Nilanjan Dutta vs Arghyajit Biswas And Ors

Heard Mr. T.K. Deb, learned counsel appearing for the petitioner as well as Mr. S. Lodh, learned counsel appearing for the respondents.

By means of this petition, filed under Article 227 of the Constitution of India, the order dated 05.07.2015 [Annexure-5 to this application] delivered by the Civil Judge, Senior Division, Court No.2, West Tripura, Agartala in Case No.T.S.56 of 2015 has been challenged.

The petitioner had filed an application under Order XXXII Rule 3(2) read with Section 151 of the CPC for her appointment as guardian of the plaintiff, as the plaintiff has been suffering from serious mental incapacity and other ailments as per medical information. Even though, the said application has not been resisted on the factual aspects, but the defendant having participated in the hearing raised objection on the question of law, particularly in respect of maintainability of the said application on two grounds namely, (a) the applicant has not declared whether she had any adverse interest in respect of the property or (b) whether she is fit to handle the property or whether she would remain accountable to protect interest of the plaintiff. In this regard, three decisions being Jhabarmal Panda versus Bhagawati Prasad Kedia reported in AIR 1990 Gauhati 35, Tirtha Pradhan and Others versus Balabhadra Pradhan and Another reported in AIR 1993 Orissa 50 and Kasturi Bai and Others versus Anguri Choudhuri reported in AIR 2003 SC 1773 have been relied on. On hearing the parties, the Civil Judge has rejected the said application for appointing the petitioner herein as the guardian of the plaintiff for the suit being T.S.56 of 2015 having observed as under:

"I have gone through the judicial authorities relied on by the Ld. Counsel Mr. S. Lodh and on perusal I find that the proper procedure for obtaining appointment as guardian for a party to a suit on the ground of mental infirmity is to pray for conducting a judicial inquiry whereby the proposed guardian shall adduce evidence to establish mental infirmity of the concerned party and also his competence and fitness to be appointed as guardian.

In this case I find that the application filed by the proposed guardian is not in proper form and no proper prayer has also been made for judicial determination of mental infirmity of the plaintiff and appointment of his guardian." [Emphasis added]

Mr. T.K. Deb, learned counsel appearing for the applicant has submitted that Rule 15 of Order XXXII of the CPC does not saddle with any responsibility on the person who applies for appointment of guardian under Order XXXII Rule 3 read with Rule 15 of the CPC. A salutary duty has been cast upon the civil court to enquire into the incapability by reason of any mental infirmity and to protect the interest of the person so affected. In the instant case, the petitioner had annexed a few medical records with the application for appointment of guardian which are, as well, made available with this petition wherefrom this court finds that the investigation conducted by the AMRI Hospital, Mukundupur, West Bengal resulted in the following observation :

"This is to certify that Mr. Nilanjan Dutta (55 yrs/M) is currently under my treatment for diabetes/hypertension/hypothyroidism/old CVA with polyneuropathy and non specific ileal ulcer. He has gradually progressive memory impairment. Current cognitive assessment showed gross cognitive (memory) impairment with impaired learning, poor attention and poor recall. He also has blunted effect with loss of social inhibition. At present he will require constant assistant for his daily medications and other activities."

Mr. Deb, learned counsel has further submitted that while passing the impugned order, the Civil Judge has failed to take note of the law as enunciated by the apex court in Kasturi Bai(supra). In that case, the apex court emphasized on judicial enquiry on the mental status of the person for whom the guardianship is claimed. If on judicial enquiry, it is found that the person is incapacitated by loss of mental faculty, the guardianship should ordinarily be granted following the prescription of law.

Mr. Deb, learned counsel appearing for the petitioner has submitted that the application was filed supported by affidavit as per rules but the Civil Judge has unfortunately observed that no affidavit was filed by the petitioner.

Mr. S. Lodh, learned counsel appearing for the respondents have submitted that there is no infirmity in the impugned order. The Civil Judge has rightly stated that the petitioner herein who applied for guardianship did not file the application stating that she does not have adverse relation with the property to be handled with and such statement being absent cannot be supported by an affidavit verifying the fact that the proposed guardian has not interest in the suit property and that she is fit to be appointed so. It is imperative by Rule 3(3) of Order XXXII. That apart, the Civil Judge was not satisfied that any primafacie case has been projected by the petitioner based on the medical records, as produced in the court.

Having appreciated the submissions made by the learned counsel for the parties, this court has scrutinize the medical records. True it is that the Civil Judge did not commit any wrong as on the basis of the medical records as produced by the petitioner, it cannot be held that the petitioner has been incapacitated to such an extent that the plaintiff cannot take care of his litigation.

Be that as it may, this court finds that the matter requires the judicial enquiry, as contemplated under Rule 15 of Order XXXII of the CPC which provides that the court will come to a conclusion on enquiry whether the person for whom the guardianship has been sought is incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued. True it is that the civil court did not ask for any enquiry as no such enquiry did commence. For that purpose, a parallel reference can be drawn by showing the provisions of Order XXVI of the CPC. This is a piece of progressive legislation for protecting the interest of the person whose mental health is under shadow.

Having regard to all these aspects, particularly the analogy as projected in the impugned order, this court is of the view that there is no infirmity in rejecting the said application filed by the petitioner herein as there was no declaration in terms of rule 3(3) of Order XXXII of the CPC taking the entire responsibility and showing that the petitioner is a person who can be declared fit to be guardian of the plaintiff. As such, this court will not interfere with the order but the court is persuaded to clarify that if the provisions of Rule 15 of Order XXXII is read with the perspective facts, the court may not as a matter of rule, ask the person who is stepping in for appointment as the guardian to file an application seeking enquiry over the fact of incapability by reason of any mental infirmity. The court can direct an enquiry on its own motion to determine the mental state of the person against whom the guardianship is sought. It cannot be held that unless a formal application is filed by the person who is seeking guardianship, the court would not act. It is a progressive legislation. In interpreting the provisions of such statute, a liberal approach should be adopted by the court. When an application is filed under Order XXXII, Rule 3 read with Rule 15 of the CPC, if the court is not satisfied, on the basis of the medical records as produced before it, that the person against whom the guardianship is incapable by reason of any mental infirmity, an enquiry may be conducted. Such enquiry would be devised by the said court. To avoid all sort of subjectivity, it would be appropriate for the court to take the advice of the expert or sending the person for whom the guardianship is sought to the expert for assessing his mental state and whether he is incapable by reason of any mental infirmity. The ground that for non-filing of a separate application seeking such enquiry, the prayer for appointment of guardian is liable to be rejected, cannot be tenable within the scheme of Rule 15 of Order XXXII of the CPC. Hence, that observation stands set aside.

In the circumstances, the petitioner is given liberty to file a special application seeking the enquiry on incapability of the plaintiff by reason of any mental infirmity. But in the event, the petitioner did not file such application for enquiry, the court will be within its jurisdiction to set an enquiry for determining the status of capability of the plaintiff by reason of mental infirmity for purpose of Rule 15 of Order XXXII of the CPC. If such application is filed, the Civil Judge without being influenced by the order as challenged in this petition shall determine whether a case of appointing guardian for mental infirmity has been made out by the petitioner or not. If it is found that the petitioner has made out a case of mental infirmity in the enquiry as contemplated in Rule 15 of Order XXXII of the CPC, the petitioner shall be allowed to represent the plaintiff as the guardian. But declaration as to absence of adverse interest and accountability of protecting property be made, conforming to the statutory provision. Such declaration may be in the application for guardianship or separately, to be submitted along the said application for guardianship Subject to those observations as above, this petition stands disposed of.