next friend for such person.6. The burden of proving that the suit property was purchased from the income realized from the ancestral property lies on the plaintiff.
Final Decision: The High Court dismissed the appeal and confirmed the judgment and decree of the lower appellate court dismissing the suit.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.12.2021
PRONOUNCED ON : 05.01.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.No.306 of 2010
and M.P.No.1 of 2010
A.Sheik Dawood
Deaf and dumb rep. by his
Next Friend Wife S.Aysha Bi.
... Appellant/Plaintiff
Vs.
1. Subriyuth Begum
2. A.M.T.Basur Ali
3. M.Abdul Rahman Sahib (Died) ... Respondents/Defendants
[R3 died – recorded as per memo [CSR No.5005] dated 12.02.2021
vide Court order dated 31.03.2021 made in SA No.306 of 2010]
[R1 and R2 - LRs of the deceased R3 viz., M.Abdul Rahman Sahib as
per memo dated 19.11.2021 (presented at Court) vide Court order
dated 19.11.2021 made in SA No.306 of 2010 and in M.P.No.1 of
2010]
Prayer:- This Memorandum of Second Appeal is filed under Section
100 of Code of Civil Procedure, against the Judgment and decree
dated 09.02.2009 made in A.S.No.57 of 2008 on the file of the
Additional District Judge, FTC-I, Erode, reversing the judgment
and decree dated 31.03.2008 made in O.S.No.710 of 2003 on the
file of the I Additional Subordinate Judge, Erode.
For Appellant
: Mr.D.Balachandran
For Respondents : Mr.N.Manokaran [for R1 & R2]
R3-Died
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J U D G M E N T
The plaintiff in O.S.No.710 of 2003, on the file of the
learned I Additional Subordinate Judge, Erode, has preferred this
Second Appeal.
2. Before the trial Court, the present appellant filed a
suit seeking the relief of partition to divide the suit property
into four equal shares by metes and bounds with reference to good
and bad soil and allot one such equal share to the plaintiff.
The learned 1st Additional Subordinate Judge, Erode, by judgment
and decree dated 31.03.2008, allowed the suit and granted the
decree, as prayed for.
3. Challenging the same, the respondents/defendants
preferred an appeal in A.S.No.57 of 2008 on the file of the
learned Additional District Judge (FTC-1), Erode and by judgment
and decree dated 09.02.2009, the learned Additional District
Judge (FTC-1), Erode, allowed the appeal and reversed the
findings arrived at by the trial Court. Being dissatisfied with
the said findings, the plaintiff in the above referred suit is
before this Court.
4. For the sake of convenience, hereinafter the parties
are referred to, as per their litigative status before the trial
Court.
5. The laconic averments made in the plaint, are as
follows:
(i) The plaintiff is deaf and dumb and represented by his
wife as a next friend of him. The 2nd defendant in the suit is
the brother of the plaintiff. Both the plaintiff and the 2nd
defendant are the sons of the 1st defendant. The plaintiff's
father name is M.Abdul Rahman Sahib. They had ancestral
properties at Lakkapuram Village, Erode Taluk. Out of the income
realised from the ancestral properties and joint exertion of the
plaintiff's family, the suit properties were purchased in the
name of the 1st defendant by virtue of the sale deed dated
21.10.1960 with very old tiled house.
(ii) Subsequently, the plaintiff's family sold the
ancestral properties as well as borrowed the amount jointly by
mortgaging the properties with Erode Co-operative Housing Society
and put up the terraced building in the suit properties.
Subsequent to that, the plaintiff's grand father Mohideen Shabib
died, leaving behind the plaintiff and the defendants as his only
legal heirs to succeed his assets. As such the plaintiff and the
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defendants are entitled to common 1/3rd share in the suit
properties. In the suit property, except the house portion,
wherein the defendants are residing, other portions are leased
out to third parties and the rental amounts realised from the
tenants are utilized for discharging the mortgaged debt, which
was availed from the Erode Cooperative Society.
(iii) After t
