1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.376 OF 2009 IN SUIT NO.1777 OF 2004 Salma A. Makati & Ors. ....Plaintiffs V/s. Shabbir S.S. Pachorawala & Anr. ....Defendants And Samina S. Pachorawala ....Applicant Ms.Neeta Karnik for the Applicant in support. Mrs.Anita Castelinno with Mr.A.S.T. Zaidy, Mr.Ali Zaidy and Ms.Tasneem Zaidy i/b M/s.Zaidy & Co. Plaintiffs. Mr.Sunil Gangan i/b RMG Law Associates for Defendant No.1. Mr.Madhav Jamdar for Defendant No.3. Mrs.Gulekar, Section Officer, Court Receiver present. CORAM : S.J. VAZIFDAR, J. DATE : 10TH DECEMBER, 2009. P.C. :- 1. Plaintiff No.5 has purportedly taken out this Chamber Summons to have declared null and void an affidavit of Plaintiff No.1 dated 12.5.2004 declaring herself as the next best friend of the Applicant/Plaintiff No.5. For convenience I will refer to Plaintiff No.5 as the Applicant. The Applicant has also sought an order directing Plaintiff Nos.1 to 4 to array her as Defendant No.4. Certain interlocutory reliefs are also sought which are not 2 necessary to be considered in this Chamber Summons. Appropriate proceedings for the same may be adopted by the parties. 2. The suit is filed for the administration of the estate of the deceased father of the Plaintiffs including the Applicant and Defendant Nos.1 and 2. Defendant No.3 is a partnership firm, which was impleaded subsequently. Defendant No.1 and the members of his family are the partners of Defendant No.3. 3. In paragraph 15 of the plaint, it is alleged that Plaintiff No.5 is a person of unsound mind and at the time of filing of the suit, she was under the treatment of Chaitanya Mental Health Care Centre. According to Defendant Nos.1 and 2, the entire estate of the deceased vests in Defendant No.3. The Plaintiffs have denied the same. According to them, the estate vests in the Plaintiffs and Defendant Nos.1 and 2. There is no dispute that the Applicant has a 10% share in the estate of her deceased father. 4. In accordance with rule 63 of the Bombay High Court (Original Side) Rules, Plaintiff No.1 filed an affidavit dated 12.5.2004 inter-alia stating that the Applicant is a person of unsound mind ; that she was then undergoing treatment at Chaitanya Mental Health Care Centre and that she has a 1/10th share in the estate of her father. It is averred that Plaintiff No.1 has no interest, directly or indirectly, adverse to the Applicant and that Plaintiff No.1 was otherwise a fit and proper person to be appointed as the next best friend of the Applicant. 5. It is not necessary to deal with the various proceedings adopted by the parties and the details of the disputes between them. 3 Suffice it to state that the properties of the deceased are extensive and extremely valuable. Considering the nature of the matter especially the present Chamber Summons, it was necessary to ensure that the status/condition of the Applicant be assessed with utmost care and caution. It is a matter that pertains to the Applicant’s status and her right to deal with her properties freely. 6. Order 32 Rule 15 of the Code of Civil Procedure reads as under :- “[15. Rules 1 to 14 (except rule 2-A) to apply to persons of unsound mind . - Rules 1 to 14 (except rule 2-A) 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 incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.]” It is common ground that the Applicant has not been adjudged to be of unsound mind by any Court or authority. The Court must however also consider on enquiry whether the person by reason of any mental infirmity is incapable of protecting his or her interest when suing or being sued. My attention was invited to a judgment of a Division Bench of this Court in Somnath v. Tipanna, AIR 1973 Bombay 276. The Division Bench has set out in detail the procedure to be adopted by the Court even before the Court issues a process to the other side. The Division Bench observed that there is no formal order regarding admission of the plaint but the procedure adopted in registering the plaint and issuing process is tantamount to admitting the plaint. It was further held that in the case of a plaint which is presented on behalf of a person of unsound mind by the 4 next best friend, the representation by the next best friend, does not become effective for the purpose of admitting the plaint and issuing process against the Defendant until the stage contemplated by order 32 Rule 15 of the C.P.C. is reached. If the concerned person is not adjudged by the competent Court until the Court finds to be so on an enquiry contemplated under Order 32 Rule 15 of the C.P.C., the provisions of Rule 1 to 14 of that order do not get extended and there is no plaint properly presented so as to call upon the Defendant for issuing process. It was held that it is a part of the Court’s duty to at once give a finding after enquiry under Order 32 Rule 15 of the C.P.C. 7. The suit in that case had been filed in the Court of Civil Judge (Senior Judge), Pune. It is not necessary for me to consider whether this procedure ought to have been followed or not in the present suit which is filed on the original side of this Court. Rules 63 and 68 of the Bombay High Court (Original Side) Rules read as under :- “63. Next friend of minor to make affidavit. Order of appointment unnecessary . - When a suit is brought on behalf of a minor, the next friend shall make an affidavit, to be presented with the plaint in the suit, that he has no interest directly or indirectly adverse to that of the minor, and that he is otherwise a fit and proper person to act as such next friend. The date of birth of the minor, if known, or otherwise his age, shall also be stated. No order appointing the next friend by whom the suit is to be instituted will be necessary. 68. Application of Rules 63 to 67 to persons of unsound mind . - The provisions contained in Rules 63 to 67 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 inquiry by reason of unsoundness of mind or mental infirmity to be incapable of protecting their interest when 5 suing or being sued.” 8. In the present case, the plaint has been admitted. It is not open at this stage for me to consider whether or not it was properly instituted in so far as it concerns the same having been filed by Plaintiff No.1 as next best friend of Plaintiff No.5/Applicant. 9. I proceed on the basis that the plaint was properly instituted. Even so, there is nothing which prevents the other parties subsequently from challenging the institution of the suit by a person as next best friend of another. In Somnath’s case, the Division Bench held as under :- “18. We may at once point out that such an inquiry and finding may be good for the purpose of the next friend to present the suit and obtain first order of the court. This finding of the court does not and cannot bind the defendant who may after entering appearance point out to the court that it has been misled into giving a wrong finding and the defendant was willing to prove that the plaintiff was a person who was capable of protecting his own interests. If such a challenge is held out in a given case, the issue is still open between the parties. The defendant is entitled to prove this allegation. The court cannot shut out an inquiry simply because on the earlier inquiry by it, it gave a finding as contemplated by second part of Rule 15 of Order 32. If a defendant holds out such a challenge and succeeds in proving what he alleges, the consequences are obvious and we have already indicated what the court will do when on its own inquiry it found that the plaintiff was a person capable of defending his own interest. The same consequence might follow if the defendant is able to satisfy the Court that the plaintiff was a person who was capable of defending his interests.” 10. The observations would equally apply to a suit filed on the original side of this Court. A view to the contrary would lead to disastrous consequences. It was entitle any person to file a suit as the next best friend of another, and such other party would have no remedy in the event 6 of his not being of unsound basis and being capable of conducting the litigation on his own. 11. Before deciding this Chamber Summons, I had been through a considerably detailed exercise in assessing the Applicant’s ability to protect her interest in these proceedings on more than one occasion. I first interviewed the Applicant in Chambers on 30.7.2009. As recorded in the order dated 4.8.2009, I interviewed the Applicant in Chamber in the absence of the parties and their advocates and observed that before I come to a conclusion regarding the Applicant, it was desirable to obtain the opinion of an expert. I therefore, requested the head of the Psychiatric Department, J.J. Hospital, Mumbai to make a report as to whether the Applicant is incapable of protecting her interest in this suit or in any other legal proceeding by reason of being unsound mind or even suffering from any mental infirmity. 12. On 11.9.2009, I opened the sealed cover in which the report of the Dean of the Psychiatric Department, J.J. Hospital, Mumbai was received, read the report and resealed the same. The Applicant was requested to remain present again at 2.30 p.m. on 5.10.2009. I interviewed the Applicant again on 5.10.2009. By an order dated 15.10.2009, I summarized the report of the Dean of the Psychiatric Department, J.J. Hospital, Mumbai and also observed and directed as under :- “6. The report dated 7.9.2009 states that the plaintiff no.5 was observed from 17.8.2009 to 27.8.2009 and was interviewed in detail and that the previous treatment papers were studied and psychological tests were administered. The conclusion is “she is suffering from chronic schizophrenia in 7 full remission at present”. It is further observed that “she is well maintained on medication and is advised to continue the same under medical supervision.” It is also stated that she is symptom free, of sound mind and free from mental infirmity at present. Lastly, it is observed that she is capable of protecting her interest in this suit. 7. When I had interviewed plaintiff no.5, she answered questions I put to her of a general nature after considerable hesitation and in an extremely unsure and vague manner. She repeatedly told me that she had difficulties because she was suffering from schizophrenia. She was unable to answer any question whatsoever about the litigation and stated that she had not given any instructions for filing this Chamber Summons. She did not even know anything about the nature of the proceedings. What I found to be of some concern is that she was unable to throw any light upon the present Chamber Summons itself. She did not have the faintest idea about the same. 8. In view of the expert’s report that I have referred to, I interviewed plaintiff no.5 again on 5.10.2009 in the absence of the parties and their advocate. I saw no difference between my first meeting with plaintiff no.5 and the subsequent meeting. I wondered therefore whether the difference in perception could be on account of plaintiff no.5 having been under medication. 9. I am aware that it is possible that when a person is having medication it would effect his or her ability to reason things out clearly. The report does state that she is well maintained on medication. 8 10. As any order on this aspect has serious consequences not merely on the rights of a party to the property which is the subject matter of the proceeding, but also on the right of the parties to exercise his or her right in respect of such property, it is necessary to tread with utmost caution. 11. In the circumstances, I would request the head of the psychiatric department J.J.Hospital to furnish a report as to whether the condition of plaintiff no.5 would vary depending upon the medication and the time when it is administered. 12. Further from the report dated 7.9.2009 it is not clear whether plaintiff no.5 was observed and the report was prepared by the lecturer or the professor and the head of the department of psychiatry. The main signature is of the lecturer. The letter is also signed in the margin by the professor and the head of the department of psychiatry. 13. I would request the professor and the head of the department of psychiatry to clarify as to whether he himself observed plaintiff no.5 and prepared the report or whether the same was done by the lecturer. The Order dated 4.8.2009 requires the head of the psychiatry department to examine plaintiff no.5 and to make the report. I do not for a moment suggest that the lecturer is not competent conduct such an enquiry. However, the order dated 4.8.2009 requires the head of the department to do so. 14. The head of the psychiatry department is requested to furnish the clarifications as noted in this order on or before 5.11.2009.” 13. A further report dated 11.11.2009 was received from the 9 Professor and Head of the department, J.J. Hospital, Mumbai. It was clarified that one Dr.S. Umate and he had personally examined the Applicant independently and submitted the report to this Court which reads as under :- “CERTIFICATION 1. BOTH Dr.S. Umate & I have personally examined the patient Independently and a summarized report was submitted to Hon. H.C. as per established procedure. 2. The clinical condition of the patient Samina P. Pachorawala may vary significantly if there is : 1. any irregularity in medications. 2. Unfamiliar situations Or surroundings and 3. physical and mental stress. In such an event, an immediate follow-up is required.” 14. There is nothing on record that indicates any change in the Applicant thereafter. 15. I was, therefore, of the view that the Applicant certainly requires assistance in the form of a next best friend. This is despite the fact that to a considerable extent the Applicant is able to communicate. From the communication, I am unable to state that she is in a position to protect her own interest even by giving minimal instructions for this litigation which quite clearly is considerably complicated. 16. To ensure that no prejudice is caused to any of the parties and especially the Applicant by appointing the next best friend, I was anxious to afford the other parties an opportunity to establish that my perception 10 may have been on account of the state of the Applicant on the days on which I interviewed her. On behalf of Plaintiff Nos.1 to 4, an application was made to examine the Applicant/Plaintiff No.5 to establish that she was not capable of prosecuting the litigation on her own and required to be represented by the next best friend. Considering what transpired during the interview of the Applicant, I did not think it necessary to offer such an opportunity to Plaintiff No.1. I asked Ms.Karnik if she would like to examine Plaintiff No.5 in order to establish that it was not necessary for the Court to appoint the next best friend. The matter was therefore adjourned to today to enable to her seek instructions. She stated today that the Applicant was not in a position to undergo any questioning in view of her mental condition. She also stated that even the members of her family did not desire her being examined. 17. It is clear that there is little difference in the Applicant between the time I interviewed her and today. In these circumstances, I am of the view that the Applicant/Plaintiff No.5 is incapable of reason of mental infirmity of protecting her interest in the present proceedings or in any other proceedings. 18. The next question therefore, is whether Plaintiff No.1 ought to be permitted to continue to act as next best friend of Plaintiff No.5. As stated earlier, Plaintiff No.1 has contended that she has no interest adverse to that of the Applicant. On the other hand, the Defendants submitted that Plaintiff No.1 ought not to be permitted to act as the next best friend of the Applicant as her interests are adverse to that of Plaintiff No.5 and that Plaintiff Nos.1 to 11 4 had in fact acted to the prejudice of the Applicant/Plaintiff No.5. 19. In respect of their contention, the Defendants relied upon various facts. For instance, it was stated that the moneys that were received under the leave and licence agreement in respect of one of the properties belonging to the deceased were misappropriated. It was also contended that though this Court had directed a third party to pay the market compensation in respect of one of the said properties, Plaintiff No.1 had surreptitiously entered into the consent terms with the third party absolving the third party of such loss. That the consent terms were not ultimately finalized is of no relevance. It indicates, according to them, a mala-fide intention on the part of Plaintiff No.1. Another instance was of the purchase of a flat from money out of the estate of the deceased in the name of Plaintiff No.1 alone showing the Applicant/Plaintiff No.5 to be only a nominee. 20. I am not inclined, at this stage, to accept the submissions regarding the aforesaid conduct of Plaintiff No.1 being mala-fide. These are aspects which must await the trail. For instance the mere fact that Defendant Nos.1 to 5 may have agreed to give up licence fees at the market rate, would not indicate any male-fides on their part. This is for the obvious reason that according to them in consideration thereof, the third party had handed over possession of an area admeasuring 7000 sq.ft. Thus even if the consent terms are filed and even if Plaintiff Nos.1 to 4 had given up their right to the market compensation, it would not in the absence of evidence establish mala-fides for the benefit of possession of a property without the requirement of entering into any litigation is obvious. 12 21. As far as the flat is concerned, it is firstly stated that it was purchased by the deceased father. It was fairly stated by Plaintiff No.1 that the flat is in fact for the benefit of Plaintiff No.5/Applicant and that her name on the share certificate was only in view of the condition of the Applicant. If Plaintiff No.1 had any mala-fide intentions such a submission would not have been made. 22. The allegation regarding the Chaitanya Mental Health Care Centre also does not establish any mala-fides on the Plaintiff’s part per-se. The Applicant was being looked after at the Chaitanya Mental Health Care Centre. The Plaintiffs oppose its continued occupation of the premises. The Chaitanya Mental Health Care Centre however was in possession of the area of 2500 sq.ft. There is nothing to indicate that the Applicant could not have been equally well looked after in an institution without scarifying an area of 2500 sq.ft. alleged to belong to the estate. In any event the orders directing the institution to hand over possession were passed by this Court. It is not open to me therefore to draw any inference against the parties for the same. 23. Having said so however, in my view it is not in the interest of any of the parties to permit any of them to act as the next best friend of the Applicant. The Defendants can by no stretch of imagination be appointed as the next best friend of the Applicant for their interests are totally and absolutely contrary and adverse to that of the Applicant. They have in fact claimed the entire estate of the father of the exclusion of all others including the Applicant. 24. On behalf of the Plaintiffs to establish their bona-fides, the 13 learned counsel were willing to make any statement which would not permit them to act in any manner adverse or contrary to the interests of Plaintiff No.5. It is not necessary to give details of the statements herein. Plaintiff Nos.1 to 4 unconditionally accept and admit what is stated by them in the plaint that the Applicant has a 10% share in the estate of their deceased father and that has not been affected in any manner whatsoever. Although there is no cogent evidence of any mala-fide act on the part of Plaintiff Nos.1 to 4, it is necessary to appoint a third party as the next best friend for it is possible theoretically at least for Plaintiff No.1 to act in any manner contrary to the interest of the Applicant. If that be so, it is in fact in the interest of Plaintiff Nos.1 to 4 to have an independent person represent the Applicant to avoid any further complication, litigation as well as multiplicity of proceedings. The third party as next best friend of the Applicant will not prejudice the litigation. This is a suit for partition. Plaintiff Nos.1 to 4 have admitted the share of the Applicant. At this stage, there is every indication that Plaintiff Nos.1 to 4 will be prosecuting this litigation seriously. The benefit of any orders obtained by them will enure to the Applicant as well. For it is nobody’s case that the Applicant is not entitled to a 10% share in the estate of deceased father. On the other hand, a third party acting as the next best friend of the Applicant will be in a position to protect the interest of the Applicant in the event of there being any change in the attitude of the parties in future. I therefore, do not see the Applicant’s case being prejudiced or burdened unnecessarily by appointing a third party as the next best friend. 25. The parties have agreed that the costs of any legal 14 proceedings of the Applicant as approved by the Court will be paid from out of the estate of the deceased father at this stage but subject to final orders at the hearing of the suit. In the event of a shortfall the Plaintiffs and the Defendants shall pay the same equally. Any amounts so paid shall also be subject to the final orders at the hearing of the suit. 26. In the circumstances, the Chamber Summons is disposed of by the following order :- The Prothonotary & Senior Master of this Court shall appoint an officer of this Court to be the next best friend of the Applicant/Plaintiff No.5. Such officer shall be at liberty to appoint the advocate on behalf of the Applicant after the approval from the Court and subject to the terms and conditions stipulated by the Court. Needless to add that the officer of this Court shall be at liberty to apply for directions.