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Kerala high court on 30th June upheld the lower court impugned order by ramifying from the definition of 'mental infirmity' in rule 15 order 32 of code for civil procedure as an inclusive of persons physically infirmed affecting cognitive skills in the matter Mary versus Leelamma and another.
In the suit filed by Leelamma, who had speech and hearing infirmity through her daughter Manju challenging a deed of partition against her sister Mary where the later had influenced Leelamma for thumb impression which left Mary with huge share of 62 cents of property leaving Leelamma with merely 2.5 cents.
After the suit was deceased in Leelamma's favor the decree was challenged before the division bench comprising Justices SV Bhatti and Bechu Kurian Thomas. The significant question of law challenged before this bench was in the propriety in Manju's appointment as next friend which would therefore adjudge the validity of partition deed.
This appellant to the decree passed by trial court stated that Leelamma could not utilize as "next friend" to ague on behalf as she was not of "unsound mind" mentioned under CPC whereas appellant respondent asserted that petitioner had taken advantage of her hearing and speech impairments while obtaining her assent.
Justices on hearing the submissions, noted: " though the heading 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 sued. 'unsound mind' or 'mental infirmity' are not intended to cover the same situation".
Division bench, further, simplified the understanding of the "mental infirmity", stated that " If the impairment of hearing is to such an extent that it is almost difficult to communicate with that person, except that it is almost difficult to communicate with that person, except by understanding the signs by which one communicates with him, then there arises weakness of mind then such infirmity could be regarded as a mental infirmity for the purpose of order 32 rule 15 of CPC".
Therefore court observed that undue influence and fraud was committed by the petitioner and therefore declared null and void.
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