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Judgment
Venkataramana Rao, J.—These two appeals arise out of a suit to enforce a mortgage dated 16th January, 1919 executed in favour of
Chappalamadugu Govindayya by one, Yagnayya and his undivided son Ramamurti, and Hanumantha Rao for himself and as guardian of his sons
Venkatanarasimham and Satyanarayana who are defendants 2 and 3 in this suit. All the members of the family of Hanumantha Rao are also
impleaded as defendants herein besides Ramamurti, the son of Yagnayya. The said Ramamurti, Venkatanarasimham and Satyanarayana are
impleaded as trustees of Seetaramaswami and Anjaneya temples on the ground that the father of the 1st defendant Yagnayya, and Hanumantha
Rao the father of Venkatanarasimham and Satyanarayana were trustees of the said temples. The reason for the inclusion of these defendants in the
capacity of trustees apart from their individual capacity is that items 19 and 20 of the plaint schedule property which are also comprised in the said
deed of mortgage are properties dedicated to the said temples and vested in the trustees in trust for the temples. The validity and the binding nature
of this mortgage on the minor defendants was the subject-matter of an issue in the partition suit (O.S. No. 63 of 1932) on the file of the Sub-
Court, Bapatla, out of which Appeal No. 293 of 1937 arises. The evidence relating thereto has been elaborately discussed by the learned
Subordinate Judge who came to the conclusion that the said mortgage was binding on all the members of the family including the minor plaintiffs in
O.S. No. 63 of 1932. In that suit the properties mortgaged were described as items 1 to 26 of the B schedule to the plaint. In those properties the
family of Hanumantha Rao was entitled to two-thirds and the other one-third belonged to Yagnayya. The case for Hanumantha Rao in the partition
suit was that the said properties were his self-acquisitions whereas the case of the other members of the family was that they were purchased for
the benefit of the family. Those properties originally belonged to one Venkatappayya who died leaving him surviving his widow Seetammaand his
mother. On the death of his widow and mother, the succession opened and the reversioners who were entitled to the said properties were
Yagnayya the father of Ramamurti and one Venkataramayya and another Sriramamurti each entitled to one third share. It appears that
Venkataramayya became entitled to two-thirds subsequently. On 26th June, 1915, Hanumantha Rao purchased the two-third share of
Venkataramayya under Ex. H. In regard to these properties the reversionary rights of Yagnayya and Venkataramayya were questioned by certain
persons who filed O.S. No. 72 of 1910 on the file of the Sub-Court, Bapatla, which ended ultimately in favour of the said Yagnayya and
Venkataramayya. Another suit was filed for recovery of these properties (O.S. No. 6 of 1919) and expenses had to be incurred in connection
therewith. The suit mortgage was executed partly for the purpose of meeting those expenses, the debts incurred in connection therewith and also
for discharging a debt incurred for averting a Court sale of items 19 and 20 in execution of the decree in O.S. No. 585 of 1910 obtained on a
deed of mortgage executed by the original owner of the property. In both the suits (O.S. 63 of 1932 and in the present suit) the validity of the
mortgage was dealt with on the footing that the said two-thirds acquired under Ex. H was joint family property and the case set up by Hanumantha
Rao was negatived. The question whether the mortgage deed was true and supported by consideration and binding on the members of the family
was also raised in this suit. The learned Judge adopted the finding arrived at in O.S. No. 63 of 1932 in this suit also. He however, came to the
conclusion that the mortgage was not enforceable against items 19 and 20 on the ground that they were trust property and that there was no
satisfactory evidence to show that they were comprised in the mortgage decree in pursuance of which the properties were alleged to have been
brought to sale. Appeal No. 195 of 1937 was filed by the first plaintiff in so far as the decree was against him in relation to items 19 and 20.
Appeal No. 293 of 1937 was filed by the plaintiffs in O.S. No. 63 of 1932 who are also defendants 3, 5 and 6 in the suit out of which this appeal
arises.
Mr. Rajah Aiyar has raised two contentions in these appeals (1) that the suit itself is incompetent and ought to have been dismissed, and (2) that
the mortgage was not supported by consideration in respect of two items which formed part of the consideration, namely, (1) a sum of Rs. 4713-
14-4 being the amount borrowed for the purpose of discharging a promissory note dated 14th January, 1919, in favour of the plaintiff and (2) a
sum of Rs. 1140-6-11 being cash alleged to have been paid on the date of the mortgage.
Mr. M.S. Ramachandra Rao, who appears for the plaintiff, raised a preliminary objection that the appeal itself is incompetent. We shall briefly
dispose of the preliminary objection. The contention of Mr. Ramachandra Rao is that the finding as regards consideration was incorporated in the
decree in O.S. No. 63 of 1932 and no appeal was preferred in regard thereto and the adjudication therein has become final and will operate as res
judicata. But we think this contention is unsustainable in view of the Full Bench decision in Panchanada Velan v. Vaidianatha Sastrial (1905) 16
M.L.J. 63 : ILR 29 Mad. 333 and Ramaswami Chetti v. Karuppan Chetty (1915) 29 M.L.J. 551
We shall now deal with Mr. Rajah Aiyar''s contention as to the competency of the suit. The plaint was filed on behalf of Govindayya as first
plaintiff represented by his brother''s son Rangayya and also by Rangayya as second plaintiff. Govindayya is described in the cause title thus:
Chapalamadugu Govindayya being lunatic by next friend Chapalamadugu Rangayya."" The plaint was filed on 15th January, 1931. Three years
afterwards on the 20th March, 1934, the first plaintiff, filed an application stating that he was of sound mind that the second plaintiff had no right to
the suit amount and that he should be removed from the suit and also as his next friend and he should be permitted to conduct the suit himself. The
second plaintiff had no objection and the order was made in terms of the petition. Later on, after all the witnesses were examined the second
plaintiff filed an application stating, that he might be appointed as the next friend of the first plaintiff; but that application was dismissed on the
ground that Govindayya was not so mentally infirm as to be incapable of protecting his interests. One of the issues in the suit was whether the first
plaintiff was a lunatic and the second plaintiff had a right to represent the first plaintiff. On that issue the learned Judge recorded his finding thus:
I find on issue 9 that the first plaintiff was of unsound mind and incapable of protecting his interests when the suit was filed and the second plaintiff
was consequently entitled to file the suit as his next friend.
Mr. Rajah Aiyar challenges this finding and says that the suit must be held to be incompetent on the ground that when it was filed the first plaintiff
must be deemed to have been of sound mind and the plaint must be held to have been validly presented only on the date when it was amended by
striking out the name of the next friend and this suit having been filed more than twelve years of the execution of the bond is barred by limitation.
He further contends that even assuming the first plaintiff was of unsound mind the plaint was not filed in accordance with Order 32, Rule 15 as no
enquiry was held and no order passed permitting the second plaintiff to sue as the next friend of the first plaintiff. He relied in support thereof on a
decision of the Calcutta High Court in Nirendra Lal Bhattacharya v. Bepin Chandra Bhattacharya 38 C.W.N. 1081 and a decision of our learned
brother Mockett, J., in Rajammal v. Mahadeva Aiyar 1937 M.W.N. 398. Before dealing with this contention the question we have to find is
whether the first plaintiff was really of unsound mind on 16th January, 1931, the date when the plaint was filed. The learned Judge on a
consideration of the evidence came to the conclusion that he was. It is in evidence that he was really of unsound mind from 1923 to 1933 for a
period of ten years and was also kept in the Mental Hospital, Waltair, that up to 1933, in litigations had with reference to his estate, the second
plaintiff was acting as his next friend and guardian. There was also oral evidence to the effect that the first plaintiff was really of unsound mind in the
beginning of 1931 when the present suit was filed. Nothing has been shown to us that the finding of the learned Judge that the plaintiff was really of
unsound mind on the date of the plaint is wrong. We therefore, affirm the said finding.
In view of this finding the question is whether there has been a valid presentation of the plaint on 16th January, 1931. Order 32, Rule 15 runs
thus:
The provisions contained in Rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons
who though not so adjudged are found by the Court on enquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of
protecting their interests when suing or being sued.
According to the above rule the provisions relating to minors should be applied as far as they are applicable. In the case of a person who is not
adjudged to be of unsound mind but who by reason of unsoundness of mind or mental infirmity is incapable of protecting his rights the plaint should
be filed on his behalf by a next friend. That has been done in this case. But what is urged is that before a next friend can represent such a person it
must be found on enquiry by the Court that the person by reason of unsoundness of mind or mental infirmity is incapable of protecting his interests.
That is, there must be a preliminary enquiry and a finding of the Court before the plaint was filed. That is the view taken by our learned brother
Mockett, J. It seems to us that such a procedure is not contemplated by the provisions of the Code. Apparently our learned brother was having in
view the procedure similar to that adopted in pauper suits or the English practice. There is no provision in the CPC under which such an enquiry
can be had. What is contemplated is that the plaint must be filed by a next friend and the Court, before admitting the plaint, should satisfy itself on
enquiry that the person on whose behalf the plaint is presented was by reason of unsoundness of mind incapable of protecting his interests and
should be represented by a next friend. Ordinarily the next friend ought to file an application supported by an affidavit along with the plaint and the
judge should pass an order thereon. That the section does contemplate an enquiry there can be no doubt, but the nature of the enquiry is not
indicated. It seems to us that if the affidavit in support of the request to permit a person to sue as a next friend discloses all the facts which would
satisfy the Court that the person on whose behalf the plaint is presented is by reason of unsound mind or mental infirmity incapable of protecting his
interests, without any further enquiry the Court can permit the next friend to sue on his behalf, or if the allegations in the affidavit are not convincing,
it is open to the Court to direct the next friend to produce witnesses before it in order that it may satisfy itself as to the mental capacity of the
person on whose behalf the plaint is presented All that is needed is that there should be some prima facie proof such as to satisfy the Court that the
person was by reason of unsoundness of mind or mental infirmity incapable of protecting his interests, because an order permitting the next friend
to represent such a person is not final. It is always open to the defendant to take out an independent application to have the said order revoked
when the Court can go fully into the matter. But when once the Court permits the next friend to sue on behalf of such a person, it is not open to the
Court to raise an independent issue in the trial as to the competency of the next friend to represent him in the suit (vide Richmond v. Branson &
Son (1914) 1.Ch. 968 followed in City Civil Court Appeal No. 36 of 1936). in this case as soon as the plaint was presented the Court finding that
it was presented on behalf of a person of unsound mind, called for an affidavit and the said affidavit was filed and it was after that, the plaint was
permitted to be filed by the next friend. We must, therefore, take it that the learned Judge who admitted the plaint, on a perusal of the affidavit,
satisfied himself that the 1st plaintiff was a person of unsound mind incapable of protecting his own interest. In view of the fact that the first plaintiff
was up to the date of the plaint treated as a person of unsound mind and having regard to his previous history, the Court was probably justified on
the allegations in the affidavit in coming to the conclusion which it did namely, permitting the second plaintiff to sue as the next friend. We think it
desirable that the Court should insist upon an independent application and an affidavit fully disclosing the facts relating to the unsoundness of mind
of the person on whose behalf the plaint is presented and the Court before admitting the plaint should, if the allegations in the affidavit are not
convincing, insist upon the production of witnesses in order to enable the Court to satisfy itself that the person was of unsound mind and incapable
of protecting his own interests and record a finding to that effect. In this case the first plaintiff having been permitted to sue by a next friend it was
not open to the Court to raise issue No. 9. We therefore, find that the suit by the next friend was competent.
We shall now deal with the contention of Mr. Rajah Aiyar relating to the two items of consideration referred to by him as valid and binding on
the minor plaintiffs. There is absolutely no evidence to show that the mortgage to discharge which the sum of Rs. 4,713-14-4 was borrowed was
binding on the properties which were purchased under Ex. H and Mr. Ramachandra Rao frankly concedes that the evidence is not such as to
warrant a finding in favour of his client. We must therefore declare the said items of consideration as not binding on the appellants (defendants 3, 5
and 6) who were also plaintiffs 1 to 3 in O.S. No. 63 of 1932. But what Mr. Ramachandra Rao contends is that items 19 and 20 in any event
must be declared liable which is the subject-matter of Appeal No. 293 of 1937. It seems to us that this contention is well founded. Items 19 and
20 were dedicated to the temples of Seetharamaswami and Anjaneyaswami by the original owner Venkataramayya subsequent to the date of the
execution of the mortgage on which the decree in O.S. No. 585 of 1910 was obtained. There is evidence in this case that items 19 and 20 were
the subject of the said mortgage. There is an admission by Yagnayya and Hanumantha Rao that the said items did form part of the said mortgage.
In the written statement filed in O.S. No. 93 of 1922, a suit relating to the trust, paragraph 10 of the written statement is to the following effect:
Late Venkatappayya mortgaged items 1 and 2 of the plaint A schedule under two mortgage deeds of the 10th March, 1883 and 11th January,
1889. The mortgagees obtained decrees in O.S. Nos. 585 and 589 of 1910 on the foot of these mortgages.
No doubt in that suit a compromise was arrived at by which Ramamurthi, Venkataramayya and Hanumantha Rao for himself and as guardian of
his sons Venkatanarasimham and Satyanarayana agreed to get released the said items 19 and 20 from the suit mortgage. Therefore the evidence
so far as is available in this suit goes to show that items 19 and 20 were in any event liable for the mortgage executed by the original owner
Venkatappayya and the said amount of Rs. 4,713-14-4 was borrowed to discharge the mortgage decree to avert the Court sale of the said items.
Prima facie therefore the said items 19 and 20 are liable to bear the burden of the said debt. We are therefore inclined to hold that so far as the
said sum of Rs. 4,713-14-4 is concerned, it must be declared to be binding on items 19 and 20 and not upon the rest of the properties and we
construe the deed of mortgage as having been executed by the members of the family of the appellant and Yagnayya in their individual right in
regard to the amount borrowed for the purpose of the reversionary litigation and by Yagnayya and Hanumantha Rao in their capacity as trustees so
far as Rs. 4,713-14-4 in concerned. The decree must therefore be modified by declaring that only items 19 and 20 can be brought to sale in
respect of the sum of Rs. 4,713-14-4 with interest thereon and for the rest of the consideration the other items are to be brought to sale.
In regard to the sum of Rs. 1,140-6-11 paid as cash, we must hold the said item of consideration as binding on the plaintiffs. The said sum was
admittedly borrowed for the purpose of the reversionary litigation as a result of which the properties mortgaged were obtained for the benefit of the
family. Time for redemption, six months.
The appellants in both the appeals will pay and receive proportionate costs.
The appellant in Appeal No. 293 of 1937 is hereby directed to pay the Court-fee payable on the memorandum of appeal to Government, and
he will get proportionate costs in the appeal which will be recovered by him from the respondents.