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Judgment
A. Raman, J.—This second appeal is directed against the judgment and decree of Sub Court, Sivaganga made in A.S.No.19 of 1982 on 3-
8-1983.
The facts of this case are as follows:-
The plaintiff filed a suit for redemption, alleging as follows:- The property called ""Subramania Voikkal"" is situate in the village of Vanthavasi, hamlet
of Enapuram, Sivaganga Taluk. The property originally belonged to the plaintiff''s brother Alagarsamy Servai. On 3-5-1965, he mortgaged the
property in favour of Meenakshi, mother of defendants 1 to 6 for a sum of Rs. 500. The mortgagee died in 1976. The suit property is now
enjoyed by defendants 1 to 7. Alagarsamy Servai died on 30.12.1965, leaving his mother Arumugathammal and his sister, the plaintiff.
Arumugathammal succeeded to the properties of Alagarsamy Servai and enjoyed them till her death in 1966. After her death the plaintiff is
enjoying the property. She is entitled to redeem the suit property. The period of redemption fixed has already expired. Notice was issued on
4.7.1977, demanding, redemption of the mortgage. In view of Section 9 of the Tamil Nadu Act 40 of 1979 and Act 13 of 1980, the mortgage
stands discharged. Hence the suit.
Defendants 1 and 4 to 6 filed their written statement, adopted by the other defendants. They contended thus:- The plaintiff is put to strict proof
that she is the legal heir of Alagarsamy Servai. Alagarsamy Servai had a son by name Ramiah Servai, who is residing in Burma. Alagarsamy has
other close pangalies. During the life time of Alagarsamy Servai, the plaintiff''s son Somalingam demanded him to transfer some of the properties in
his name. Alagarsamy was not willing and he was murdered by Somalingam. The plaintiff is of unsound mind for a long time. The plaintiff is not
entitled to any relief. The plaintiff is not the heir of Alagarsamy. She has no cause of action.
A reply statement was filed by the plaintiff, contending that Alagarsamy had no son and that he did not leave pangalies. The plaintiff''s son never
demanded any property from Alagarsamy. Alagarsamy attempted to assault the plaintiff''s son in an intoxicated condition. In self-defence he was
pushed down by the plaintiff''s son and as a result, the said Alagarsamy was hit by a water pipe and expired. The plaintiff''s son did not murder
Alagarsamy. The plaintiff is of sound mind. After the death of Alagarsamy and after the death of her mother, the plaintiff succeeded to the estate.
Before the District Munsif of Sivaganga, on behalf of the plaintiff, the plaintiff examined herself as P.W.1 and four other witnesses. Exs.A.1 to
A.10 were marked on the plaintiff''s side. The defendants examined two witnesses and no documents were marked on their side.
The learned District Munsif dismissed the suit. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred an appeal to the
Sub Court, Sivaganga. The Subordinate Judge, Sivaganga allowed the appeal and decreed the suit as prayed for. Hence this second appeal by the
defendants.
The only objection raised by learned Counsel for the appellants is as to the maintainability of the suit on the ground that the plaintiff being a
person of unsound mind, is not entitled to redemption. Therefore, the only point for determination in this appeal is:
Whether the suit filed by the plaintiff, a person of unsound mind, through guardian/next friend for redemption, is not maintainable?
The point: Though in the suit, other contentions were raised, they are not pressed and the only point that now survives for consideration is about
the maintainability of the suit by a person, who is of unsound mind.
The finding of the Courts below that the plaintiff Kaliammal is a person of unsound mind, is not disputed. Originally the suit was filed by her
without she being represented by any guardian. It was in the course of defence, a stand was taken by the defendants that the plaintiff was of
unsound mind. An issue was framed by the trial Court under issue No.3. The trial Court has held that when the Court examined P.W.1, the plaintiff
previously, she was found to be sane, but after remand it was conceded by P.W.4 that P.W.1, the plaintiff is not of sound mind for the past six
months. Therefore, the plaint was amended and the plaintiff''s son was impleaded as next friend of the plaintiff. Therefore, the mental condition of
the plaintiff that she is of sound mind, is in a way established and the findings of the Courts below in that regard, are not challenged at all.
Before the amendment of the Transfer of Property Act, as it stood then, in Section 91, persons who may sue for redemption were set out.
Originally the Section contained Clauses (a) to (g). Clause (e) refers lunatics. Therefore, before the amendment of the said Section, a lunatic was
competent to sue for redemption of mortgage only though a curator or committee. But Clauses (d) and (e) have since been deleted. According to
Section 91, as it stands now, besides the mortgagor, any person who has any interest in, or charge upon, the property mortgaged, any surety for
the payment of the mortgage-debt or any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for the
sale of the mortgaged property, are competent to sue for redemption. The term ""mortgagor"" would include his heirs and legal representatives as
well. Therefore, when a mortgagor can sue for redemption, it follows an heir or legal representative of the mortgagor can as well institute a suit for
redemption of the mortgaged property. That the plaintiff Kaliammal is a heir of deceased Alagarsamy, is not challenged. The Concurrent findings of
the Courts below in that regard is neither attacked, nor sought to be attacked. Therefore, it follows that Kaliammal is a heir or legal representative
of the deceased Alagarsamy Servai. When that position is clear, it follows that she is entitled to sue for redemption.
The trial Court has taken the view that in view of the deletion of clause(e) the right to sue for redemptions by lunatic is taken away. It is not so.
The next friend of lunatic or guardian can sue to redeem the property on behalf of the lunatic. The view of the trial Court is clouded her, the fact
that P.W.1''s son was convicted for murder of Alagarsamy Servai and thus he is disqualified to represent the plaintiff. But, this view of the trial
Court was not accepted by the Appellate Court. The finding that merely because the legal representative and next friend and guardian of the lunatic
was convicted for the murder of Alagarsamy, the next friend is not competent to file the suit for redemption, in my opinion, is not well-founded one.
The plaintiff''s son is, if at all, prevented by virtue of the provisions of the Hindu Succession Act from claiming to be an heir to the property of
Alagarsamy Servai. But the right of the plaintiff herein to inherit the properties of Alagarsamy Servai is independent. She became the heir in her
own right and as such she became entitled to inherit the properties of Alagarsamy Servai. She is not claiming through her son, she filed the suit for
redemption in her own name. The suit was originally decreed. After the suit was decreed an appeal was preferred by the defendants. On appeal,
the matter was remanded back to the trial Court. After remand, certain witnesses were examined and in the course of such examination it came to
light that the plaintiff has not been of sound mind for some time immediately prior to the date of remand i.e. because unsound of mind after during
the pendency of appeal. Therefore, the plaint was amended to show that the plaintiff is represented by her next friend and guardian, her son. He
was accordingly permitted to prosecute the suit. Therefore, this is not a suit laid by the sort of Kaliammal, claiming redemption. Kaliammal had
independently, on her own right, became entitled to the property as a heir. She laid the suit for redemption. Only at a subsequent stage, after the
disposal of the suit by the trial Court, Kaliammal became mentally unsound, with the result that after remand, the plaint was amended and her son
was brought on record as the next friend and guardian of his mother with a view to prosecutor the suit further. If any right is claimed by the son of
Kaliammal then along, the question of Kaliammal''s son claiming any right to the property of Alagarsamy would arise. In view of the provisions of
Hindu Succession Act, 1956, for the question of disqualification would arise only as regards Kaliammal''s son to lay any claim for the properties of
Alagarsamy. But, that is not the position here. Therefore, rightly, the Appellate Court disagreed with the conclusion of the trial Court in that regard.
Even otherwise, Section 91 of the Transfer of Property Act, as it stood before amendment of the Year 1929, besides the mortgagor,
empowered certain other persons also to redeem or institute a suit for redemption. Under clause (e) it was specifically provided that the committee
or other legal curator of a lunatic or idiot mortgagor on behalf of such lunatic or idiot, institute a suit for redemption. Therefore, even under the old
Act, a suit was maintainable on behalf on idiot or lunatic, provided it is by the committee or other legal curator of the lunatic. Now, in view of the
amendment Act 20 of 1929, clauses (d) and (e) of Section 91 have been deleted as superfluous. Order 32, Rule 15, C.P.C. is to the effect that
Rules 1 to 14 shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also
apply to persons, who though not so adjudged, are found by the court on enquiry to be in capable, by reason of any mental infirmity, of protecting
their interest when suing or being sued. Order 32, C.P.C. refers to suits by or against minors and persons of unsound mind. The provisions of
Rules 1 to 14 of Order 32, C.P.C. are held to be applicable to persons of unsound mind so adjudged before or during the pendency of the suit.
Here, in this case, Kaliammal has been adjudged as a person of unsound mind during the pendency of the suit. Therefore, Order 32 provides the
procedure for a suit by or against a minor or a person of unsound mind. Ruler 3(1) of Order 32, C.P.C. specifies that any person who is of sound
mind and has attained majority may act as next friend of a minor or as his guardian for the suit. The only proviso is that if the interest of a such
person is adverse to that of the minor he cannot act as the next friend or guardian. Here in this case, admittedly the son of Kaliammal Somalingam
is not of unsound mind. He has attained the age of majority. Therefore, he is a fit person to be appointed as guardian or next friend of a person,
who is of unsound mind. Hence, as he is a fit person to be appointed as guardian or next friend of a minor, it is competent for him to maintain a suit
for redemption. The CPC sets out the procedure and the Transfer of Property Act deals with transfer of properties. Section 91 of the Transfer of
Property Act only lays down that besides the mortgagor, certain other persons are entitled to institute a suit for redemption. They are persons who
have interest or change upon the property mortgaged. It also includes persons who have any interest in the property mortgaged. The plaintiff, as a
heir of deceased Alagarsamy, has interest in the property. She is a legal representative of the mortgagor. A mortgagor is entitled to redeem or sue
for redemption. Therefore, a heir of a mortgagor is equally entitled to redeem or claim redemption. Hence the order of the lower Appellate Court
holding that the suit filed by the next friend of Kaliammal, a person of unsound mind, is maintainable, is, in my opinion, in accordance with the
provisions of Transfer of Property Act, CPC and the Hindu Succession Act. The finding of the trial Court is, therefore, erroneous one. It failed to
take into account the ambit of the disqualification of a person who became a heir and set out in the provisions of Hindu Succession Act. It also
failed to consider the fact that the next friend himself is a person, who has attained majority and is of sound mind and, therefore, entitled to
represent another and file a suit. The plaintiff is a heir of the mortgagor. She claims a right in the property not through the act of her son, but
independently on her right as the heir of the deceased Alagarsamy. The trial Court has failed to take into consideration these aspects. Therefore,
rightly the Appellate Court has taken the view that the plaintiff is entitled to a decree as prayed for. Hence I answer this point holding that
notwithstanding the deletion of Section 91(e) of the Transfer of Property Act, a suit by a lunatic person can be maintained for redemption of a
mortgage through a next friend or guardian and that the suit is, therefore, maintainable and the plaintiff is entitled to a decree as prayed for.
In the result, the second appeal is dismissed with costs, confirming the judgment and decree of Sub Court, Sivaganga in A.S.No.19 of 1992,
dated 3-3-1983.