Person whose physical infirmities affect cognitive skills can file suit through “Next Friend” invoking Rule 15, Order 32, CPC: Kerala HC5 min read

By- Akshay Gurnani

“… the word ‘mental infirmity'(physical infirmities) has been used in Order 32 Rule 15 C.P.C., to convey a meaning, which is wider and which would encompass something more than what the word ‘unsoundness of mind’ would cover”, the Court said.
The Kerala High Court on Tuesday interpreted the expression “mental infirmity”( physical infirmities) in Rule 15 of Order 32 in the Civil Procedure Code (CPC) as inclusive of physical disability-induced impairments of cognitive capacity (Mary v. Leelamma and Anr).
In doing so, the Court has ruled that persons whose physical disabilities affect their cognitive skills can file suits through a next-friend, as is the case with minors and persons of unsound mind or with mental infirmities. The case before the Division Bench of Justices SV Bhatti and Bechu Kurian Thomas involved a plaint moved to challenge a deed of partition filed by a physically-challenged, indigent woman, Leelamma, through her daughter Manju (her ‘next-friend’).
Leelamma had speech and hearing impairments. In the suit filed through her daughter, it was alleged that Leelamma was forced to give her thumb impression on certain documents which left her sister Mary (the appellant) with a lion’s share of a 62-cent property, leaving Leelamma with a mere 2.5 cents.
After the suit was decreed in Leelamma’s favour, the decree was challenged in the appeal before the Division Bench of the Court.
The Court was called upon to adjudge to whether a partition deed dividing property between Leelamma (plaintiff/respondent) and her sister Mary (the appellant) was valid.
Leelamma, represented by her next-friend Manju, claimed that the appellant took advantage of her hearing and speech impairment in obtaining her assent to the partition. In submissions before the High Court, the appellant took the plea that Leelamma could not utilize a “next-friend” to argue her suit because she was not of “unsound mind” in terms of the CPC.
The questions framed by the Court to decide the case included those touching upon the following aspects:
• The propriety in Manju’s appointment as next friend;
• The validity of the partition deed;
• The correctness of the trial court judgment.
Rules 1 to 14 of Order 32 of the Code of Civil Procedure allows minors to be represented in Court through a “next friend”. Rule 15 of the Order the extends this principle to persons of “unsound mind.” Rule 15 states:
“Rules 1 to 14 (except rule 2A) 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.”
Justice Bechu Kurian Thomas, authoring the judgement for the Bench, noted,
“Though the heading of the section mentions only persons of unsound mind, a reading of the above extracted provision will show that it deals also 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. Legislature has used two terms in the same provision – ‘unsound mind’ and ‘mental infirmity’(physical infirmities). Certainly, both are not intended to cover the same situation.”
The Court went on to hold, “… we have no doubt that, the word ‘mental infirmity’ has been used in Order 32 Rule 15 C.P.C., to convey a meaning, which is wider and which would encompass something more than what the word ‘unsoundness of mind’ would cover.”
Explaining that “cognitive skills” enable a person to orient herself with the world, Justice Kurian expressed that infirmity of cognition would necessarily impact the mind and affect the person’s capacity to her protect civil rights. It was further noted that where a physical impairment is such that it is almost difficult to communicate, it can be viewed as an infirmity akin to mental infirmity under Rule 15 of the CPC. As explained in the judgment,
“If the impairment of hearing is to such an extent that it is almost difficult to communicate with that person, or even comprehend any reply given by him, except by understanding the signs by which one communicates with him, then there arises a weakness of the mind. This weakness, akin to an infirmity, makes it almost impossible for any person, other than those intimately acquainted with that person or a trained interpreter, either to reach his mind or to interpret it. When the infirmity of hearing is to such an extent that no one, other than those closely associated with that person or an interpreter alone is able to communicate and reach that person’s mind, then, that infirmity could be regarded as a mental infirmity for the purpose of Order 32 Rule 15 of the C.P.C. Such a person though not mentally unsound, is, for the purpose of Order 32 Rule 15 of the Code of Civil Procedure, 1908, a person who is mentally infirm.”
The Court expounded this principle with aid from judgments of various High Courts. In this backdrop, the Court rejected the appellant’s arguments against the appointment of a next friend by Leelamma. The appellants’ contention that the lower court failed to ascertain Leelamma’s soundness of mind was also rejected by the Court since this ground had not been raised earlier.
Noting that Leelamma resided with the appellant and that the appellant looked after her, the Court proceeded to iterate that, “If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence lies upon the person who was in a position to dominate the will of the other.” The Court eventually concurred with the trial court that the two partition documents in question had been executed against Leelamma “through undue influence and fraud” and that the same is, therefore, null and void.
After appreciating the facts involved in the case, the appeal was partly allowed. However, the Court emphasised that Leelamma was entitled to her lawful share of the property.
“… we do not find any reason to interfere with the judgment of the Subordinate Judges Court, Muvattupuzha in O.S No. 17 of 2015, as regards the share of the plaintiff (Leelamma) is concerned”, the Court said.

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