IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 29750 of 2007(N) -------------------------------------- AGAINST THE ORDER DATED 28/06/2007 IN IA 1526/06 IN OS.1197/2005 of II ADDL.M.C., ERNAKULAM .................... PETITIONERS: --------------------- 1. M. UDAYAKUMAR KAMATH, AGED 43 YEARS, S/O. MURALEEDHARA KAMATH, KASHYAP, OPP. S.S. KALAMANDIR, T.D. ROAD, ERNAKULAM. 2. SHOBHA UDAYAKUMAR, AGED 41 YEARS, W/O. UDAYAKUMAR KAMATH, KASHYAP,OPP.S.S.KALAMANDIR T.D. ROAD, ERNAKULAM. 3. R. SANTHA PRABHU, W/O. V.RAMANANDA PRABHU, AGED 60 YEARS, RESIDING AT 40/7176, 1ST FLOOR, T.D.ROAD, NEAR T.D.TEMPLE, ERNAKULAM, KOCHI-682 035. (NOW RESIDING AT SREE MAHALAKSHMI GRIHA SANKULAM, T.10, T.D. WEST ROAD, KOCHI-682 035). BY ADV. SRI.V.SANTHARAM SRI.ANTO THOMAS RESPONDENTS: ---------------------- 1. A.R. PRABHU AND BROTHERS (LIFE STYLE SHOPPE), BROADWAY, ERNAKULAM, REP. BY ITS MANAGING PARTNER, VIJAYA K.PRABHU, LAKSHANA, CONVENT ROAD, ERNAKULAM. 2. V. RAMANANDA PRABHU, PARTNER, NOW RESIDING AT SREE MAHALAKSHMI GRIHA SANKULAM, T.10,T.D.WEST ROAD,KOCHI-682 035,REP.BY MR.K.P.MADHU, S/O.K.E.PUSHPANGADAN, ADVOCATE, ERNAKULAM (THE COURT GUARDIAN APPOINTED BY THE LEARNED MUNSIFF U/ORDER DTD.28-06-07 IN IA.1526/06 BY ADV. SRI.NIRMAL.S. (ADV.COMMISSIONER) SRI.M.P.RAMNATH - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2008, ALONG WITH WPC NO. 31447 OF 2007 SP(C) 32009/2007 WPC NO. 32062 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29750/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE COUNTE AFFIDAVIT DT. 2.6.9.05 FILED BY THE PETITIONERS IN IA. 7640/05. EXT.P2:- COPY OF THE IA. NO.8325/05 DT. 1.10.05 FILED BY THE 3D PETITIONER AND THE 2ND RESPONDENT. EXT.P3:- COPY OF THE IA. 1526/06 FILED BY MR.R.KRRISHNAKUMAR PRABHU. .EXT.P4:_ COPY OF THE COUNTERR AFFIDAVIT FILED BY MRS. VIJAYA K.PRABHU IN IA. 1526/06. EXT.P5:- COPY OF THE MEDICAL CERTIFICATE DT. 17.3.2006 PRODUCED BY THE PETITIONERS ISSUED BY THE MEDICAL BOARD. EXT.P6:- COPY OF THE IA. 6836/06 FILED BY THE 3RD PETITIONER. EXT.P7:- COPY OF THE ORDER DT. 23.8.06 IN IA. 598/06 IN OS. NO.370/04 PASSED BY THE PASSED BY THE PRINCIPAL SUB JUDGE, ERNAKULAM. EXT.P8:- COPY OF THE ORDER DT. 1.6.06 IN IA. 1009/06 IN OS. 438/04. EXT.P9:- COPY OF THE MEDICAL CERTIFICATE PRODUCED BY THE PETITIONERS BEFORE THE ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM ON 22.6.07. EXT.P10:- COPY OF THE ORDER DT. 28.6.07 IN IA. 1526/06. /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== W.P.(C) Nos.29750,31447,32009 &32062 OF 2007 ===================== Dated this the 6th day of February, 2008 JUDGMENT All these writ petitions relate to appointment of a guardian under Order 32 of the Code of Civil Procedure. In W.P.(C)No.29750/2007 the court rejected the application filed by the son of Sri.V.Ramananda Prabhu to appoint him as the guardian on the ground that it is vehementally opposed by the respondents. 2. In W.P.(C)No.31447 of 2007, the court below appointed a court guardian. In W.P.(C)No.32009 of 2007 the court had ordered to appoint the court guardian for Sri.Ramananda Prabhu. In W.P.(C)No.32062/2007 a court guardian was ordered to be appointed for the said Ramananda Prabhu. The approach of the courts below in refusing to appoint the son as the guardian of the person is mainly on account of a feeling that if appointed it will be adverse to the interest of Sri.Ramananda Prabhu and therefore refused to appoint him. In order to satisfy the conscience of this Court a Commissioner was appointed to find out regarding the mental capacity of Sri.Ramananda Prabhu. Sri.S.Nirmal, Advocate was appointed as the WP(C)29750/07 & con.cases -:2:- Commissioner, who visited the house and his report would reveal that Sri.Ramananda Prabhu has no control over his mental faculties and only having a limited control over his physical faculties. There is no dispute now between the parties regarding the incapacity of Sri. Ramananda Prabhu to represent himself. 3. Now the larger question arises is who is to be appointed as the guardian? Under ordinary circumstances, when a father is having a son, he will be entitled to be appointed as the guardian. The other persons living with Ramananda Prabhu are his wife and daughter. So the three persons interested therein, in other words, are the wife, son and the daughter. The wife and daughter has sworn to affidavits before the court contending that they have no objection in appointing the son as the guardian. 4. The resistance comes from the contesting defendants. The grievance is that according to them, the son is acting totally against the interest of the father for the reason that he is attempting to help the landlord. The reason is that the first defendant, viz., Ramananda Prabhu in some of the suits had contended that the building bearing business is conducted as a part and parcel of the partnership business whereas the son now in collusion with the landlord wants to make it appear that the building does not belong to the partnership concern as a tenant. Therefore, it is contended that there WP(C)29750/07 & con.cases -:3:- is an attempt to collude with other persons to defeat the interest. It is further contended that this Ramananda Prabhu has filed written statements in the cases admitting the factum of the entitlement of the partnership business to the building. Now we are at a stage where the court is contemplating to appoint a guardian on account of the unfortunate circumstances that Ramananda Prabhu, after the filing of the written statements in the cases has mentally and physically become incapacitated and is unable to look after his own affairs. The doubt or suspicion raised by the respondents in the matter is on account of some of the affidavits by the son in some proceedings, whereby they apprehend that he may turn around against the contention of his own father which he has filed while he was staying. Learned counsel for the petitioners would submit before me that the procedure to be adopted is under Order 32 Rule 15 C.P.C . A reading of the provisions of Order 32 would reveal that a person who is of sound mind who does not have adverse interest can be appointed by the court as the guardian. Mere raising of suspicion may not be a ground for rejection. Just because they apprehend that a contention against them will be raised by the proposed guardian is also not sufficient to throw it out. There is some apprehension even in the mind of the proposed guardian that all the written statements filed by Ramananda Prabhu were not on account of his own, but on account of some WP(C)29750/07 & con.cases -:4:- other factors influenced by others. Whatever it may be, the written statements filed by Ramananda Prabhu are there on the file. When a guardian is appointed, ordinarily that person will only continue the proceeding from that stage where the case stands. But there may be circumstances where he may have to act further. When such an act is done or proposed to be done then certainly all these objections raised by the contesting respondents in the writ petitions can be raised by them in that proceedings. The main apprehension of being away with the original written statements filed by the father can be only by way of either filing an application for amendment of the written statement or by filing an additional written statement. When such a situation arises, necessarily it has to be followed by petitions and notice to the other parties. When such a situation arises, respondents, who want to oppose the same can very well do in the form of a counter statement. When they are heard, they can bring into the notice of the court the attending circumstances, which may weigh with the court in disposing of these applications. 5.Therefore at this stage, it may not be proper to hold that Ramananda Prabhu's son is having adverse interest against him. It may be a case where adverse interest may be in the reverse manner. But they are all matters which will have to be considered when circumstances arise. There is no bar WP(C)29750/07 & con.cases -:5:- to remove a guardian when it is pointed out to the court at any stage he is acting against the interest of the subject, i.e. the person for whom he is appointed as the guardian. Therefore I direct the court below to appoint Sri.R.Krishnakumar Prabhu as the guardian of Sri.V.Ramananda Prabhu. I make it further clear that whenever Krishnakumar Prabhu wants to deviate from the stand taken by the father, it must be in the form of an application with notice to others and the court has to consider it after hearing both sides depending upon the materials available before it at that time. I also make it very clear that this order is passed in terms of Order 32 C.P.C. With these observations, writ petitions are disposed of. M.N.KRISHNAN, JUDGE Cdp/-