Dismissed

Bee Jhani Bee v. Smt. Safia Begum

Telangana HC15 Mar 2013CRP/4847/2012

Case brief

AI extract

What is this about?

Single bench disposed of two revision petitions challenging orders directing a 92-year-old woman to appear in court and appointing an Advocate Commissioner for mental fitness. The court dismissed revisions, held the trial court justified its proceedings, and directed a day-to-day trial given the petitioner's age.

What did the court decide?

Tried directed to conduct day-to-day trial and decide all issues including maintainability of the suit.

Bee Jhani Bee Vs Smt. Safia Begum — Pension and Retirement Benefits | Telangana HC (2013)

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HONOURABLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION Nos.4470 AND 4847 OF 2012

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COMMON ORDER:

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C.R.P. No.4470 of 2012 has been filed challenging the orders dated 20-07-2012 in I.A. No.348 of 2012 in O.S. No.106 of 2012 passed by the learned Senior Civil Judge, Suryapet.

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2. C.R.P. No.4847 of 2012 has been filed challenging the orders dated 27-08-2012 in I.A. No.443 of 2012 in the same suit.

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3. Since the parties are one and the same, the main issues involved are also one and the same and both the impugned orders have been passed in the same suit, they are being disposed of by this common order.

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4. The petitioner herein, who is respondent in the interlocutory applications, is defendant No.1, and respondent Nos.1 to 3 herein, who filed the interlocutory applications, are plaintiffs in the original suit before the trial Court.

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5. For the sake of convenience, the parties are hereinafter referred to as they arrayed in the suit before the trial Court.

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6. Brief facts of the case are as follows:

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(a) Defendant No.1 is an old woman of 92 years. Defendant No.4 is her son and defendant Nos.2 and 3 are her daughters.

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(b) Plaintiff No.1 is the wife of defendant No.4. Plaintiff Nos.2 and 3 are the daughters of plaintiff No.1 and defendant No.4.

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Marriage of the plaintiff with defendant No.4 was performed in 1982.

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(c) Defendant No.1 has purchased the house bearing

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No.1-3-127/B (old) (New No.1-4-191) through a registered sale deed in 1981. According to the plaintiffs, this property was purchased with the money got by defendant No.1 and defendant No.4 from the employment benefits of the husband of defendant No.1. The case of the plaintiffs is that though the house was purchased in the name of defendant No.1, defendant No.4 has a share in the said house since it was purchased by the money of his father. Defendant Nos.1 and 4, and the plaintiffs were living together. It appears that after the death of the husband of defendant No.3, she started living with defendant No.1. It appears that plaintiff No.1 was sent to United States of America for doing a private job and she was sending huge amounts from America. However, defendant No.4 was addicted to vices and when plaintiff No.1 returned back from America, he used to harass her and ill treat her and thus differences arose between plaintiff No.1 and defendant No.4. Plaintiffs’ further case is that to deprive the property of plaintiff Nos.2 and 3, defendant No.1 was taken to the office of the Sub-Registrar, Suryapet, and a gift settlement deed was said to have been executed by her on

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20-04-2012 in favour of defendant No.2. Hence, the plaintiffs’ case is that by playing fraud, said gift settlement deed was obtained from defendant No.1 and their specific case is that defendant No.1 has lost her mental ability and identifying power nearly three years ago and she does not understand anything at present. Therefore, they filed the suit seeking cancellation of the registered gift settlement deed (Hiba) dated

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20-04-2012 said to have been executed by defendant No.1 and registered in the office of the Sub-Registrar, Suryapet.

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(d) The relationship between the parties is admitted. The other allegations of the plaintiffs have been denied. The specific case of the defendants is that defendant No.1 is hale and healthy and that she has purchased the property with her own funds and that defendant No.1 is absolute owner of the suit property and she can dispose of the same at her will. It is also their case that defendant No.4 has purchased one house and six (6) house plots at Nalgonda, two plots at Yellareddyguda and one house at Hyderabad with the amounts sent by plaintiff No.1.

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It is their case that defendant No.4 had obtained a loan of Rs.15,00,000/- from the Police Department in which he is working as Constable for purchase of the property and that after returning from America, plaintiff No.1 threatened defendant No.4 to transfer all the properties in her name, as such, he has transferred the said properties in the name of plaintiff No.1. It is their case that defendant No.4 was compelled to give talaq to plaintiff No.1 according to Muslim Law.

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It is also their case that plaintiff No.1 has filed a domestic violence case before the learned IV Metropolitan Magistrate, Hyderabad. After filing the suit, plaintiffs filed I.A. No.348 of 2012 under Order – V Rule – 3 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) praying the Court to direct defendant No.1 to appear in person on the date fixed by the Court to know her mental state of mind. It appears that plaintiff No.1 filed a complaint against defendant Nos.2 to 4 for the offences punishable under Sections 420 and 406 of the Indian penal Code, 1860 (for short ‘IPC’) read with Section 34 IPC on the file of the learned Judicial Magistrate of First Class, Suryapet. It appears that she also filed an application to appoint an Advocate Commissioner to take defendant No.1 to the Doctor to know her mental capacity. However, the same was dismissed and plaintiff No.1 seems to have preferred C.R.P. No.771 of 2012 and later it was withdrawn.

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Referring to the judgment in LEELASON BREWERIES LIMITED, BHOPAL v. BHEEMIREDDY LAKSHMINARAYANA REDDY^[1] , wherein it was held that no particular procedure is prescribed to declare a man as of unsound mind, the trial Court took a view that when a dispute is raised by either parties in respect of the mental status of a party, Court has to conduct preliminary enquiry, and therefore, defendant No.1 has to be summoned under Order – V Rule – 3 of CPC and accordingly allowed the petition in

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I.A. No.348 of 2012 directing defendant No.1 to appear in person before the Court on 27-07-2012. Then, another application was filed under Order – XXXII Rule – 15 of CPC and Order - X Rule 4(2) read with Section 151 of CPC to declare that defendant No.1 is of unsound mind and in that application, the trial Court appointed an Advocate Commissioner to take defendant No.1 to the hospital of Mental and Health Care Center, Erragadda, Hyderabad and to get her examined by the competent Doctors. The lower Court allowed these two applications and they are under challenge in these revisions.

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7. The subsequent order was passed in I.A. No.443 of 2012, when defendant No.1 did not appear before the Court as per the orders of the trial Court in I.A. No.348 of 2012 dated 20-07-2012. The main observation of the trial Court is that the burden is on the plaintiffs to prove that defendant No.1 is of unsound mind and that the petition filed by them for appointment of guardian is pending. The trial Court also opined that since defendant No.1 did not appear before the Court, the Court has lost the opportunity to examine her with regard to her mental status.

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8. Plaintiffs filed counter affidavit in C.R.P. No.4470 of 2012.

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9. Heard the learned counsel on either side and perused the

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material on record.

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10. The main submission of Sri K. Narasimha Chary, learned counsel for defendant No.1 (revision petitioner), is that the order passed by the trial Court directing defendant No.1 to appear before the said Court in person is neither maintainable in law nor on facts of the case. It is vehemently argued that the trial Court failed to consider the defence of the defendants and that the suit itself is not maintainable and also contended that the question of sharing joint family property does not arise since the parties are Muslims. His main submission is that defendant No.1 herself has engaged an Advocate and she filed the written statement and that she is hale and healthy and that a Pardhanashin lady cannot be asked to appear before the Court under Section 132 CPC. He has also argued that plaintiff No.1 being the divorced wife of defendant No.4 cannot act as guardian of their minor children. It is also argued that the learned trial Judge erred in allowing the application under Order – X Rule – 4(2) of CPC and also under Order – XXXII Rule – 15 of CPC, when the relief under Order – X Rule 4(2) CPC is rejected, no relief can be granted under Order – XXXII Rule – 15 CPC.

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11. The learned counsel for the plaintiffs, Sri P. Prabhakar Reddy, submitted that defendant No.1 is aged about 92 years and that defendant No.2 in collusion with the Sub-Registrar, Suryapet, has brought the fabricated gift settlement deed in to existence, and therefore, plaintiff No.1 filed a criminal complaint and that the learned Magistrate appointed an Advocate Commissioner and that, defendant No.1 was taken to the Institute of Mental Health, Erragadda, Hyderabad, where a team of Doctors examined her and that the Advocate Commissioner filed an interim report dated 08-10-2012 in Criminal M.P. No.2621 of 2012. It is also contended that defendant

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No.1 was examined by a Committee of Psychiatrists as per the directions of the learned Magistrate.

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12. Now the points that arise for consideration are as follows:

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(1) Whether the suit filed by the plaintiffs is maintainable?

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(2) Whether the trial Court is justified in asking defendant No.1 to appear before it?

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(3) Whether the trial Court is justified in appointing an Advocate Commissioner to take defendant No.4 to the Hospital for Mental Health?

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POINT No.1:

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13. Learned counsel for the defendant has referred to Order – VII

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Rule – 1 of CPC in support of his contention that the plaint shall contain the particulars, whether the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect. Though in the cause title of the plaint, defendant No.1 is not shown as a person of unsound mind, pleadings show that the plaintiffs have pleaded to that effect. The learned counsel for the plaintiff has also referred to Order – XXXII of CPC which deals with the suits by or against minors and persons of unsound mind. Order – XXXII Rule -1 of CPC envisages that every suit by minor or a person of unsound mind shall be instituted in his name by a person, who in such suit shall be called next friend of the minor/person of unsound mind. Sub-Rule (1) of Rule – 2 Order – XXXII of CPC envisages that where a suit is instituted by or on behalf of the minor without the next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. This sub-rule (1) of

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Rule – 2 seems to be applicable where a suit has been instituted without the next friend.

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In this case, defendant No.1 is alleged to be a person of unsound mind. The suit is not instituted by or on behalf of a person of unsound mind. Therefore, sub-rule (1) of Rule - 2 Order – XXXII of CPC seems to be not applicable to the present case. The relevant provision appears to be Rule – 3 of Order – XXXII of CPC, which is as follows:

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“Guardian for the suit to be appointed by Court for minor defendant:-

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(1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

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(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

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(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

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(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor, or, where there is no father, mother or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

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(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.

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(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

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14. In support of his contention, learned counsel for defendant No.1 has also relied on the decision of the Madras High Court in BALAKRISHNAN v. BALACHANDRAN^[2] . In that case, when summons sent to a person were returned with endorsement that he was insane, without any further enquiry his brother was appointed as manager and guardian ad litem of the alleged lunatic. When the said order was challenged, it was argued that the learned District Munsif failed to hold an enquiry into the alleged lunacy of that person, it was held that the Court has to follow strictly the procedure prescribed in Order – XXXII Rule - 15 of CPC before declaring a person a lunatic. Accordingly, it was held that:

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“That procedure involves a judicial enquiry which consists normally of two parts: (1) questioning the lunatic by the Judge himself in open Court, or in chambers, in order to see whether he is really a lunatic and of unsound mind, and (2) as the Court is generally presided over only by a layman, to send the alleged lunatic to a doctor for report about his mental condition after keeping him under observation for some days.”

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15. Reliance is also placed on the decision of this Court in SAMALLA KRISHNAMURTHY v. SAMALA SASILA AND ANOTHER^[3] .

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In that case, suit was filed seeking a declaration that the sale deed executed by plaintiff No.1 is null and void on the ground that it was executed by a person, who is of unsound mind. Along with the plaint, an application was filed by the wife of plaintiff No.1 to appoint her as his next friend and guardian. The said petition was supported by the affidavit and also three affidavits of the persons belonging to the same village. This Court observed that Order – XXXII Rule - 15 of CPC does not contemplate that there must be a preliminary enquiry and a finding that a person, by reason of unsoundness of mind, was incapable of protecting his interest and that all that is needed is that there should be some prima facie proof to satisfy the Court that the person by reason of unsoundness of mind or mental infirmity, is incapable of protecting his interests. It was further held that a plain reading of Order – XXXII Rule -15 of CPC shows that no doubt, the Court has to conduct an enquiry before permitting the next friend to institute a suit, but the method and the manner in which the enquiry has to be conducted is not contemplated in the rule; in the absence it was further observed that:

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“In the absence of any express provision in the Rule as to the nature of the enquiry that should be conducted, it is not possible to say that the procedure adopted by the trial Court is not in conformity with the Rule.”

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16. Learned counsel for defendant No.1 has also placed reliance on the decision of this Court in LEELASON’s Case (Supra 1), wherein an application filed by the wife of a person said to be a person of unsound mind to appoint her as guardian of the said person,

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was dismissed after examination of the material on record holding that the trial Court conducted an elaborate enquiry having examined the plaintiff in detail and having not satisfied with the replies given by the plaintiff and taking into consideration the view of the doctors and others. It is also observed that firstly the Court has to question the alleged lunatic in order to satisfy and nextly by subjecting the person to a medical test by a doctor.

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17. Thus, it is clear that according to Order – XXXII Rule – 15 of CPC, firstly the Court should conduct an enquiry before permitting the next friend or guardian to represent the person of unsound mind. It is also observed that the method and manner in which the enquiry has to be conducted is not indicated in the Rule. Thus, no particular procedure has been prescribed under Rule – 15 Order – XXXII of CPC. What is required is, the Court should prima facie satisfy that the person is of unsound mind before declaring him so and permitting the guardian to come on record. Reliance is also placed on the decision of this Court in KHAJA MAJEEDULLAH v. SMT. JAMEELUNNISA

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BEGUM AND OTHERS^[4] , wherein it was held that where a person is not adjudicated to be of unsound mind, it is mandatory for the Court before appointing a guardian to conduct an enquiry into the alleged mental infirmity. Reliance is also placed on the decision of this Court in BHOGI SOMESWARA RAO v. KOKI DEEPA AND OTHERS^[5] for the same principle in support of his contention. Reliance is also placed on the decision of the Madras High Court in A.S. MOHAMMAD IBRAHIM UMMAL ALIAS SAHUL HAMEED UMMAL v. SHAIK MOHAMMAD MARAKAYAR AND ANOTHER^[6] , wherein it was observed that when the question of unsoundness of the mind of the plaintiff arises not only under Order – XXXII Rule – 15 of CPC, but also as a substantial issue in the suit, the Court has ample jurisdiction to

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enquire into the question whether the plaintiff is really by reason of unsoundness of mind or mental infirmity incapable of protecting her interest. It is also observed that it is open to the Court to seek medical assistance. Reliance is also placed on the decision of the Madras High Court in RAMANATHAN CHETTIAR v. SOMASUNDARAM CHETTIAR^[7] in support of the same principle.

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18. What is required is an enquiry has to be conducted as required under Rule – 3 of Order – XXXII of CPC. There cannot be any doubt about the same. It appears that the Court has to appoint a guardian and before appointing a guardian, the Court is required to conduct an enquiry as discussed above. In the case on hand, neither defendant No.1 is declared as a person of unsound mind nor any guardian has been appointed to the person and property of defendant No.1. That stage has not yet reached. Therefore, the above referred decisions do not help the plaintiffs.

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19. A reference is also made to Section 63 of the Lunacy Act which also contemplates that the District Court has to conduct a detailed enquiry in whose jurisdiction the property of the alleged lunatic is situated.

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20. The main submission of learned counsel for defendant No.1 is that unless a declaration is obtained under Section 62 of the Indian Lunacy Act, 1912 (for short “Lunacy Act”), no person can be declared as lunatic or mentally ill. Lunatic has been defined under Section 3(5) of the Lunacy Act. Lunatic means an idiot or a person of unsound mind. Section 62 of the Lunacy Act reads as follows:

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“Power of District Court to institute inquisition as to persons alleged to be lunatic:- Whenever any person not subject to the

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jurisdiction of any of the Courts mentioned in section 37 is possessed of property and is alleged to be a lunatic, the District Court, within whose jurisdiction such person is residing may, upon application, by order direct an inquisition for the purpose of ascertaining whether such person is of unsound mind and incapable of managing himself and his affairs.”

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As per Section 63 of the Lunacy Act, application for such inquisition may be made by any relative of the alleged lunatic or by any public Curator appointed under the Succession (Property Protection) Act 1841, or by the Government Pleader or by the Collector of the District in which the property of the lunatic is situated. The District Judge has given power to appoint a guardian and manager to manage the estate of the lunatic or to appoint a guardian of his person.

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21. As far as the present case is concerned, the trial Court has to conduct an enquiry as required under Order – XXXII Rule – 3 of CPC. Since no particular method of enquiry is prescribed, the Court would be justified to issue a direction to produce before the Court or to get him examined by the competent Doctors. A fair enquiry, after giving reasonable opportunity to all the parties, has to be conducted to find out the truth.

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22. The learned counsel for the plaintiffs further submitted that since as per the directions of the learned Magistrate, defendant No.1 was produced before the Medical Superintendent, Institute of Mental Health and she was examined, the orders of the learned Magistrate have been complied with. The interim report issued by the Superintendent, Government Hospital for Mental Care, Hyderabad, is as follows:

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“With vide reference Patient by Smt. B. Janibee W/o Asin Ali was examined out patient basis with registration No.A/o 167146 dated 16-10-2012. Information was collected from daughter and psychiatric examination was done. She was examined by the committee of psychiatrists. Patient has hearing problem. Unable to walk and has to be bought (Sic. brought) in wheel chair. Detailed mental status examination and higher cognitive examination was done. She was alert consious and co-operated for examination. She shows deficits in the area of memory, identification of people. There are no mood disturbances or Hallucinatory behavior. In view of the above findings she require evaluation by neuro Physicion, ENT surgeon, orthopedic surgeon.”

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23. In the circumstances, the trial Court is justified in directing defendant No.1 to appear before the Court and when she was not produced, the trial Court was also justified in appointing an Advocate Commissioner to take her to Mental Hospital to know her mental state of mind.

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24. It is argued that plaintiff No.1, who is wife of defendant No.4, cannot initiate proceedings challenging the right of defendant No.1 to execute a gift deed. Whether plaintiff No.1, who is wife of defendant No.4, can initiate such proceedings or not cannot be decided in these revisions. Similarly, the question whether plaintiff No.1 can act as guardian of plaintiff Nos.2 and 3 during the life time of defendant No.4 also cannot be decided in these revisions. The answer is same to the argument that the suit is not maintainable as far as plaintiff Nos.3 and 4 are concerned, since according to the learned counsel for defendant No.1 adding them as parties amounts to misjoinder of the parties. That question also cannot be gone into in these revisions. Though it is a fact that defendant No.1 is not shown as a person of unsound mind in

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the cause title of the plaint, and whether on that ground, the plaint has to be rejected or not also cannot be decided in these revisions.

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25. In the above circumstances, it is for the defendants to raise the question of maintainability of the suit and the trial Court to frame an issue with regard to issue of maintainability of the suit and then to decide the same. Whether it is a question of law or whether it is a mixed question of fact and law and whether the same can be tried as a preliminary issue is also a point to be determined by the trial Court. Therefore, point No.1 cannot be decided in these revisions. Accordingly, point No.1 is answered.

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POINT No.2:

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26. It is submitted that under Section 132 of CPC, women, who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempted from personal appearance in Court. Reliance is also placed on the decision of the Madras High Court in M.A. MOHAMED THAMBI MARICAYAR v.

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M.O. SHAIK FARID MARICAYAR AND ANTOHER^[8] , wherein while dealing with

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Sections 41, 42 and 64 of the Lunacy Act read with Section 132(1) of CPC, it was observed that a Court cannot insist on production of the alleged lunatic who is a gosha lady, in the Court. In that case, a person filing application to appoint him as guardian of his wife, who, according to him, was a lunatic; on his application, the District Magistrate directed for production of the alleged lunatic. Then, the petitioner therein filed an application under Sections 151 of CPC and Sections 61 and 64 of the Lunacy Act so as to have inquisition regarding the alleged lunatic conducted in any place except in Court or such other similar public places, as alleged lunatic is a gosha lady not

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accustomed to attend the Courts. In this case, it is not the case of the plaintiffs that they made request to the Court to have inquisition regarding the alleged unsoundness of mind of defendant No.1 to be conducted in any place except in the Court. Reliance is also placed on the decision of the Allahabad High Court in SUNDAR DEVI v.

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DATTATRAYA^[9] , wherein it was observed that the Court has no power to insist that a pardhanashin lady must attend the Court to give evidence. The facts of above referred two cases are entirely different and not applicable to the facts of the present case. In the later case, a Commissioner was appointed to record the evidence of a person. The Commissioner suspected that the person was weak and tutored. Then, an order was made directing that person to appear before the Court for conducting cross-examination and when she did not appear, the suit was dismissed for default. In the above circumstances, it is observed that if the learned Subordinate Judge thought that there was any substance in the allegations of the defendants, he could have directed her evidence being recorded again with such precautions and safeguards as seems to be reasonable consistently with her right to be exempted from appearing in the Court and she cannot be compelled to appear in public according to

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Section 132 of CPC. When no such ground was taken before the trial Court, the plaintiffs are again argued the said point in revision. It has to be seen whether such woman has changed her mode of life and abandoned the customs and manners referred in the Section. If she has abandoned such customs and manners, she cannot claim exemption. Reliance is also placed on the decision of this Court in AKASAM PEDA SANYASI AND OTHERS v. SRI RAJAH K.V.G.

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PRABHAKARA^[10] for the above principle. Further, reliance is placed on the decision of this Court in SALMA BI v. MOHD.

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EBRAHI M^[11] , wherein Mack, J., observed:

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“In my opinion the time has come when Section 132(1) should be given a fresh judicial interpretation to accord with the customs and manners of the country which have greatly changed, and may be described so far as the custom of purdha is concerned to be a transitory condition. The view that I am inclined to take is as customs and manners of the country stand today no Muslim Lady or purdanashin lady has an absolute right to claim exemption from personal appearance in Court. I would not go so far as to say that no purdanashin lady should be examined on commission. Whether or not this should be done would depend upon the facts of each case, the position of the lady in the litigation, the nature of the evidence she has to give and the circumstances in which she is placed. In a matter of this kind, when the section itself is based on customs and manners of the country which cannot but change it is extremely difficult to fall back upon judicial precedents when customs and manners in public opinion as regards them were widely different. If we judges continue to follow judicial precedents for several years ago in this matter without keeping abreast of changing times we shall be exposing ourselves to the criticism of being janitors of the purdha system and acting as impediments in the way of the emancipation of women from its confines.”

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27. Therefore, it appears that the exemption is not absolute particularly when no such ground was taken before the trial Court. Accordingly, there is no substance in the case of defendant No.1. So, point No.2 is decided against defendant No.1.

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POINT No.3:

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28. In view of the discussion made in point No.1, since the trial Court is empowered to conduct a detailed enquiry and as no specific

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procedure has been prescribed with regard to mode of enquiry, I cannot find fault with the order of the trial Court in appointing an Advocate Commissioner.

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29. In the above circumstances, I am of the view that there are no grounds to allow these revision petitions. However, in view of the advanced age of defendant No.1, the trial Court is directed to conduct day-to-day trial and decide all the controversial issues including the issue of maintainability of the suit. This order does not come in the way of the parties filing any application to amend the cause title etc. It is also made clear that the trial Court uninfluenced by any of the observations made supra may dispose of the case independently in accordance with law.

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30. With the above observations and directions, both these Civil Revision Petitions are dismissed. Consequently, the Miscellaneous Petitions, if any, pending in these revisions shall stand closed. No costs.

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______________________ B. CHANDRA KUMAR, J

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March 15, 2013. PV

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[1] 2002(1) ALT 361 [2] 1956 (1) MLJ 459

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[3] AIR 1983 AP 174

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[4] 2002 (1) L.S. 214

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[5] 2006 (4) ALD 669