IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 CRP.No. 1899 of 2002 AGAINST THE JUDGMENT IN O.S.NO.561/97 DATED 28.2.2001 OF THE MUNSIFF'S COURT, KAYAMKULAM. REVN. PETITIONER: ------------------------------- RASHEEDA, D/O.ABDUL RAZAK KUNJU, KANDISSERITHARAYIL PERINGALA MURI, KRISHNAPURAM VILLAGE, FROM CHEMPAKAPPALLIL KUTIYIL VEEDU, KADUVINAL MURI, VALLIKUNNAM VILLAGE BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENTS: --------------- 1. NAZEER, S/O. ABDUL RAZAK KUNJU, PUTHEN VEETTIL, PADEETTATHIL, KRISHAPURAM VILLAGE, FDROM CHEMPAKAPPALLIL KUTTIYIL VEEDU, KADUVUMAL MURI, KRISHNAPURAM VILLAGE. 2. NAZIYATH, D/O. ABDUL RAZAK KUNJU, CHEMPAKAPPALLIL KUTTIYIL VEEDU, KADUVUMKAL MURI, VALLIKUNNAM VILLAGE. 3. RAMLATH W/O.BDUL RAZAK KUNJU, CHEMPAKAPPALLIL KUTTIYIL VEEDU, KADUVINAL MURI, VALLIKUNNAM VILLAGE. (DIED) IT IS RECORDED THAT LEGAL HEIRS OF R3 ARE NOT TO BE IMPLEADED AS HER CHILDREN ARE R1 AND R2, AS PER ORDER DATED 16.11.2006 IN MEMO BEARING CF.6446/06. ADV. SRI.C.RAJENDRAN FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 5/4/2011, THE COURT ON 24/05/2011 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 1899 OF 2002 C ------------------------------------------------------ Dated this the 24th day of May, 2011 O R D E R Abdul Razak Kunju, the father of the petitioner herein, filed O.S.No.561 of 1997 on the file of the Court of the Munsiff of Kayamkulam, for a declaration that the documents executed by him do not bind on him and the properties and that they are null and void and also to set aside and cancel the documents. Abdul Razak Kunju was represented by his next friend and daughter Rasheeda, the petitioner herein. The defendants in the suit are the son, daughter and wife of Abdul Razak Kunju. Abdul Razak Kunju died during the pendency of the suit. I.A.No.1075 of 1998 was filed by the petitioner to implead four other persons as the legal representatives of the deceased plaintiff. The petitioner also filed I.A.No.1076 of 1998 to implead her as the second plaintiff. The court below dismissed I.A.No.1076 of 1998 by the order dated 28.2.2001 and on that date itself, dismissed the suit as abated. This Revision is filed by the petitioner challenging the judgment in the suit. The order in I.A.No.1076 of 1998 is not challenged in the Revision. The judgment passed by the court below reads as follows: C.R.P. NO.1899 OF 2002 :: 2 :: “Plaintiff is no more. Petition I.A.1076/98 dismissed. Suit abates. No costs.” 2. The records of the case were called for. From the records, it is seen that I.A.No.1076 of 1998 was dismissed by the following order: “This is an application by the next friend of the deceased plaintiff herein, to implead herself as additional plaintiff and to prosecute the suit. Heard both sides. The petitioner has instituted this suit as the next friend of the plaintiff for declaration. However there is no averment that the original plaintiff had any legal disability. According to the petitioner the original plaintiff due to old age and advanced stage of cancer was unable to understand things in the proper perspective and so the suit was filed by her as next friend. At the very outset it is to be stated that the original plaintiff appeared before this Court in person on 24.1.98 and submitted that this suit is instituted without his knowledge and consent and that he does not want to proceed with the suit. The duty of a next friend is to represent the plaintiff who is suffering from any legal C.R.P. NO.1899 OF 2002 :: 3 :: disability and the locus standi of the next friend ceases when the legal disability ceases or when the original plaintiff dies. The next friend cannot subrogate to the position of the original plaintiff. The relief sought for by the original plaintiff in this suit is a declaration of his rights over the plaint schedule property which is a right in personam and with the demise of the original plaintiff such rights ceases to exist and consequently nothing survives for decision and the next friend has no locus standi to get herself impleaded and prosecute the suit. Hence this application is dismissed.” On the date on which I.A.No.1076 of 1998 was dismissed, I.A.No.1075 of 1998 was also dismissed on the ground that I.A.No.1076 of 1998 was dismissed. As stated earlier, on the same date, the suit was also dismissed on the ground that I.A.No.1076 of 1998 was dismissed. 3. The contention of the petitioner is that there is no abatement. The cause of action survives and the petitioner having filed an application for impleading, the court below could not have dismissed the suit on the ground of abatement. It is submitted that the judgment of the court below is illegal and unsustainable and C.R.P. NO.1899 OF 2002 :: 4 :: therefore, it can be interfered with in the exercise of the jurisdiction under Section 115 of the Code of Civil Procedure. The learned counsel for the petitioner also submitted that the power under Article 227 of the Constitution of India can also be invoked to set right the proceedings and to see that the suit is disposed of in accordance with law. The applications for impleading were filed within time as stipulated under Article 120 of the Limitation Act. The court below dismissed I.A.No.1076 of 1998 on the following grounds: (1) The plaintiff (Abdul Razak Kunju) appeared before Court in person and submitted that the suit was instituted without his knowledge and consent. He also stated that he did not want to proceed with the suit. (2) The next friend cannot subrogate to the position of the original plaintiff. (3) The relief sought for by the plaintiff in the suit is for a declaration of his right, which is a right in personam. With the demise of the plaintiff, such right ceases to exist and nothing survives for consideration. Therefore, the next friend has no locus standi to get herself impleaded and to prosecute the suit. 4. Every suit instituted by a minor or by a person adjudged, before or during the pendency of the suit, to be of unsound mind or by a person who, though not so adjudged, is found by the court on C.R.P. NO.1899 OF 2002 :: 5 :: enquiry to be incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued, shall be instituted by a next friend on behalf of the plaintiff. Every person has a right to institute a suit if he has a cause of action for the same. If such a person is a minor or a person of unsound mind, a next friend can institute the suit on his behalf. A decision rendered in such suit shall be binding on the plaintiff. If the plaintiff is not a person adjudged to be of unsound mind, Rule 15 of Order XXXII of the Code of Civil Procedure provides that the court shall make an enquiry to ascertain whether the plaintiff is incapable, by reason of any mental infirmity, of protecting his interests. Allowing a next friend to institute a suit on behalf of a person on the ground that such person is of unsound mind or a person having mental infirmity, really affects the status of the plaintiff if really he is a person capable of suing. Grant of such permission by the Court would certainly affect his civil rights. An inbuilt safeguard is made in Rule 15 of Order XXXII to make an enquiry for the purpose of satisfaction of the Court as to whether the plaintiff is incapable of filing the suit by himself or whether a next friend should be allowed to institute the suit on his behalf. If it is found that the plaintiff has no mental infirmity or any other infirmity warranting permission to be granted for the next friend to sue on his C.R.P. NO.1899 OF 2002 :: 6 :: behalf, necessarily, no permission can be granted to institute the suit by the next friend. Only on finding that the plaintiff is incapable to institute the suit as provided under law, the Court would allow the next friend to institute and to prosecute the suit. Such an enquiry is mandatory. 5. In Raveendran v. Sobhana (2008 (1) KLT 488), a Division Bench of this Court held thus: “10. The decision under O.32 R.15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions. In C.R.P. NO.1899 OF 2002 :: 7 :: the decision reported in S.C.Karayalar v. V.Karatakar (1968 MLJ 150), it was held that holding of an enquiry under O.32 R.15 ....” is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend.” 6. In the present case, no such enquiry was conducted by the Court. It is recorded by the Court in the proceedings on a particular date that the plaintiff appeared before Court and stated that the suit was filed without his knowledge and consent and that he did not want to proceed with the suit. It could be that such a statement was made voluntarily. It could be that at the time of making such a statement, he was of sound mental state of mind. It could also be that he stated so before Court at a time when he did not have such mental capacity. It could also be that such a statement was made at the instigation of any of the defendants. The court below did not make any enquiry at all on those aspects and it did not consider the feasibility or otherwise of the suit being allowed to be prosecuted by the petitioner as the next friend. Unfortunately, Abdul Razak Kunju passed away shortly. Even thereafter, no enquiry was conducted by the Court as to whether the suit was properly instituted by the next C.R.P. NO.1899 OF 2002 :: 8 :: friend. On the main ground that the cause of action does not survive and also on the ground that the relief of declaration was personal to Abdul Razak Kunju, the Court below dismissed I.A.No.1076 of 1998 and on that basis dismissed I.A.No.1075 of 1998 as well as the suit. The procedure adopted by the Court below is illegal and unsustainable. The petitioner had filed application for impleading herself as additional plaintiff. She also filed another application to implead four of the other legal heirs of the deceased as additional defendants in the suit. 7. A suit for declaration that the documents executed by the donor or assignor are not valid, or are vitiated by undue influence, fraud or coercion, could be filed by the donor or assignor, as the case may be. Such a suit could be filed by any of his legal representatives after his death. A suit for declaration filed by the donor or assignor, on his death, could be continued to be prosecuted by his legal representatives. The right to institute the suit for declaration cannot be said to be personal to such donor or assignor. On the death of the donor or assignor who instituted the suit, the cause of action survives in favour of his legal representatives. The suit would not abate on the death of such a plaintiff, provided an C.R.P. NO.1899 OF 2002 :: 9 :: application for impleading was filed within time by his legal representatives. The finding of the court below that the relief was a personal relief and it did not survive after the death of the original plaintiff is unsustainable. 8. In Pardhana v. Amin Chand and others (AIR 1977 HIMACHAL PRADESH 94), a suit was filed for a declaration that the plaintiff was the owner of the property and that the gift deed executed by her was vitiated by fraud and misrepresentation. During the pendency of the suit, the plaintiff died. Application was made by her legal representatives for substituting them as legal representatives. The trial court held that on the death of the plaintiff the right to sue survives to her legal representatives and allowed the application for impleading. That order was challenged in Revision. Dismissing the Revision, R.S.Pathak, C.J. held thus: “The right to revoke a gift on those grounds is a right conferred by statute. It does not flow from any personal contract between the parties to the case. It is not a right which is confined in point of time to the individual self of the donor. It is not a right which dies with him. On the death of the donor, the cause of action survives to his legal representatives.” C.R.P. NO.1899 OF 2002 :: 10 :: 9. In Stella Pereira Blaizue Pereira v. Adima Abdul Latheef (AIR 1969 Kerala 286), it was held thus: “7. The principles that we can decoct from the above decisions appear to me to justify an interference in revision in this case. The dismissal of the suit is unwarranted and illegal once the only party on record as plaintiff is stated to be dead. Similarly, there cannot be an abatement once an application has been filed under Order XXII Rule 3 C.P.C. within the time limited. Since such an application has been filed in this case all that remained to be done was for the Court to take steps to ascertain whether the persons mentioned as legal representatives before it were really so. It could not have dismissed the application for impleading the legal representatives without discharging this duty. Of course, an opportunity should have been given to the defendants on record to establish that the persons who desired to come on record as legal representatives were not competent to represent the deceased.” 10. The reasons stated for dismissal of I.A.No.1076 of 1998 are unsustainable. The suit was dismissed only on the ground that I.A.No.1076 of 1998 was dismissed. The finding that the cause of action does not survive is also unsustainable. The Court did not C.R.P. NO.1899 OF 2002 :: 11 :: consider the question whether the application for impleading is otherwise maintainable or as to who should be impleaded as the legal representatives. As stated earlier, the court also did not make any enquiry under Rule 15 of Order XXXII of the Code of Civil Procedure. The dismissal of the suit on the ground that the suit has abated is illegal and unsustainable. That the petitioner did not challenge the order in I.A.No.1076 of 1998, to my mind, should not stand in the way of correcting the erroneous decision made by the court below. The power under Section 115 of the Code of Civil Procedure can be exercised even suo motu. By exercising such power, the order in I.A.No.1076 of 1998 is set aside. Accordingly, the judgment of the court below is also set aside. The case is remanded to the lower court to consider I.A.Nos.1075 of 1998 and 1076 of 1998 afresh in the light of the observations made above and after affording an opportunity of being heard to both parties. The Civil Revision Petition is allowed as above. No costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P. NO. 1899 OF 2002 O R D E R 24th day of May, 2011 -------------------------------------------