High Court of Kerala
Case Law Search
NANIAMMA KUNJU KUNJAMMA v. EASWARIAMMA SUJATHA DEVI - SA No. 209 of 1994(G)  RD-KL 12868 (12 July 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 209 of 1994(G)
1. NANIAMMA KUNJU KUNJAMMA
1. EASWARIAMMA SUJATHA DEVI
For Petitioner :SRI.V.BHASKARAN PILLAI
For Respondent :SRI.K.GOPALAKRISHNA KURUP
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J............................................ S.A.No. 209 OF 1994 ............................................
DATED THIS THE 12th DAY OF JULY, 2007
O.S.431 of 1989 was filed by second appellant Madhavan Pillai Sivasankara Pillai, as next friend of first plaintiff Naniamma Kunju Kunjamma, seeking a decree to set aside two settlement deeds and a sale deed executed by Naniamma Kunju Kunjamma contending that Naniamma Kunju Kunjamma is mentally ill and was not capable of looking after her affairs and second appellant being the son is entitled to institute the suit as her next friend.
2. Learned Sub Judge conducted a preliminary enquiry . Finding that first plaintiff Naniamma Kunju Kunjamma is not suffering from any mental illness to institute the suit and was capable of looking after her affairs, dismissed the suit as far as it relates to first plaintiff, holding that suit by the next friend is not maintainable. Second appellant filed CRP 2437 of 1990 before this court, challenging the dismissal of the suit. CRP was dismissed holding that second appellant has the remedy of filing an appeal. It was thereafter A.S.20 of 1991 was filed before District Court challenging the dismissal of the suit. That appeal SA 209/1994 2 was also preferred by second appellant son, as next friend of the mother, though it was shown as appellant represented by next friend. During the pendency of the appeal Naniamma Kunju Kunjamma died. Thereafter second appellant was impleaded as her legal heir. Learned District Judge confirmed the finding of learned Sub Judge and dismissed the appeal. It is challenged in the second appeal.
3. The second appeal is also filed by the son Sivasankara Pillai, though Naniamma Kunju Kunjamma who died even when the first appeal was pending, was shown as first appellant. During the pendency of this appeal, Sivasankara Pillai also died and his legal heirs were impleaded as additional appellants 3 to
7. The challenge in the second appeal is against the dismissal of the suit holding that the original first plaintiff is competent to sue.
4. In the nature of the contentions raised and the subsequent developments no substantial question of law is involved in the appeal. Suit was dismissed holding that Naniamma Kunju Kunjamma was competent to sue and so suit filed by the next friend is not maintainable. The suit was not filed by second plaintiff son. The suit was filed by the mother SA 209/1994 3 allegedly through the son as next friend, contending that mother is not competent to institute the suit. Trial court found that the mother is competent to institute the suit and therefore suit as framed is not maintainable. First appellate court confirmed that finding. By that time the original plaintiff died. Therefore competency of the mother to institute the suit is not very relevant now. On her death her rights if any over the plaint schedule property will devolve on the son and if so the son is competent to raise the claim as the legal heir of the mother in an independent suit. On the death of the son Sivasankara Pillai, his legal heirs can raise the claim in an independent suit. In such circumstances as no substantial question of law is involved, the appeal is dismissed.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
Double Click on any word for its dictionary meaning or to get reference material on it.