Next Friend Concept: A Brief Exposition

By: Jerine Alex (3rd year) and Rutuja Dhanraj Bukey (1st year)

1. Introduction

The term ‘next friend’ is derived from the French words ‘prochein ami’ which means ‘to stand as a representative for the person who is not in a position to stand for their own, like minors or a person of unsound mind. The concept of next friend is not only a very vital part of a minor’s life but also those of unsound mind and the disabled to bring justice for them and help them stand in the world and in courts.[i]

This article will focus on two recent high court judgements. The former regarding the appointment of a next friend for a disabled person and the second judgement is regarding guardianship for a person in vegetative state, thereby understanding whether the scope of order 32 of CPC can be widened.[ii] Mary v. Leelamma: A Division Bench of S.V. Bhati and Bechu Kurian Thomas, JJ, of the Kerala High court held that, persons having physical infirmities like deafness or dumbness which seriously affect their cognitive functions can file a suit through “next friend “and mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness.

2. Brief facts

Mary, Leelamma and Aani are sisters. Mary is the eldest and Aani, the youngest. Admittedly, Leelamma, the second amongst the sisters, is a deaf and dumb person. She is also illiterate. Mary claims 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, on account of difference of opinion with her husband. Even after the death of their mother, Leelamma continued to live with Mary. [iii]

Leelamma through her daughter Manju, as next friend, filed a suit as an indigent person before the Munsiff Court, Muvattupuzha, Alleging that the partition deed (Ext. A1) and the release deed (Ext. A2) executed on 5-1-2011 and 10-1-2011 respectively, were on account of fraud and undue influence exerted over the plaintiff, she sought for setting aside those two documents and for a declaration that the said deeds shall not affect the plaintiff's right over her properties

Ext. A1 is a partition deed, partitioning the 65 cents of property between the three sisters. As per the said deed, the properties left behind by their mother, having an extent of 65 Cents, was divided as two schedules-A and B. 1st defendant-Mary was allotted A schedule, comprising 60 cents, while B schedule, comprising just 5 cents, was allotted to the share of both plaintiff and the 1st defendant. Aani, the youngest sister and 2nd defendant, recited in the document that she is relinquishing her share in the properties. Thus, in short, when plaintiff received 2.5 cents of property under Ext. A1, the 1st defendant received 62.5 cents of property. Ext. A2 is a release deed executed within 5 days of execution of Ext. A1. Through that document, plaintiff is purported to have released her entire rights in the above referred 2.5 cents of property in favour of Mary. Thus Mary, the 1st defendant, became the absolute owner of the entire 65 cents.

When plaintiff's daughter visited her during the last week of January 2011, plaintiff conveyed through gestures, that she had been taken to some place to give her signature and that her thumb impression was also taken. On enquiry, plaintiff's daughter understood that Ext. A1 and A2 were created and that all rights in the property had been released by the plaintiff in favour of the 1st defendant, without even receiving any consideration. Plaintiff thus alleged that, Exts. A1 and A2 were created by undue influence, fraudulently, dishonestly and without her knowledge or consent.

The learned Subordinate Judge, after a detailed consideration of the facts and circumstances arising in the case, decreed the suit by declaring that the documents Exts. A1 and A2 are null and void with respect to the share of the plaintiff and also directed the property to be divided into three, by metes and bounds, and declared that the plaintiff is entitled to get one third share. 1st defendant (Mary) has come up in appeal.[iv]

3. Appeal in the High Court The following points arose for determination in this appeal: (1) Whether appointment of a next friend for the plaintiff was proper in the facts and circumstances of the case? (2) Whether Ext. A1 and Ext. A2 documents are null and void on account of undue influence or fraud or both? (3) Whether plaint schedule property is liable to be partitioned, if so to what extent?

(4) Whether the trial court judgment is liable to be affirmed, modified or reversed? (5) Who shall bear the costs? 4. Judgment

For the first issue the court clearly stated that unsoundness of mind and mental infirmity are two different things. However, being deaf and dumb does affect normal cognitive skills to a great extent and that only a person really close to that person can comprehend what the person is trying to convey. Hence the appointment of a next friend is absolutely necessary and justified.

Moving on to the next issue, dealing with whether Ext A1 and Ext A2 are null and void, the court held that the requisites for a valid contract under sec 10 of the ICA, 1872 is not fulfilled as there is lack of consent by Leelamma. It was also proved that there was coercion, fraud and undue influence. Mary was in a position to dominate the will of Leelamma; hence the two documents are null and void and there was no contract.

Coming to the most important part, regarding property division, it was held that the plaint scheduled property is liable to be partitioned. And the judgement of the trial court was slightly modified regarding Leelamma’s share in property. She is now entitled to 2/3rd share in the plaint scheduled property. Mary the first defendant was liable to bear the cost of appeal as well.[v]

Rajni Hariom Sharma v. Union of Indiavi: A Division Bench of Ujjal Bhuyan and Milind N. Jadhav, JJ., of the Bombay High Court held that, while addressing an issue with regard to the appointment of a guardian for a person who is lying in the state of coma, held that, “ the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.”

5. Brief facts

The petitioner’s husband was in a vegetative state for the past two years post a cardiac arrest. There are almost nil chances of the revival. The petitioner has two sons one of them being a minor and a mother-in-law to look after. Since the petitioner’s husband is in a comatose condition, he is unable to use his intellect, converse and sign various documents. Accordingly, the petitioner is required to act as his guardian so as to safeguard the business and other interests of the husband and also to look after her family. Banks refused the petitioner to put her signature in place of her husband, rather the petitioner was advised to approach the competent court to get herself appointed as the guardian. Hence, she directly approached the High court invoking a writ petition under article 226 for guardianship rights over her husband.[vii]

6. Judgment Bench cited the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India [viii], and stated that patients in a coma have a complete failure or the arousal system with no spontaneous eye-opening and are unable to be awakened by application of vigorous sensory stimulation.

From the Aruna Shanbaug case, court had observed that the idea behind the doctrine of “parens patriae” is that if a citizen is in need of someone who can act as a parent, who can make decisions and take some other action, sometimes the State is best qualified to take on this role. Hence the decision was in favour of the petitioner and she could be the guardian of her husband. However, it is also essential that there should be some kind of monitoring of the functioning of the petitioner as guardian to ensure that guardianship is being used for the benefit of the person who is in a vegetative state.

Therefore, Member Secretary of Maharashtra State Legal Services Authority either through officials of the said authority or through a legal aid counsel or through a paralegal volunteer shall monitor the functioning of the petitioner as guardian.[ix]

7. Conclusion Both the judgements were powerful ones and gave a wider interpretation to the concept of a next friend/ guardian. For most people with disabilities, lots of love and support are necessary preconditions to live and fully participate in the community, with choices equal to others. Hence it is true in most cases that the appointment of a legal guardian really works, provided the guardian works in the best interest of the person.

[i]Feba Nisha, Exposition of ‘Next Friend’ in law, https://theapprentice.in/blog/litigation/142/exposition-of-%E2%80%98next friend%E2%80%99-in-law

[ii] Mary v. Leelamma, 2020 SCC Online Ker 2491.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Rajni Hariom Sharma v. Union of India, 2020 SCC OnLine Bom 880.

[vii] Id.

[viii] Aruna Ramchandra Shanbaug v. Union of India 8 , (2011) 4 SCC 454.

[ix] Apoorva Mandhani, Spouses can be appointed as guardians for comatose patients to manage their properties: HC, 16 June, 2020 2:47 pm, https://theprint.in/judiciary/spouses-can-be-appointed-as-guardians-for-comatose-patients-to-manage-their-properties-hc/442543/