PARAMESWARAM PILLAI VELAYUDHAM PILLAI Vs. PARAMESWARAM PILLAI NARAYANA PILLAIALIAS KESAVA PILLAI

JUDGEMENT

(1.) This is an appeal against the dismissal of a suit O.S. No. 194 of 1122 M. E. by the temporary Additional District Judge, Nagarcoil. The suit was instituted by the appellant Velayudhan Pillai represented by his next friend Neelamma Pilla Lakshmi Pilla because ho was of unsound mind. The sole defendant Narayana Pillai alias Kesavan Pillai as the respondent in this appeal. Kochu Pilla and Bhagavati Pilla were two sisters. The plaintiff is the son of Kochu Pilla and the defendant the son of Bhagavathi Pilla. Kochu Pilla has also a daughter Lakshmi Pilla who died on 10th July, 1120 M. E. Kochu Pilla herself had died a year earlier in 1119 M. E. It is common ground that on the date of the suit the plaintiff was of unsound mind. There is no reliable evidence as to when exactly be became of unsound mind but admittedly he was not con-genitally insane. For the purpose of the appeal it can be taken that the plaintiff became insane sometime in 1096 or 1097 M. E. There were two schedules of property to the plaint. A schedule constituted items alleged to be tarwad properties and plaintiff and defendant constituted an undivided Nair tarwad. B schedule items are the separate properties of Kochu Pilla. The defendant's contentions were that as the plaintiff was of unsound mind he was not entitled to any share of tarwad properties and not entitled to maintain the suit for partition. So far as B schedule properties are concerned, the defendant set up a will alleged to have been executed by Kochu Pilla bequeathing the properties to him. It may be mentioned that the next friend of the lunatic described herself as the duly married wife of the plaintiff. The defendant denied the marriage. The learned District Judge held that so far as the tarwad properties set up in schedule A are concerned, the plaintiff though a member of the tarwad could not claim partition because of supervening lunacy. He found that the will set up by the defendant was not genuine. Nevertheless he dismissed the plaintiff's suit regarding B schedule properties also because of the same ground of supervening lunacy. In the result, the suit was dismissed. It may be mentioned that one of the issues raised was whether the next friend of the lunatic plaintiff was his legally wedded wife. The learned Judge found that the plaintiffs marriage with the next friend has not been proved beyond doubt and therefore she was not his legally wedded wife.

(2.) Before we deal with the main point in this case we shall briefly deal with a point raised by Mr. Sarangapani Aiyangar, learned counsel for the defendant- respondent, that the suit was not properly framed because on the finding that the next friend was not the legally wedded wife of the lunatic plaintiff, she could not file the suit on his behalf. It was difficult for us to follow the argument. Undoubtedly any person who is of sound mind and has attained majority may act as next friend of a minor or a lunatic for the suit, provided that the interest of that person is not adverse to that of the minor or the lunatic. It was not alleged that the next friend of the plaintiff in this case was not of sound mind or that she was not a major. Mr. Sarangapani Aiyangar contended that the interests of the next friend were adverse to those of the lunatic plaintiff. At first sight the contention appeared very odd but subsequently we discovered the argument to be that the interest of the next friend should be deemed adverse because she wanted to put herself forward as the legally wedded wife of the plaintiff so that she could knock away the properties of the lunatic plaintiff. The contention has got to be only stated to be rejected. The proviso to Order 52 Rule 3(1) read with Rule 15 in the case of lunatics has reference to adverseness of interest regarding the subject-matter. It is nobody's case that the next friend would be interested in seeing that the suit was dismissed. On the other hand even according to Mr. Sarangapani Aiyangar she would only be too anxious to obtain a decree on behalf of the lunatic. In such circumstances it cannot be held that the interests of the next friend were in any way adverse to those of the lunatic plaintiff. The suit was properly framed.

(3.) The issue as regards the alleged marriage between the plaintiff and the next friend was wholly unnecessary for disposal of the suit. Considerable time of the Court and the parties appears to have been wasted on this most irrelevant issue. All that we can do is to discharge the finding on this issue. The question can be agitated on any subsequent occasion when it really becomes material.