Ker HC | Can person with physical infirmities seriously affecting cognitive functions file suit through ‘next friend’?

Kerala High Court: A Division Bench of S.V. Bhati and Bechu Kurian Thomas, JJ., addressed an issue pertaining to the following terms,

Total deprivation, through a partition deed and a release deed, of the property of a deaf and dumb sister forced her to approach the Court to restore her rights in her property and claim partition.

In the present matter, Court held that persons having physical infirmities like deafness or dumbness which seriously affect their cognitive functions can file a suit through “next friend”.

Mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness.

Facts

Mary, Leelamma, and Aani are sisters. Mary being the eldest and Aani the youngest. Leelamma, the second amongst the sisters, is a deaf and dumb person. She is also illiterate.

The eldest sister claimed to have brought up Leelamma under her care and custody, conducted her marriage, and that of her daughter too. Leelamma’s conjugal life with her husband did not last long as she came back along with her daughter to Mary’s care.

Allegation

Leelamma alleged that partition deed and the release deed were executed on account of fraud and undue influence exerted over the plaintiff and thus sought to set aside the documents.

Partition Deed

As per the partition deed, the properties left behind the mother were divided between the three sisters.

Defendant 1 was allotted A schedule comprising 60 cents, while B schedule comprising just 5 cents, was allotted to the share of both plaintiff and defendant 1. Youngest sister and defendant 2 recited in the document that she is relinquishing her share in the properties.

Mary, defendant 1 the absolute owner of the entire 65 cents property.

Fraud and Dishonesty

Plaintiff conveyed to her daughter through gestures that she had been taken to some place to give her signature and that her thumb impression was taken.

Plaintiff alleged that release deed was cerated by undue influence, fraudulently, dishonestly, and without her knowledge or consent.

Next Friend

Defendant 1 questioned the right of the next friend to file the suit and also denied the incapacity of the plaintiff as far as her ability to comprehend and do things by herself was concerned and also denied the allegation of fraud, cheating and undue influence exerted by the defendants over the plaintiff.

Analysis and Decision

Next Friend

Order 32 Rule 15 of the Code of Civil Procedure, 1908 deal with Suits by or Against Minors and Persons of Unsound Mind. Appointment of next friend for a person with an unsound mind.

Further, the said provision deals with persons of mental infirmity, who are, by the said reason, incapable of protecting their interests, except with the assistance of a next friend, when suing or being sued.

Mental Infirmity

Living as a deaf and dumb person, has a debilitating effect on the mental faculties of comprehension, thought, communication and even response. These faculties when affected will have an effect on the person’s capacity to protect his civil rights.

Fraud, Undue Influence or Coercion

There is no dispute with the proposition that the burden of proof in respect of the plea of fraud, undue influence or coercion is upon the person who alleges the same.

Valid Contract

Free consent, competency to contract, lawful consideration, lawful object and agreement not declared to be void, are the main ingredients for a valid contract. It is a consensual act and the parties are free to settle any terms as they please.

Whether consent for partition and for the release deed has been obtained by undue influence or fraud played by the defendants upon the plaintiff?

High Court observed that, taking care of one’s own sister is a gratuitous or magnanimous act for which it cannot be believed that the entire property will be given away.

Position of Dominance

In the present matter, the defendants failed to prove good faith in the transaction and the execution of release deed documents was proved to have been done exploiting the position of dominance in which defendant 1 wielded over the plaintiff.

Principle of Undue Influence

Hence Court being of firm view stated that the said transactions relating to the share right of the plaintiff are void on the principle of undue influence.

Court also observed that nowhere does the document recite as to why more than 95% of the property (62.5 cents out of a total of 65 cents) left behind by mother of the parties to the document has been allotted to the share of the defendant 1, while the plaintiff is left with a meagre 4% (2.5 cents). Even the 2.5 cents allotted to the plaintiff was released in favour of the defendant1, within a period of five days of execution of Ext.A1. Though the document mentions payment of Rs 2.5 lakhs as consideration for the said transaction, it has come out in evidence that no such payment was received by the plaintiff.

“Fraud in the present case is evident and it has been deployed to exploit a hapless lady of her properties.”

Fraud

Referring to Section 34 of the Indian Registration Act, 1908 and the Rules made thereunder may be apposite in the present context and Court found that the failure to inform the Sub-Registrar about the deafness and dumbness of one of the parties to the document was a deft method in playing fraud.

Hence, defendant 1 is entitled to 2/3rd share in the plaint schedule property and held that defendant 2 is not entitled to any share. [Mary v. Leelamma, 2020 SCC OnLine Ker 2491, decided on 30-06-2020]

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