Nayomi vs Rooth @ Kochurani, Thankamma and Glenny Mathew

V. Chitambaresh, J.—The plaintiff as well as defendants 1 and 2 in the suit for partition are sisters wherein a preliminary decree was passed on 31.5.2010. The second defendant/petitioner thereafter assigned away her fractional right by two sale deeds dated 12.10.2010 and 13.10.2010 to the son of the first defendant. The son of the first defendant has subsequently been impleaded as the additional third respondent in the final decree application also. It appears that the first defendant and her son impleaded as the additional third respondent in the final decree application have fallen apart. The first defendant filed an objection to the application for impleading put in by the additional third respondent contending that the second defendant is incapable of executing sale deeds in his favour. The court below has however allowed the application for impleading notwithstanding the objection filed by the first defendant.

The court below however summoned the petitioner in person and put some questions presumably in the light of the objection raised by the first defendant to the application for impleading. The court below has by the order impugned referred the petitioner to a medical board for examination. Such a procedure is unknown to law especially when no application under Order XXXII of the CPC has been filed by any party.

The court below has thought it fit to implead the assignee under the sale deed (son of the first defendant) as additional third respondent in the final decree application. There was no necessity to further probe into the mental capacity of the petitioner in these proceedings for impleading. The order of the court below in I.A. No. 1293 of 2011 in O.S. No. 220 of 2009 on the file of the court of the Additional Subordinate Judge of Irinjalakuad directing the petitioner to appear before the Medical Board for examination is therefore set aside. This judgment will not however disable any one of the parties to the suit in moving an application under Order XXXII of the Code of the Civil Procedure to seek for appointment of a next friend to the petitioner if the circumstances so warrant. The court below shall make every endeavour to dispose of the suit expeditiously and at any rate within a period of three months from the date of receipt of a copy of this judgment.

The original petition is disposed of as above.