Rajesh Medhi and Anr. Vs Dr Shyam Bhadra Medhi and 4 Ors.

Heard Mr. B. D. Deka, learned counsel for the petitioners and Mr. A. C. Sarma, learned Senior Counsel, assisted by Mr. G. Bharadwaj, learned counsel for the respondents.

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2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the Order, dated 03.06.2024, passed by the learned Civil Judge (Sr. Div.) No. 1, Kamrup (M), Guwahati, in Petition No. 4053/2023, in Title Suit No. 164/2016.

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3. It is to be noted here that vide impugned order, dated 03.06.2024, the learned Civil Judge (Sr. Div.) No. 1, Kamrup (Metro), Guwahati (hereinafter, learned Trial Court); has dismissed the petition No. 4053/2023, filed by the petitioners; praying for appointment of Sri Rajesh Medhi and Kingshook Chowdhuri as guardians of the proforma respondent No. 5/defendant No. 2, in the Title Suit No. 164/2016; who is suffering from Schizophrenia and is mentally

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unsound.

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4. Mr. Deka, learned counsel for the petitioners submits that the respondent Nos. 1 to 4 herein, as plaintiffs, have instituted one title suit, being Title Suit No. 164/2016, against the proforma respondent No. 5 and her mother, Late Bandana Medhi, who were arrayed as defendant Nos. 2 & 1 respectively; for declaration, partition and injunction, in respect of a plot of land measuring 3 Kathas 3 Lechas, covered by Dag No. 120 of K.P. Patta No. 325, of Village Sahar, Guwahati, Part-III, under Mouza Guwahati, in the district of Kamrup (Metro), Assam.

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4.1. Mr. Deka also submits that the defendant No. 1 had filed her written statement in the said title suit; wherein, it has categorically been pointed out that the defendant No. 2 was mentally challenged, and during the pendency of the Title Suit No. 164/2016, the defendant No. 1, i.e., the mother of the defendant No. 2; had suffered demise and as such, there was a requirement for appointment of a legal guardian ad litem of the defendant No. 2, and after the death of the defendant No. 1, the defendant No. 2 has been living with the petitioners herein, and in the said title suit, the respondent Nos. 1-4, as plaintiffs, have filed an application under Order XXXII Rule 5 of the CPC, for appointment of a guardian ad litem, of the defendant No. 2 and thereafter, the learned Trial Court, vide order, dated 27.02.2023, struck off the name of the defendant No. 1, i.e., the mother of the defendant No. 2, from the record and directed the plaintiffs to propose the name of a guardian for the defendant No. 2.

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Thereafter, the present petitioners had moved an application under Order XXXII Rule 3 and 15 of the CPC, seeking for their appointment as guardians ad

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litem of the defendant No. 2, which was registered as Petition No. 4053/2023; stating therein that Late Bandana Medhi, during her lifetime, had made arrangements for her mentally challenged daughter, i.e., the defendant No. 2; by executing a Will on 08.02.2020; whereby, she had appointed the petitioners as two executors of the said Will and they have also been vested with the responsibility of taking care of her daughter; and that after her death, her properties shall devolve upon a trust, namely “Surendra Nath Medhi Charitable Trust”. She had also executed a Trust Deed, bearing Deed No. 860, dated 08.02.2020; wherein, the present petitioners were named as Trustees. But, the learned Trial Court, vide impugned order, dated 03.06.2024, had dismissed the petition, by holding that in absence of a probate, the Will left behind by Late Bandana Medhi cannot be taken into consideration and as such, the inquiry regarding the appointment of a guardian ad litem would be held in the backdrop of the names suggested by the plaintiff.

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4.2 Mr. Deka also submits that the plaintiffs have suggested the names of few advocates and the learned Trial Court has directed them to remain present in the Court on the next date, and Mr. Deka further submits that though, the petitioners have mentioned in their petition about the Will executed by the defendant No. 1, i.e., the mother of the defendant No. 2, whereby, the petitioners herein were appointed as executors; yet, they have never claimed any right under the said Will; and that the defendant No. 2 is now presently in the custody of the petitioners and that a Trust was also created by the defendant No. 1, to look after the properties and the wellbeing of her daughter, i.e., defendant No. 2. But, the learned Trial Court, ignoring Rule 4(1) & 4(2) of Order XXXII of the CPC, had passed the impugned order and the same suffers from perversity and under such circumstances, the learned counsel for the

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petitioners, has contended to set aside the impugned order and to remand the matter to the learned Trial Court to consider the same a fresh; in view of Rule 4(1) & 4(2) of Order XXXII of the CPC.

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5. Per Contra, Mr. A. C. Sarma, learned Senior Counsel appearing for the respondents submits that the impugned order, so passed by the learned Trial Court, suffers from no infirmity or illegality, requiring the interference of this Court. However, Mr. Sarma submits that he has no objection if the matter is remanded to the learned Trial Court to consider the same a fresh, without interfering with the impugned order, dated 03.06.2024.

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6. Having heard the submissions of the learned counsel for both the parties, this Court has carefully gone through the documents placed on record, also perused the impugned order, dated 03.06.2024 and also perused the relevant provisions of law.

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7. There is no dispute regarding the mental illness of the defendant No. 2, in the Title Suit No. 164/2016, and in the said title suit, the respondent Nos. 1-4 had filed an application for appointment of a guardian ad litem for the defendant No. 2 and the petitioners herein also had filed an application for their appointment as Guardian at litem of the defendant No. 2.

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8. It is also not in dispute that the defendant No. 2, is presently under the custody of the petitioners herein and as per the Will of the defendant No. 1, i.e., the mother of the defendant No 2; the petitioners herein are appointed as executors of the Will and also, as trustee of the Trust, which was created to look after her properties after her death and also to look after the wellbeing of her daughter, i.e., the defendant No. 2. But, in spite of the same, the learned Trial Court has opted to appoint some advocates as the guardian ad litem, as

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suggested by the respondent Nos. 1-4; who had also filed an application for appointment of guardian ad litem over the defendant No. 2.

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9. It is the contention of Mr. Deka, learned counsel for the petitioners that if advocates are appointed as guardian, who are not acquainted with the facts and circumstances of the case, it may not be in the interest of the unsound minor. On the other hand, the petitioners herein were appointed as trustee of the said Trust and also, as Executors in the said Will of the defendant No. 1 and as such, the choice of natural guardian must get precedence over the advocates, whose names were suggested by the plaintiffs in the said title suit.

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10. It is to be noted here that Rule 4(1) of the Order XXXII of the CPC, provides that-

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“ (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit .”

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And the proviso of the said rule, provides that-

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“ The interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.”

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And, Rule 4(2) of the Order XXXII of the CPC, provides that-

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“ (2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be

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recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.”

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And, Rule 4(4) of the Order XXXII of the CPC, provides that-

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“ (4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested or out of the property of the minor, and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.”

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11. In the instant case, the learned Trial Court, vide impugned order, dated 03.06.2024, had dismissed the petition filed by the petitioners and decided to consider the names suggested by the plaintiffs side, so as to ascertain the feasibility of appointing a guardian at litem. The ground assigned by the learned trial Court for dismissing the petition is that the Will, which was annexed with the application filed by the petitioners and by which, the mother of the defendant No. 2, had appointed them as executor; is yet to be probated.

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12. Indisputedly, the names suggested by the respondent Nos. 1-4 are the advocates, who are not familiar with the facts and circumstances of the case. On the other hand, the petitioners herein were chosen by the natural guardian, i.e., the mother of the defendant No. 2, and were appointed as Trustee of the property of the defendant No. 1 and were also assigned with the duty of looking after the wellbeing of the defendant No. 2, after the death of the defendant No.

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1; and also, as executor of the a Will, and in that view of the matter, the petitioners herein are entitled to receive precedence over the advocates as indisputedly, the defendant No. 2 is presently under their custody.

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13. As such, the interest of the present petitioners does not appear to be adverse to that of the defendant No. 2. However, this aspect, as provided under Order XXXII Rule 4(1), proviso 1 and Rule 4(2) of the CPC; was ignored by the learned Trial Court and in that view of the matter, the impugned Order, dated 03.06.2024, of the learned Trial Court, fails to withstand the legal scrutiny and on such ground, the same is interfered with.

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14. Accordingly, the matter stands remanded to the learned Trial Court to give a fresh consideration to the petition filed by the petitioners, in the light of Order XXXII Rule 4(1) proviso (1) and Rule 4(2) of the CPC.

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15. The parties are directed to appear before the learned Trial Court, within a period of 1 (one) week from the date of receipt of certified copy of this order.

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16. In terms of the above, this Civil Revision Petition stands disposed of.

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JUDGE

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Comparing Assistant

Rajesh Medhi and Anr. v. Dr Shyam Bhadra Medhi and 4 Ors.

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Rajesh Medhi and Anr. v. Dr Shyam Bhadra Medhi and 4 Ors.

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