1. Heard Sri R.K. Pandey counsel for the petitioner and Sri Rajiv Gupta, counsel for the respondents.
2. The main issue which arises for consideration is whether in case there is a testamentary guardian designated for a person of unsound mind, he alone can act as next friend while instituting suit on his behalf or any other person interested in his welfare can also act as his next friend. Another ancillary issue is whether notice given by the next friend, on behalf of person of unsound mind, terminating tenancy under Section 106 of the Transfer of Property Act, 1882 could result in valid determination of tenancy or not. The backdrop in which the aforesaid issues arise for consideration are as follows :-
3. A suit bearing SCC No.5 of 2016 for recovery of arrears of rent and eviction of the petitioner from a shop situated in Mohalla Holiwala Kasba Hasanpur District J.P. Nagar was instituted by Ashok Kumar ('the original plaintiff') through next friend Smt. Baljati Devi, his mother. It is alleged that the plaintiff was a person of unsound mind and his next friend-Baljati Devi is her mother and natural guardian; that Case No. 98 of 2005 is pending for her appointment as guardian; that the petitioner had defaulted in payment of rent since 1.1.1997 and had failed to pay the same despite service of notice dated 6.1.2006 under Section 106 of the Transfer of Property Act and was therefore liable for eviction. The suit was contested by the petitioner by filing a written statement in which he admitted that the original plaintiff was a person of unsound mind. However, it was alleged that Smt. Baljati Devi could not act as next friend of the plaintiff as under registered will of his father Late Ramanand Gupta, dated 12.11.1996, he appointed his daughter Saroj Kumari and grand daughter Smt. Shalini Kapoor wife of Rakesh Kapoor as guardian to look after the welfare of the plaintiff. They were also given right to realise rent and to utilize the same in the upbringing of the plaintiff. Thus, according to the petitioner, Baljati Devi could not act as next friend. The suit could only be brought by testamentary guardians Smt. Saroj Kumari and/or Shalini Kapoor. It was alleged that rent upto 20.2.2007 was paid to Shalini Kapoor the testamentary guardian. Thus there was no default in payment of rent. The notice under Section 106 of the Transfer of Property Act dated 6.1.2006 was invalid, as it was not given by the testamentary guardians. It did not result in termination of the tenancy.
4. During pendency of the suit Smt. Baljati Devi, the next friend of the plaintiff died on 29.1.2010 followed by death of the plaintiff on 8.3.2012. Consequently, both the testamentary guardians namely Smt. Saroj Kumari and Smt. Shalini Kapoor were substituted. Smt. Saroj Kumari got herself substituted as plaintiff in place of the deceased plaintiff Ashok Kumar, whereas Smt. Shalini Kapoor was impleaded as proforma defendant no.2. Consequential amendments were also got incorporated in the plaint and as a result whereof the substituted plaintiff Smt. Saroj Kumari adopted the plaint case. Proforma defendant no.2 Smt. Shalini Kapoor filed a separate written statement, Paper No.118-Ga. She supported the plaint case and specifically pleaded that suit was instituted on correct facts and the same be decreed.
5. The trial court by judgment dated 31.10.2015 decreed the suit for recovery of arrears of rent, mesne profits and for eviction of the petitioner. The decree passed by the trial court has been affirmed by the revisional court with the dismissal of the revision by impugned judgement dated 21.8.2018.
6. Sri R.K. Pandey, learned counsel for the petitioner submitted that Ramanand Gupta, the erstwhile owner and landlord had appointed his daughter Smt. Saroj Kumari and grand-daughter Smt. Shalini Kapoor as guardians to look after the welfare of his son Ashok Kumar, being a person of unsound mind aged 44 years at the time of execution of the Will. It is submitted that in view of provisions of Order 32 Rule 4 (1) CPC, once there is a guardian appointed by Will, he alone can act as next friend, except in case of a person who has taken leave of the court to represent the plaintiff in place of testamentary guardian. He further submitted that the interest of Baljati Devi, through whom suit was instituted, was adverse to that of the plaintiff. In support of the said submission, he has invited the attention of the Court towards the plaint of Original Suit No.362 of 2002 instituted by Ashok Kumar through his testamentary guardians against Smt. Baljati Devi seeking injunction restraining her from selling the properties left behind by Ramanand Gupta. He further points out that in the said suit, an order of temporary injunction was passed restraining the defendant Baljati Devi from alienating the suit properties. According to him, the said suit is still pending. It is accordingly urged that the interest of Baljati Devi was adverse to that of the deceased plaintiff Ashok Kumar. He further submitted that notice under Section 106 of the Transfer of Property Act given by Smt. Baljati Devi acting on behalf of Ashok Kumar was consequently invalid and did not result in determination of the tenancy of the petitioner. According to him, only Smt. Saroj Kumari and Smt. Shalini Kapoor, the testamentary guardians were competent to act on behalf of the plaintiff.
7. On the other hand, Sri Rajiv Gupta, learned counsel for the plaintiff-respondent submitted that any person of sound mind, who has attained majority, and whose interest is not adverse to that of the plaintiff could act as next friend as provided under Order 32 Rule 4 (2) as substituted by the High Court Amendment. He further submitted that only a guardian appointed or declared by a competent authority has got a preferential right to represent a person of unsound mind but since Smt. Saroj Kumar and Smt. Shalini Kapoor were not appointed or declared as guardian by any competent authority, therefore, the prohibition contained under sub-rule (1) of Rule 4 of Order 32 would not apply. He further submitted that a testamentary guardian could not be said to be a guardian appointed or declared by competent authority. He also submitted that since Baljati Devi was mother and natural guardian of the plaintiff, therefore, she was fully competent to act as next friend. He has also taken the Court through the findings recorded by the courts below to the effect that the interest of Baljati Devi was not adverse to that of the plaintiff and therefore, according to him, there was no embargo in Baljati Devi representing her son, while instituting the suit or giving notice under Section 106 of the Transfer of Property Act.
8. There is no dispute between the parties that the original plaintiff Ashok Kumar was a person of unsound mind. By virtue of Rule 15 of Order 32, Rules 1 to 14 except Rule 2-A have been made applicable to persons of unsound mind. Order 32 Rule 1 provides that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Rule 2 provides that where a suit is instituted by or on behalf of a minor without a next friend, the defendant can apply to the court for taking off the plaint from the file. Rule 3 of Order 32 provides for appointment of guardian ad litem for minor defendant. The relevant part of Rule 4 of Order 32, as substituted by High Court Amendment, reads thus:-
"(1) Where a minor has a guardian appointed or declared by competent authority no person other than such guardian shall act as next friend except by leave of the Court.
(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has attained majority may act as next friend of a minor unless the interest of such person is adverse to that of the minor or he is a defendant or the Court for other reasons to be recorded considers him unfit to act."
9. Order 32, Rule 4 (1) uses the word "guardian" as well as 'next friend'. The word 'guardian' is not defined under Order 32 nor under any other provision of the Code of Civil Procedure. Section 4(b) of the Hindu Minority and Guardianship Act, 1956 (for short 'the Act) defines the term as follows :-
"4. Definitions.
(b) "guardian" means a person having the care of the person of a minor or of his property or of both his person and property and includes--
(i) a natural guardian;
(ii) a guardian appointed by the Will of the minor's father or mother;
10. There is no doubt that father or mother of a minor who are his natural guardian have power to appoint a guardian by Will (testamentary guardian). The said provision does not in terms apply to appointment of guardian of a person of unsound mind, but undoubtedly, the said power exist under Hindu Law. Thus, Ramanand Gupta, the father of the plaintiff was competent to appoint testamentary guardian of the person and property of his son of unsound mind.
11. Before proceeding to discuss the impact of Order 32 CPC, I may usefully refer to two more provisions from the Act i.e., Section 6, which defines natural guardians and Section 9(2) which deals with the testamentary guardians and their power :-
"6. Natural guardians of a Hindu minor.-- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or any unmarried girl-- the father and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother and after her, the father;
(c) in the case of a married girl - the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section -
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.-- In this section, the expression "father" and "mother" do not include a step-father and a step-mother."
"9. Testamentary guardians and their powers.-- (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by Will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in Section 12) or in respect of both.
(2) An appointment made under sub-section (1) shall have no effect if the father pre-deceases the mother, but shall revive if the mother dies without appointing, by Will, any person as guardian."
(3) ...........................
(4) ...........................
(5) .........................
(6) ........................
12. The Act, envisages (i) natural guardians and (ii) testamentary guardians. In respect of testamentary guardian appointed by Will of father, where the father pre-deceases the mother, the appointment will have no effect, till the mother is alive, as stipulated under Section 9(2) of the Act.
13. The Supreme Court in Nagaiah and another Vs. Smt. Chowdamma (dead) By Lrs. And another, (2018) 2 SCC 504, after a detailed consideration of the Hindu Minority and Guardianship Act, 1956 and the provision of Order 32, has explained the distinction between a 'next friend' and 'a guardian', as under :-
"6. A bare reading of Order XXXII, Rule 1 of the Code makes it amply clear that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the "next friend" of the minor. The next friend need not necessarily be a duly appointed guardian as specified under Sub-section (b) of Section 4 of Hindu Guardianship Act. "Next friend" acts for the benefit of the "minor" or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The aforesaid provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order XXXII of the Code. Order XXXII Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad litem; i.e. (a) where the suit is filed on behalf of a minor and (b) where the suit is filed against a minor. In case, where the suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas it the suit is filed against a minor, it is obligatory for the plaintiff to get the appropriate guardian ad litem appointed by the Court for such minor. A "guardian ad litem" is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs.
14. It is clear from the above that any person who is of sound mind and has attained majority, may act as next friend of a minor while instituting suit on his behalf. The next friend need not necessarily be a guardian as specified in Section 4(b) of the Act. He should be a person who could take care of the interest of the plaintiff in litigation. The only restriction is that interest of such person should not be adverse to that of the plaintiff and he should be in position to pay cost of the suit and compensation as if he was a plaintiff. He also does not require leave or permission of the court to institute the suit, unlike in case of a defendant with similar disability, who could only be represented by a guardian ad litem appointed by the court.
15. In the instant case, as noted above, the suit was instituted by the mother, who was natural guardian, acting as next friend of the plaintiff. The courts below have recorded a categorical finding of fact that Shalini Kapoor and Saroj Kumari were both married and were living away from the plaintiff. The plaintiff was living with his mother Baljati Devi and she was taking care of his welfare and interest. The revisional court has taken note of an application 25 Ga filed by the petitioner before the trial court for dismissing the suit on the ground that interest of Baljati Devi was adverse to the plaintiff. It was rejected by the trial court by order dated 22.1.2007. Against the said order, the petitioner filed SCC Revision No.10 of 2007, which was dismissed by the revisional court by order dated 17.10.2007. The revisional court in its order has noted that Ashok Kumar was living with Baljati Devi. Both of them appeared before him and the plaintiff identified his mother. The revisional court, while dismissing the revision has observed that the interest of Bajlati Devi, the natural guardian of the plaintiff, was not adverse to the plaintiff. The courts below have also held that no specific instance was brought on record which may go to show that Baljati Devi had acted in a manner prejudicial to the interest of the plaintiff. Having regard to the above facts, the courts below have held that mere filing of a suit for injunction by the plaintiff through testamentary guardians against Baljati Devi restraining her from selling the property left behind by her deceased husband would not be sufficient to infer that the interest of Baljati Devi was adverse to that of the plaintiff. These findings are not under challenge, as learned counsel for the petitioner could not show any perversity therein.
16. The main emphasis, as noted in the opening part of the judgement is upon the alleged preferential claim of testamentary guardians to act on behalf of the plaintiff. It is urged that the phrase "guardian appointed or declared by competent authority" in Order 32, Rule 4(1) is wide enough to include a testamentary guardian. Consequently, in the presence of Saroj Kumari and Shalini Kapoor, Baljati Devi could not have acted as next friend without the leave of the Court.
17. In Budhilal Monji Vs. Morarji Premji, ILR 1907 (31) Bombay, 413 the Bombay High Court has taken a view that a testamentary guardian does not fall within the phrase "competent authority in this behalf" used in Section 440 of the old Civil Procedure Code. In the above case also, the contention was that in the face of there being a testamentary guardian, the suit instituted not through whom, was not maintainable. The contention was repelled by observing thus:-
"9. He thought that the phrase "authority competent in this behalf" must mean something wider than a Court of justice, and therefore he held it must include a Hindu father purporting to appoint a testamentary guardian.
10. But then it was not pointed out to the learned Judge that by certain Acts a power of appointing guardians was vested in what might well be described as an authority competent in that behalf : See Act XXX of 1858 Section 11, Act XVII of 1885, Sections 11. 13 and 4, Act XIX of 1873 Sections 199, 193 and 3 (11), and Act XXVII of 1876, Sections 167, 168, 161and 2 so that the ground of this reasoning is considerably weakened.
11. It is clear that Section 440 does not apply to all guardians, for it would be impossible to suggest that it applies to natural guardians.
12. And if the respondents' argument is right, a guardian appointed by a Hindu father would be entitled to the benefit of Section 440 though the father himself would not.
13. I can see no reason for straining the language of the section to the extent for which the respondent contends."
18. It may not be necessary to go into the said issue as there are various provisions which goes to show that if the minor or insane plaintiff sues through next friend who is disqualified to act as such, it will not ipso facto render the decree invalid or void. Order 32, Rule 3-A provides that decree against a minor shall not be set aside merely on the ground that the next friend had an interest adverse to that of the person under disability unless it is shown that by reason of such disability, prejudice has been caused to the plaintiff. Again, under Order 32, Rule 9(2), in case where the next friend is not a guardian appointed or declared by an authority competent in this behalf and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor. It clearly reflects the legislative intent that it is open to the guardian appointed or declared by competent court to get substituted as next friend in place of the person who does not fulfill the said description. The court still has a reserve of discretion not to replace the next friend if it is of the opinion that the guardian ought not to be appointed the next friend of the plaintiff under disability.
19. The Supreme Court in Nagaiah (supra), after considering the scheme of Order 32 held in the context of a minor plaintiff, which applies on all fours to a person of unsound mind as well that :
"The main test is that there has to be a prejudice to the minor defendant for setting aside the decree. For reference, see the cases of Brij Kishore Lal v. Satnarain Lal & Ors., AIR 1954 All. 599, Anandram & Anr. v. Madholal & Ors. AIR 1960 Raj. 189 Rangammal v. Minor Appasami & amp; Ors. AIR 1973 Mad.12, Chater Bhuj Goel v. Gurpreet Singh AIR 1983 Punjab 406 & Shri Mohd. Yusuf and Ors. v. Shri Rafiquddin Siddiqui. ILR 1974 (1) Delhi 825."
20. In the instant case, after the death of Baljati Devi on 29.1.2010 and the original plaintiff Ashok Kumar on 8.3.2012, the testamentary guardians namely Smt. Saroj Kumari and Smt. Shalini Kapoor got themselves substituted. As noted above, Smt. Saroj Kumari got herself substituted as plaintiff in place of the deceased plaintiff Ashok Kumar and adopted the plaint case, whereas Smt. Shalini Kapoor, got arrayed as a proforma defendant and filed a written statement supporting the plaint case. She also deposed as DW-2 and did not assert that the interest of Baljati Devi was in any manner adverse to that of the plaintiff. Thus, even the testamentary guardians after they have come on record did not complain that Baljati Devi had acted in any manner prejudicial to the interest of the plaintiff, rather elected to ratify the acts of Baljati Devi.
21. The appointment of next friend of a person of unsound mind is to protect the interest of such person. It is the duty of the court to take care of the welfare of a person who is minor or of unsound mind so that his or her interest is not prejudicially affected. The petitioner, who was defendant in the suit, has no right to contend that Baljati Devi was not proper person to act as next friend, particularly when the persons whom the petitioner contends should have acted as next friend have chosen to adopt the plaint case in its entirety and pursued the proceedings to their logical conclusion.
22. In Dharampal Singh vs. Mool Chand, AIR 1942 Alld 248, where the mother of minor defendant was appointed as guardian ad litem in ignorance of the fact that there was a certificated guardian it was held that the decree could not be set aside in absence of proof of prejudice to the person under disability.
23. In Ram Kripal Choudhary and others vs. Mt. Munabati Kumri and others, AIR 1958 Patna 477 it has been held that provisions of Order 32, Rule 4 (1) has been enacted to safeguard the interest of person under disability and therefore he alone can challenge a decree passed against him contrary to the said provision. Even qua him, the decree is not void but only voidable:
"The procedure laid down in the proviso to Rule 4 (1) has been enacted to safeguard the interest of the minor. Therefore, it is the minor alone, who may attack the validity of a decree, if any, passed against him in a manner contrary to the provisions laid down in the proviso to the said Rule 4 (1) or allowed to be passed against him under a guardian not qualified to represent him. (Madhusudan vs. Jogendra, ILR Pat 640 (AIR 1945 Pat 133 (A)). In other words, the contravention, even if any, of this provision is not to make the decree void ab initio or nullity but only voidable."
24. One more aspect which has been rightly taken into consideration by the courts below is that Smt. Baljati Devi being the mother of the plaintiff, was in no manner divested of the power to act as his natural guardian. It has been observed that appointment of testamentary guardian by father will not deprive the mother of her right to act as natural guardian, till she remained alive, particularly when the Will of Late Ramanand Gupta do not mention about any disqualification incurred by her to act as such. In fact, in relation to a minor, the codified law under Section 9(2) of the Act quoted above, specifically preserves such power of the mother, till she is alive. This court fully concurs with the view taken in this regard by the courts below.
25. Learned counsel for the petitioner has placed reliance on judgement of this Court in Wing Commander Narendra Pratap Singh Vs. Padam Kumari Devi, AIR 1993 All 143, particularly paragraph 43 which reads thus:-
"43. Ajit Singh Panwar is not a party, even if he could act on behalf of Padma Kumari Devi. But under the law he cannot give evidence on her behalf, Rule 15 of Order XXXII, as mentioned earlier treats a person with mental incapacity or of an unsound mind at par with a minor and the Court is obliged to make a judicial enquiry so as to be satisfied that such a person is incapable of protecting his interest. A suit on behalf of a person with mental incapacity or unsound mind may be filed by the next of friend or guardian, but by leave and an order of a Court".
26. There cannot be any dispute that suit on behalf of a person with mental incapacity could be filed by next friend or guardian, but the observation made in the last line that it could only be with leave of the court, is only passing observation as in fact there was no such controversy before the court in the said case. The dispute was whether the plaintiff was a person of unsound mind or not so as to entitle his next friend to institute suit on his behalf. The Court held that consequently an enquiry was imperative as to his mental capacity, which the next friend was trying to avoid. In Nagaiah, the Supreme Court, as noted above, has clarified that where the suit is filed on behalf of minor, no permission or leave of the court is necessary for the next friend to institute the suit.
27. There is another aspect of the matter which also needs reiteration. The petitioner had filed an application before the trial court for suit being dismissed as Baljati Devi was not competent to represent the plaintiff. However, the trial court rejected the said application by order dated 22.1.2007 and it thus impliedly approved the institution of the suit through Baljati Devi. Thus, even if it is assumed that the testamentary guardian had a preferential right to act as next friend, the order of the trial court dated 22.1.2007 would tantamount to granting leave to Baljati Devi to institute the suit as next friend in preference to the testamentary guardian. In Bhagwati Prasad vs. U.P. Government, AIR 1940 Alld 202, it is held that leave of the court need not be in writing and an oral leave could be inferred from the circumstances of the case.
28. Coming to the second submission, it is noteworthy that notice under Section 106 of the Transfer of Property Act is required to be signed by or on behalf of the person giving it. Thus, a duly appointed agent or attorney or in case of a minor or person of unsound mind, his natural guardian, who may be taking care of the welfare of such person at the relevant time would be competent to give such notice. The revisional court, while repelling the contention of the petitioner that notice given through next friend Baljati Devi was invalid, has rightly observed that since the plaintiff was in her custody and she was taking care of his welfare, therefore, she was competent to give the notice. This Court finds no illegality in the view taken in this regard by the revisional court.
29. No other submission has been made by learned counsel for the petitioner.
30. The writ petition lacks merit and is dismissed.
31. At this stage, counsel for the petitioner prayed for some time being granted to the petitioner to vacate, to which learned counsel for the plaintiff-respondent has no objection.
32. Accordingly, the petitioner is granted four months time to vacate subject to his furnishing an undertaking before the trial court within a period of three weeks from today to the effect that he would handover vacant possession of the premises to the plaintiff-respondent within four months from today and also pays rent/damages payable under the decree passed by the courts below within a period of four weeks from today, failing which the protection granted hereby would not be available and it shall be open to the plaintiff-respondent to execute the decree.
Order Date :- 26.2.2019 skv (Manoj Kumar Gupta, J.)