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DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

NAME OF THE TOPIC:

SUIT AGAINST UNSOUND MIND PERSON

NAME OF THE SUBJECT:

CIVIL PROCEDURE CODE

NAME OF THE FACULTY:

Prof. BHAGYALAKSHMI ma’am

Name of the Candidate: Sk. Roshan

Roll No : 2018LLB083
Semester : 5th Semester
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Acknowledgement:

I would sincerely forward my heartfelt appreciation to our respected C.P.C professor, Prof.
Bhagyalakshmi Mam for giving me a golden opportunity to take up this project regarding
“Suit against unsound mind person”. I have tried my best to collect information about the
project in various possible ways to depict clear picture about the given project topic.
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TABLE OF CONTENTS

1. TABLE OF CASES…………………………………………………..………..…04

2. ABSTRACT………………………………………………………..……..………05

3. INTRODUCTION…………………………………………………..………..…..06

4. UNSOUND MIND PERSON…………………………………….………………06

5. GUARDIAN……………………………………………………………………….06
i) Appointment of Guardian and his/her role…………………………………06

6. PROCEDURE TO BE FOLLOWED REGARDING THE SUIT AGAINST THE

UNSOUND MIND PERSON……………………………………….…………….07

7. CONSEQUENCES OF NOT APPOINTING THE GUARDIAN OR NEXT

FRIEND…………………………………………………………………………….07
8. ORDER-32 RULE-15…………………………………………………………..….07

9. CASE ANALYSIS-1………………………………………………………...……..07

10. CASE ANALYSIS-2……………………………………………………………….12

11. CONCLUSION………………………………………………………………...…..15

12. BIBLIOGRAPHY…………………………………………………………………15
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CASE LAW CITATION

1. Ram Chandra v. Mansingh 1968 AIR 954
2. Tirtha Pradhan v. Balabhadra Pradhan AIR 1993 Ori 50
3. Shiv Baran Singh v. Board of AIR 1993 All 247
Revenue
4. Binoy Bhushan Choudhary & ors v. AIR 2014 Gau 50
Rekha Rani Deb
5. Rajkumar v. Rameshchand & Ors (1999) 8 SCC 29
6. Nathu Singh v. Rajvati & Ors 2016(8) ADJ 567

ABSTRACT
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A legal system that bases itself in justice, equity and good conscience must have provisions to
ensure that fair justice is meted out to all sections of citizens that come before it. Naturally,
since all citizens are not equally placed, special provisions need to be made for some to
ensure protection of their rights. Minors and Persons of Unsound Mind are persons that can
be easily exploited due to their mental incapacity, anticipating that they might be cheated, ill-
treated or trapped in a fraudulent device, there are several provisions to ensure their
protection. Order XXXII is one such provision which ensures that rights of such persons are
protected. It contains a set of rules to apply to each case concerning minors and persons of
unsound mind and has measures to ensure that such persons are protected not only against the
opposite persons in the concerned case but also from adverse interests of their own guardian
or next friend.

Code of Civil Procedure authorises the Court to exercise powers to dismiss the suit, when it is
filed by a person of unsound mind. Provisions of Code of Civil Procedure makes it clear that
how to deal with the suit filed by or again for the beneficial object to take care of a minor or
person of unsound mind, as the case may be in such suit, when the suit is filed without next
friend by a minor or a person of unsound mind. Rule 2 suggests that the Court in the suit,
until the defect is remedied by the minor or a person of unsound mind getting himself
properly represented by a next friend.

INTRODUCTION:
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Order XXXII of the Civil Procedure Code explains about the concept of suits by or against
minors and persons of unsound mind. Order XXXII of CPC is only applicable when the
cases or suits are related to the concept of:

i. To be instituted at the cause of a minor/ person of unsound mind

ii. To be instituted against a minor/ person of unsound mind.

In Civil Procedure Code, the main purpose behind this enactment of Order XXXII is to
protect the interests of the minors and also the unsound mind persons. The Common law
explains about the position of those people who are unable to understand the nature and
consequences of their action ought not to be liable for their actions.

UNSOUND MIND PERSON:

Unsound mind is a term that denotes lunacy and insanity. Under law, a person with an
unsound mind is considered incompetent to go to trial. The term is used in statutes. Spouse of
a person with unsound mind can claim divorce under the ground of insanity. Wills can be
contested if there is ample proof that the testator was of unsound mind. Conveyances by
persons having unsound mind who are tinder guardianship is void.

GUARDIAN:

A Guardian is a person who is appointed to look after another person or the property
belonging to a particular person. His/ her duty is to take the legal decisions on behalf of the
person or the property belonging to the particular person. He/she has to take care orr protect
the person for whom they were appointed as a guardian.

APPOINTMENT OF GUARDIAN AND HIS ROLE:

The Guardian is for the suit is appointed by the Court and if the court is satisfied that the
person is of unsound mind then the guardian can be appointed. The order for the appointment
can be received by making an application in the name and behalf of the minor and the person
who was appointed as a guardian will be terminated on retirement or removal or death.

PROCEDURE TO BE FOLLOWED REGARDING THE SUIT AGAINST UNSOUND

PERSON
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The court will conduct a preliminary enquiry before proceeding with the suit and if the
person is seemingly unable to protect his/ her interest when suing or being sued then the
protection will be given under Order-32 Rule 15. Being a deaf and dumb person and since he
suffers from mental infirmity, it is submitted that he could not have given a valid consent
without a next friend. The order passed in proceedings where such a person was not given the
assistance of a next friend is null and void. Without a proper enquiry under Order 32 Rule 15
of the Civil Procedure Code, the Court could not have passed an order for maintenance, it is
submitted.1

CONSEQUENCES FOR NOT APPOINTING THE GUARDIAN OR NEXT FRIEND:

It is now a well-settled principle that, if a decree is passed against a minor without

appointment of a guardian, the decree is a nullity and is void and not merely voidable. This
principle becomes applicable to the case of a lunatic in view of r. 15 of O. 32 of the Code of
Civil Procedure, so that the decree obtained against Ram Lal was a decree which had to be
treated as without jurisdiction and void2. In these circumstances, the sale held in execution of
that decree must also be held to be void.

Order-32 Rule-15: Rules 1-14 (except rule 2A) to apply to persons of unsound mind3:

Rules 1-14(except 2A) shall, so far may be, apply to persons adjudged before or during the
pendency of the suit, to be of unsound mind and shall also apply to those persons who,
though not so adjudged are found by the court on enquiry to be incapable by reason of any
mental infirmity of protecting their interest when suing or being sued.

Tirtha Pradhan v. Balabhadra Pradhan4

Appointment of guardian of an old person on ground of his mental infirmity- solely on the
ground of medical certificate issued by Sub-Divisional Medical Officer and without
examining the officer on oath and without making any other enquiry. It was held improper
and illegal.

1
Raveendran vs. Sobhana and Ors, AIR2008Ker145

2
Ram Chandra Arya v. Man Singh and Ors, AIR1968SC954
3
The Code of Civil Procedure, 1908 Order-32 Rule15
4
AIR 1993 Ori 50
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Shiv Baran Singh v. Board of Revenue, UP at Allahabad5

Mere absence of formal order appointing guardian does not vitiate the decree. Moreover if
the minor/ Lunatic was represented in the suit by natural guardian and no prejudice was
caused to the opposite party.

CASE LAW-1

BINOY BHUSHAN CHOUDHURY AND ORS v. REKHA RANI DEB AND ORS

Citation: AIR2014Gau50

Significance of the case:

This case mainly explains about the concept of the suit which was filed by the unsound mind
person. This suit is maintained by the unsound person and this present appeal was filed
against the order regarding the title, possession of suit land, cancellation of registered Power
of Attorney and here in this case the registered sale deed was dismissed.

Facts:

One Nabendu Bikash Deb claiming to be next friend of the plaintiff, Bidhan Bhusan
Choudhury and describing said Bidhan Bhushan Choudhury as an insane filed Title Suit on
his behalf praying for a decree for declaration of right, title and interest and permission of
possession over a plot of land measuring 15 kathas 1 chatak 17 gondas under Dag Nos. 370
of second R.S. Patta No. 120 as well as Dag No. 369 of second R.S. Patta No. 199 of Mouja
Ambicapur Part IX of Silchar Town and also for cancellation of a registered sale deed No.
3518 dated 18.09.1987 and a registered Power of Attorney No. 277 dated 26.07.1987. The
case of the plaintiff was that plaintiff originally owned and possessed about 2 bighas 9 kathas
9 chataks and 8 gondas of land in the aforesaid 2 dags by way of purchase out of which he
sold land to one Chhaya Chatterjee and one Sanjoy Chatterjee on various days.

Thereafter he retained only the suit land measuring 15 kathas 1 chatak 17 gondas of land.
According to the plaintiff, the defendant No. 2 is a resident of the opposite plot of the suit
land and because of living in the neighbourhood became a friend of the plaintiff. Plaintiff
became insane since 1985 and taking this opportunity defendant No. 2 initially got a
registered Power of Attorney executed by him on 26.07.1987 and subsequently on the basis

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AIR 1993 All 247
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of the said Power of Attorney got the suit land sold in favour of his wife, the defendant No. 1
herein.

According to the plaintiff, permission of Silchar Development Authority was fraudulently

obtained for such sale and there was no permission from the Collector. The plaintiff did not
receive any money against aforesaid sale in favour of the defendant No. 1 and never parted
with the possession of the land. The plaintiff claimed to be alone in possession of the suit
land. Subsequently, the relations and a next friend of the plaintiff came to know about the
execution of the Power of Attorney and the consequent sale deed referred to above and
thereafter obtained certified copy of the same on 09.08.1988. Upon discovery of these
documents it was found that defendant No. 2 played fraud on the plaintiff for obtaining these
documents.

Issues:

1. Whether the learned lower Appellate Court was justified in dismissing the suit of the
plaintiff (a person of unsound mind) filed by the next fried on the ground of omission
to hold an enquiry in compliance of the provisions of Order XXXII Rule 15 of the
Code of Civil Procedure inasmuch as non-holding of any enquiry at the initial stage is
only an irregularity merely touching the procedure and does not render the suit
defective.
2. Whether, the execution of the power of attorney not having been seen by anybody and
as such not proved in accordance with law, the learned lower Appellate Court was
justified in drawing presumptions under Section 85 of the Evidence Act and holding
the same to be a valid document.

Plea of Respondents:

On being summoned the aforesaid two defendants submitted written statement and
specifically denied the plea of the plaintiff that plaintiff was insane after 1985, that its power
of attorney was duly executed and registered by the plaintiff himself, that the plaintiff opened
Savings Bank Account with the United Commercial Bank on 22.02.1986 by SB Account No.
3379 and went on operating the said account from time to time. The defendants further
disclosed that having obtained possession of the land pursuant to purchase on 18.09.1987 the
land was subsequently sold to one Kusum Rani Das on 09.08.1988 who has been possessing
the land pursuant to purchase. In its written statement the defendants took the plea that the
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suit is not maintainable in present form and that it is also bad for non-joinder of Kusum Rani
Das. After filing of this written statement, plaintiff brought the plaint amended and made
aforesaid Kusum Rani Das impleaded as defendant No. 3 in the case vide order dated
12.05.1989. Thereafter summon was issued to the newly impleaded defendant No. 3 (Kusum
Rani Das) who also submitted written statement and denied the case of the plaintiff. She
claimed to have purchased the land on 09.08.1988 and took possession thereof. She further
stated that she has constructed the house in the suit land and possessed the same.

Arguments:

Plaintiffs have examined as many as 4 witnesses including two doctors, as P/W 2 & 3 and the
defendants examined as many as 3 witnesses including the Sub-Registrar before whom the
questioned Power of Attorney was registered. Plaintiff had title to the land but since he was
of unsound mind on the day the alleged deed of Power of Attorney and registered sale deed
referred to above were executed, said deeds were invalid and inoperative. Amalendu
Bhattacharjee was examined as DW1 at the appellate stage who stated that the executants of
the Power of Attorney (Ext.-C) had executed the documents in his presence and Ext.-C(10)
and C(11) are his signature and thumb impression respectively.

According to him, he examined the plaintiff on 28.09.1993 and also referred him to
NIMHANS at Bangalore. Ext.-7 is the prescription given by him. In course of his cross-
examination he admitted that he did not recall to have seen the plaintiff prior to 28.09.1993
and that he could not locate the exact pathology of the disease suffered by the plaintiff as on
28.09.1993 and that is why he advised the patient for further investigation. Thus from the
evidences of PW2 & 3, it is not possible to arrive at a positive findings that as on the date of
execution of the Power of Attorney the plaintiff was of unsound mind.

Interpretation of Court:

The first substantial question of law deals with maintainability of a suit in view of failure on
the part of the learned trial Court to hold inquiry under Order XXXII Rule 15 of the Code of
Civil Procedure. This is because in case when a suit is instituted by a next friend he may be
required to furnish security on being asked by the Court under Rule 2A. By Rule 15 of Order
XXXII of the provisions from Rules 1 to 14 (except Rule 2A) have been made applicable for
a parity of unsound mind. Coming to the second and third substantial questions of law it is to
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be held that once the suit of the plaintiff is found to be non-maintainable the substantial
questions No. 2 & 3 of law have become redundant and irrelevant.

The first part deals with persons who have already been adjudged as persons of unsound
mind and the second part deals with the persons who are not so adjudged but if enquiry is
held by the Court to which the plaint is presented the party may be found to be of unsound
mind. It may be noted in this connection that under Section 50 of the Mental Health Act,
1987 the District Judge after holding enquiry may hold a person to be of unsound mind.

Final Judgement:

In the case in hand, Nabendu Bikash Deb is a self-styled next friend of the plaintiff who did
not even urge the Court to make a necessary adjudication as to the mental capability of the
plaintiff before proceeding to entitlement of the suit and the Court also proceeded at the mere
ipse dixit of Nabendu Bikash Deb who has no jural connection with the property. In that view
of the matter the learned lower appellate Court has not committed any error in holding that
the suit itself was defective and not maintainable for non-compliance of the provision of
Order XXXII Rule 15 CPC.

In the case of Raj Kumar v. Rameshchand & Others6 reported in the question as to
whether a suit without holding such an inquiry is competent, came-up for consideration.
Emphasizing on inquiry under Section 50 of the Mental Health Act, 1987, the Hon'ble
Supreme Court found that in the case in hand there was an application for holding such
inquisition in regard to mental condition of the plaintiff and pursuant to such application
guardian was appointed. On the basis of the aforesaid judgments Mr. N. Dhar would insist
this Court to hold a view that in a suit instituted on behalf of a person of unsound mind, an
inquiry under Order XXXII Rule 15 read with Rule 3 of the Code of Civil Procedure is a
condition precedent and in the absence of such an inquiry Court does not have jurisdiction to
entertain a suit.

CASE LAW-2

Nathu Singh and Ors v. Rajvati and Ors

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(1999) 8 SCC 29
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Citation: 2016(8)ADJ567

Significance of the case:

This particular case explains the concept of the suit filed by the unsound mind person and the
procedure was mentioned under Order-32. The procedure which was mentioned from rule 1-
14 is same for the unsound mind person as it was mentioned under Rule-15 of Order -32.

Facts:

Sri Dharam Veer Singh filed Civil Suit No. 236 of 1985 in the Court of Civil Judge
Moradabad on 12.4.1985 for obtaining a decree for cancellation of sale-deed dated 17.9.1984
which is alleged to have been presented for registration in the office of Sub-Registrar on
19.10.1984 and was registered on 21.12.1984.

In the suit was filed by Sri Dharm Veer Singh, through his next friend Lakhpat Singh,
claiming himself (Dharam Veer Singh) to be a person of unsound mind, the allegations of
plaint in brief are that, the plaintiff has 1/3rd share in the property plot Khasra Nos. 403, 422,
423 and 444 detailed at the foot of the plaint; that at the time of execution of impugned sale-
deed, the plaintiff was not a person of sound mind, was not capable of understanding the
contents of sale-deed and was not even able to understand as to why and on which papers he
is putting his thumb impressions; that the impugned sale-deed was obtained in hurried and
unnatural manner and was not read over or explained to the plaintiff; that the plaintiff did not
receive any sale consideration and execution of sale-deed for a sum of Rs. 50,000/- is without
consideration; that the land in question was worth Rs. 1,50,000/- at the time of execution of
alleged sale-deed; that no permission to sell was obtained from the District Judge; that the
plaintiff had no need to sell the property, over which the plaintiff and his family was totally
dependent; that the impugned sale-deed has been obtained by playing fraud on the plaintiff
without obtaining the consent of his wife and relatives.

Issues:

 Whether the plaintiff Dharam Veer Singh had been able to prove by admissible
evidence that on 19.10.1984 when the sale deed was executed and on 21.12.1984
when it was registered, he was of unsound mind and the unsoundness of mind was of
such level which rendered the deed executed by him to be void or voidable?
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 Whether Lakhpat Singh could act as next friend/guardian of Dharam Veer Singh and
could file suit as such?"

Plea of Respondents:

The defendants contested the suit denying the allegations made in the plaint. The defendant
No. 3 Gajendra Singh who is neither vender, nor vendee nor marginal witness to the sale deed
in dispute and neither he has any concern nor any relief has been prayed against him and has
been unnecessary impleaded by plaintiff, being son-in-law of his brother, and so has been
arrayed as defendant-respondent No. 5 in the present second appeal.

This suit for cancellation of sale deed instituted on 12.4.1985, through next friend, there is no
specific plea or allegation in the plaint as to from which date, time or period plaintiff Dharam
Veer Singh is suffering from alleged unsoundness of mind and such unsoundness of mind if
any continued up to which date, time or period and there is no iota of evidence to above
effect. It has also not been specifically pleaded as to when and why he went with defendant
No. 3, his brother's son-in-law, not vendee and as to when he returned from the alleged place.
In any case there is no evidence on record to show that he ever went to the place of defendant
No. 3.

Arguments:

The argument of defendant-appellant that since the real brother, nephews and wife of plaintiff
Dharam Veer Singh were alive and could have aced as his next friend, so in their presence
Lakhpat Singh/cousin (the son of Dharam Veer Singh's Bua) was not competent enough to
file suit as his next friend for and on behalf of Dharam Veer Singh, has no force. It is not
disputed that Lakhpat Singh is major and a person of sound mind. There is nothing on record
to show that Lakhpat Singh had any interests adverse to the interests of plaintiff Dharam Veer
Singh, or was defendant in this suit and so despite of the availability of some other close
relatives or wife of plaintiff Dharam Veer Singh, who could also have been competent to act
as his next friend, his distant cousin brother Lakhpat was equally competent to act as his next
friend, subject to the only condition that if Dharm Veer was a person of unsound mind at the
time of institution of suit and not otherwise..

The plaintiff Dharam Veer Singh, through his alleged next friend Lakhpat Singh has
produced himself as P.W. 1, Rajwati the wife of plaintiff as P.W. 2, Gopal Singh as P.W. 3,
and Hira Singh as P.W. 4., Paper No. 64/A is prescription of Dharam Veer Singh dated
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8.12.1986, prescribing certain Ayurvedic medicines for anxiety at Government Ayurvedic

Hospital, Rajunagla, Bareilly and paper No. 65/A is another prescription dated 3.11.1991 of
Government Ayurvedic Hospital mentioning Dharam Veer Singh to be a suspected case of
anxiety neuro and referring him to mental hospital Bareilly for expert treatment and
diagnosis.

Interpretation of the Court:

The suit for cancellation of sale-deed has been filed by Lakhpat Singh as next friend of
Dharm Veer Singh claiming him to be a person of unsound mind. It is disputed as to whether
at the time of institution of suit the plaintiff Dharam Veer Singh was a person of unsound
mind or not and undoubtedly, if Dharam Veer Singh was not a person of unsound mind,
neither Lakhpat Singh nor anybody else could have acted as his next friend or guardian nor
could have instituted suit for and on his behalf.

However, as far as the competency of Lakhpat Singh, to work as next friend/guardian of

Dharam Veer Singh and to file suit for and on his behalf, in case of his being a person of
unsound mind is concerned, there may hardly be any dispute as to his competency on account
of his being cousin brother, despite the fact that his wife was alive and was equally competent
to act as his next friend.

Final Judgement:

The judgment and decree passed by first appellant Court are, therefore, liable to be set aside
and that which were passed by Trial Court in Civil Suit No. 236 of 1985 on 4.2.1991, are
liable to be affirmed and restored and appeal is, liable to be allowed.

Accordingly, the appeal is allowed with costs throughout. The impugned judgment and
decree dated 26.2.1998 passed by the Additional District Judge/Special Judge Moradabad, are
set aside and the judgment and decree passed by 8th Additional Civil Judge, Moradabad in
Civil Suit No. 236 of 1985 on 4.2.1991 are affirmed and restored. The suit of plaintiff-
respondent stands dismissed with costs throughout.

CONCLUSION:
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Order-XXXII is one of the examples of exemplary frame work and it is part of the larger
code and it one of the main processes in litigation which is operating from the initial period
i.e., 1908 and the rules under the order have also been amended from time to time to ensure
that the relevance must be maintained.

Situations such as frauds, collusion and adverse interest has been considered and the judicial
opinion regarding the negligence of the guardian have changed over time to time and it is one
of the interesting field where there is more scope to expand the minor’s rights and also the
rights of the unsound mind person. Order XXXII is complete in its treatment of the legal
problem on how to ensure fair representation of minors and persons of unsound person.

BIBLIOGRAPHY:

1. CPC BARE ACT- Civil Procedure Code, 1908

ONLINE SOURCES:

1. https://www.manupatrafast.com/pers/Personalized.aspx
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