Suit for partition
raghavendra
(Querist) 09 May 2014
This query is : Resolved
sir,
suit for partition has been filed,along with the plaint we have filed application to appoint the plaintiff No-1 as a guardian of plaintiff No-2 ,here plaintiff No-2 is mentally retired lady and plaintiff No- 1 is aunty of plaintiff No-2, now my question- is court dispose off the appointment of guaradian application first or along with the otherwise issue case will go one.
thanking you
R.V.RAO
(Expert) 09 May 2014
appointing a guardian for mentally retarded person and suit for partition are both different issues.the court cannot take up both as same issue.you may be asked to file separate petition under Mental Health Act 1987 for Guardian Ship of a legal guardian.
Dr J C Vashista
(Expert) 10 May 2014
I agree with Mr R V Rao, first get the guardianship decided, then the suit may be filed on behalf of the lady under gaurdianship.
R.V.RAO
(Expert) 10 May 2014
thanks.Dr.sri j.c.vashistaJI.
Devajyoti Barman
(Expert) 10 May 2014
The court in a pending litigation like yours can very well appoint a guardian for a person of unsound mind under Order 32 of CPC.
For this no separate proceeding is required.
Rajendra K Goyal
(Expert) 10 May 2014
Should proceed as advised by the experts, agree to it.
raghavendra
(Querist) 10 May 2014
Thank you Mr Devajyoti Barman,
please tell me sir, is the court frame the preliminary issue on gurdian application on that issue should i need to lead the evidence ,
thanking you
Devajyoti Barman
(Expert) 10 May 2014
It is summarily appointed, no evidence on dock is required for this.
dr g balakrishnan
(Expert) 10 May 2014
problem is on unsound mind issue. first u have to prove how unsound or retarded to any court of law, other wise u become a laughing stock in legal circles please. clients indeed suffer, if they fight issues illogically, after all, in a circle, every point is the beginning and end on one side of your point.. forward of point is beginning ending part is ending!
law works on logics only; not otherwise that i believe all of you know; so we say study the facts thoroughly and write opinions for yourself if you charge a client for whole work; else take a fee for opinion writing to guide the client correctly and save wastage of time, if wastefully consumed then loser of time n money is your client, today clients play clever thy ask the fee very low less than you pay to your domestic help! naturally who is the loser lawyer or client!
T. Kalaiselvan, Advocate
(Expert) 10 May 2014
The provisions of Order XXXII Rule 3 of CPC on the subject issue is very clear and answer your query without requiring any further clarification in this aspect, shall reproduce the same herein below for your reference:
This rule will 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
Guardian for the suit to be appointed by court for persons of unsound mind
(1) Where the plaintiff/defendant is a person of unsound mind, the court, on being satisfied of fact of mentally handicapped, shall appoint a proper person to be guardian for the suit for such person of unsound mind
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the person of unsound mind or by the plaintiff
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has not interest in the matters in controversy in the suit adverse to that of the person of unsound mind and that he is a fit person to be so appointed
(4) No order shall be made on any application under this rule except upon notice to any guardian of the person of unsound mind appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father, or where there is no father, to the mother, or where there is no father or mother, or other natural guardian of the person of unsound mind, or, where there is no father, mother, or other natural guardian, to the person in whose care the person of unsound mind is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
Thus the application for guardianship will be taken up first before the issues being framed for main suit.
