Mrs. Fatima Abdul Rehman Omer vs Mrs. Salam Moin Zafar And Ors.
2004 Latest Caselaw 227 Bom

ORDER

A.M. Khanwilkar, J.

1. By this notice of motion, the defendants pray that the suit as filed by the next friend on behalf of the plaintiff Mrs. Fatima Abdul Rehman Omer, be dismissed on the ground that the next friend Ashfaque Abdul Rehman Omer is incompetent to pursue the suit on account of the fact that he is staying outside India and also because he has adverse interest to that of the plaintiff.

2. The present suit has been filed through the next friend Ashfaque Abdul Rehman Omer on the assertion that Mrs. Fatima Abdul Rehman Omer Plaintiff, is of unsound mind being incapable by reason of mental infirmity, due to her old age, of protecting her interest when suing or being sued.

3. I shall first deal with the argument regarding the incompetency of Ashfaque Abdul Rehman Omer to pursue the suit as a next friend of plaintiff on account of the fact that he is resident of USA and staying outside India, Counsel for the defendants has placed reliance on the provisions of Order 32, Rule 4 r/w. Rule 9 of CPC. to contend that only persons who are residents of India are qualified to prosecute the matters as next friend on behalf of the minor or person of unsound mind in any proceedings before the Courts in India. This submission is countered by Mr. Tulzapurkar appearing on behalf of the next friend of the plaintiff.

4. It needs to be clarified that the next friend Ashfaque Abdul Rehman Omer, is none else but the real son of plaintiff Mrs. Fatima Abdul Rehman Omer. It is not in dispute that when the suit was instituted, the next friend was staying outside India and, even now he continues to stay outside India. In spite of this, in the first place it is contended that, Rule 9 r/w. 4 of Order 32 of CPC will be of no avail. It is argued that there is specific provision in the High Court Original side Rules in the shape of Chapter XXIV in particular Rules 355 and 364 which would govern the appointment of persons to institute or prosecute the claims of minors and persons of unsound mind such as in the present case; and since there is express provision in that behalf, the provisions of Rule 4 r/w. 9 of Order 32 of CPC will be inapplicable and cannot be the basis to remove the next friend. Reliance is placed on the decision of the Division Bench of this Court in the case of Iridium India Telecom Ltd., Bombay v. Motorola Inc., reported in 2004 (1) Mah LJ 532 to buttress the argument that the provisions of the High Court, Original Side rules ought to prevail. It is next contended that assuming Rule 9 of Order 32 can be invoked, even so it was not obligatory on the Court to remove the next friend in the fact situation of the present case; as there was ample discretion to the Court to permit the next friend to continue the suit. Reliance is placed on the Division Bench decision reported in AIR 1950 Pepsu 28 in the case of Amar Singh v. Kishan Singh to support this contention. It is next contended that assuming that the above arguments are not sustained, then the next friend was challenging the validity of Rule 9 of Order 32 of CPC. It is submitted that with the passage of time there has been perceptible change in the socio-economic condition and moreso of the availability of various facilities including the improvised communication technology, even the person staying abroad would be able to effectively pursue the claim on behalf of the plaintiff. So understood, the provision such as Rule 9 of Order 32 will have to be held as unreasonable and ultra vires. According to the learned counsel, the Apex Court has recognized the principle that a provision which was valid at a given point of time may become unreasonable with the passage of time. Reliance is placed on the decision , Malpe Vishwanath Acharya v. State of Maharashtra to buttress the above submission.

5. Having considered the rival submissions, I would answer the above plea in favour of the next friend. To my mind, the fact that the next friend is resident outside India or has ceased to be resident of India by itself cannot be the basis for removing him as a next friend or to hold that he was incompetent to institute the suit on behalf of the plaintiff as filed. I find substance in the argument canvassed on behalf of next friend that Rule 4 of Order 32 by itself makes no such distinction or disqualification. Besides, there is express provision in the shape of Rule 355 r/w. Rule 364 of the Bombay High Court (Original Side) Rules, which deal with the circumstances in which even a foreigner can be appointed to pursue the proceedings on behalf of minors and of persons of unsound mind. To my mind, on plain language of Rule 355, it is rightly submitted that, the requirements stated therein will have to be complied only if a person to be so appointed was not related to the minor or the person of unsound mind. In the present case, the next friend is directly related, being son of the plaintiff. Rule 355 of the High Court Rules expressly permit a foreigner for being appointed as guardian of person or property of minor. In that sense, merely because next friend is a foreigner, he will not be incompetent to institute the suit on behalf of plaintiff. This view is also re-inforced by the plain language of Rule 4 of Order 32. Because, Rule 4 of Order 32 of CPC postulates the qualification for appointment of the next friend. It postulates he (next friend) has attained majority, provided that he has no adverse interest to that of the minor or the plaintiff and that he is not, a defendant in the suit so filed. No more and no less, That requirement is complied by the next friend in the present case. The question regarding the adverse interest to that of plaintiff will be dealt with a little later. Suffice it to observe that Rule 4, r/w. Rule 9 of Order 32 of CPC will be of no avail to non suit the next friend in the fact situation of the present case. Moreso, it is rightly contended by the Counsel for the next friend that the provisions of the Bombay High Court Original Side Rules would prevail. For which reason. the next friend was eligible to institute the suit and also prosecute the same.

6. Assuming that the provisions of Rule 9 of Order 32 of CPC could be invoked on the ground that the next friend was resident, outside India, even then it would make no difference in the present case. This is so because, I find force in the argument canvassed on behalf of the next friend that even if the next friend satisfied the restrictions stated in Rule 9, even in that situation it was not obligatory on the Court to remove him. But the Court would still have discretion to permit the next friend to continue the proceedings. Reliance was rightly placed on the decision in Amarsingh's case (AIR 1950 Pepsu 28) (supra). In para 10 of the said decision the Division Bench of Pepsu High Court, after referring to Rule 9 went on to observe that the said Rule 9 is a permissible provision. Indeed, counsel for the defendants placed reliance on the decision of the Madras High Court in the case of Doraswami Pillai v. Thungasami Pillai reported in (1904) ILR 27 Madras 377 wherein, it was not that when a Court is satisfied that the next friend was not performing his duty to pursue the suit, it was obligatory on the Court to remove such a next, friend. That view has been taken in the fact situation of that case. Indisputably, there is perceptible difference between the next friend not performing his duty or having interest adverse to that of the minor than being resident outside India. In the later case the Court can put the next friend to certain terms and if necessary strict terms. As mentioned earlier following the view taken by the Pepsu High Court referred to above, I am inclined to accept the submission canvassed on behalf of the next friend that the Court has discretion to continue the next friend even if it is found that he had satisfied the restriction stated in Rule 9. In the present case, it is seen from the record that the next friend has not only instituted the suit but also appeared on every effective date of hearing of the suit or any interim applications filed therein. Even today he is present in the Court. Moreover, as is rightly contended, in the changed scenario the global distances has shrinked and has become irrelevant; particularly in the context of the present communication system which will make it possible for the next friend to effectively prosecute the Court matter. In this view of the matter, I find no reason to hold that the next friend was ineligible to institute the suit as contended or to remove him or to appoint some other person in his place on this singular ground i.e. being resident outside India. In view of the above, it is not necessary for me to examine the wider question raised regarding the validity of Rule 9 of Order 32 of CPC.

7. That takes me to the next contention canvassed on behalf of the defendants that the next friend was incompetent to pursue the present suit as he had adverse interest to that of the plaintiff. To buttress this argument reliance was placed on averments made in paragraph 5-b, 5-c, 5-h(iii) and 5-h(iv) of the affidavit of the defendant in support of this notice of motion. The same reads thus :--

"5-b : It was the desire of the plaintiff's late husband that his share in the property being 312 and 313, M. G. Road, Pune after his death be equally divided amongst his wife, 2 daughters and one son. But the said alleged next friend of the plaintiff Mr. Ashfaque took 7/16th share as per the Muslim Shariat Law, when the property being 312, M. G. Road, the father's share was sold for 11 lakhs. Mr. Ashfaque took more than 50% of the amount received from the share of his father. In the property being 313, M. G. Road, Pune the husband of the plaintiff and father of defendant Nos. 1 and 2 owned three shops and share in two flats along with his brothers and sisters. Out of which Mr. Ashfaque in collusion with his own constituted attorney and the ex-constituted attorney of the plaintiff and defendant Nos. 1 and 2 entered into a Leave and License Agreement with one Mr. Abdul Karim Mohammed of M. K. Enterprises and further to regularize the license the said Ashfaque in collusion with the said ex-constituted attorney of the plaintiff and defendant Nos. 1 and 2 entered into an alleged Deed to partnership where the said Abdul Karim Mohammed had 90% share and his Aunts Ms. Naseem Adam Omer and Ms. Hanifa Adam Omer who were co-sharers had 5% share and Mr. Ashfaque and the plaintiff and the defendant Nos. 1 and 2 had 5% share. The Partnership Deed was executed by the ex-constituted attorney on behalf of the plaintiff and the defendant Nos. 1 and 2.

5-c : As per the wishes of the late Abdul Rehman Adam Omer two shops admeasuring 100 sq. fts. each in the rear side of the ground floor of 313 M. G. Road, Pune were to be given to the defendant Nos. 1 and 2 herein and Mr. Ashfaque Abdul Omer the alleged next friend of the plaintiff being the son was to be excluded from the property. However, the said Ashfaque Abdul Omer connived with his aunts Ms. Naseem Adam Omer and Ms. Hanifa Adam Omer and handed over possession of the said two shops to his aunts who stored their belongings and furniture in the said shops without paying any rent for the same whereas the said Naseem and Hanifa rented their shares of the two shops on the ground floor for Rs. 7000/- each earning a rent of Rs. 1.68 lacs approximately per year resulting to the loss to the family of approximately Rs. 8 lacs for five years.

5-h(iii) : Flat No. L on 4th floor was sold to Bharat Petroleum by a Sale deed dated 27th September, 2001 for Rs. 1,30,00,000/-. The cheque for the Plaintiffs share of Rs. 32.5 lacs was collected by Mr. Ashfaque from the duly constituted attorney of the Plaintiff Ms. Yasmin Dastur and was deposited by the said Ashfaque in an account of Union Bank of India, Peddar Road Branch which was opened by the said Ashfaque with the plaintiff and himself being the joint holders in August, 2001. The cheque of Rs. 32.5 lacs collected by Ashfaque was deposited in the said new account opened (sic) the fact that the plaintiff already had an account in her name with Union Bank of India, Peddar Road Branch where she had been regularly depositing monies received by her and the same has also been declared in her Income tax returns. Thereafter, the said Ashfaque transferred a sum of Rs. 28.5 lacs from the said account to his personal account in Pune and a sum of Rs. 4 lacs were paid to the servant named Ms. Yogita Gangurde at the instance of Ashfaque. 5-h(iv) : Flat No. M on the 4th floor was sold to Hindustan Composites by a sale deed dated 15th January, 2002 for Rs. 1,85,00,000/- from which the plaintiffs share was Rs. 37.5 lacs which cheque was collected by Ashfaque and deposited by him in the new account opened by him with Union Bank of India, Peddar Road Branch jointly with his mother. The intentions of Ashfaque was to transfer Rs. 34.5 lacs from the said account to his personal account in Pune for which he drew self-cheque. However, when the plaintiff learnt about the same the plaintiff gave stop payment instructions to the Bank and thereafter the said amount was transferred by the plaintiff to her original (old) account with Union Bank of India, Peddar Road Branch and thereafter the mother having come to know about the fraudulent intentions of her son after paying all dues gifted the amount to her two daughters in equal proportion."

8. These assertions have been countered by the next friend by filing reply affidavit dated 31st October, 2002. Paras 19, 20, 27 and 28 respectively deal with the aforesaid assertions and the same reads thus :--

"19 : With reference to paragraph 5(b) of the said Affidavit. It is denied that the Plaintiff's later husband desired that his share in the property being 312/313 M.G. Road, Pune, after his death be equally divided among his wife, two daughters and one son as alleged. I say that my father who was a practising Advocate would surely have made a Will to that effect were if his desire. I say that as per the law applicable viz. Muslim Shariat Law I was entitled to 7/16 share in the said property. I say that it has been the practice and tradition over generations of our family to follow Shariat Law. It is denied that I have taken more than the share I was entitled to in the said property as alleged or at all. It is defined that I took any amount more than to which I was entitled from share of my father as alleged or at all. It is denied that in respect of property being 312/313, M. G. Road, Pune or anything else, I have colluded with the Constituted Attorney of the plaintiff and defendant Nos. 1 and 2 as falsely alleged or at all. I say that leave and licence agreement with Mr. Abdul K. Mohammed of M. K. Enterprises was entitled into with the consent and knowledge of the Defendants. The said leave and licence agreement is executed by the Constituted Attorney of the plaintiff and defendant Nos. 1 and 2. It is denied that I have colluded with the ex-constituted Attorney of the plaintiff and defendants as falsely alleged or at all. Admittedly, the said partnership deed was signed and executed by the then Constituted Attorney of the plaintiff and defendant Nos. 1 and 2. The fact that the defendants have taken no legal proceedings amply demonstrates that these allegations are being made mala fide for the purpose of this Notice of Motion. Furthermore, there are no particulars furnished of the so-called collusion.

20 : With reference to paragraph 5(C) of the said Affidavit, it is denied that as per the wishes of late Abdul Rehman Omer, two shops admeasuring 100 sq. ft. each rear side of 313, M.G. Road, Pune were to be given to defendant Nos. 1 and 2 Pune as falsely alleged or I was to be excluded from the said property as falsely alleged therein or at all, the said allegations are contrary to the allegations made by the Defendants in paragraph 5(b) of the Affidavit. It is denied that, I have connived with my aunts Naseem Omer or Hanifa Omer or handed over possession of the said two shops to my aunts as falsely and dishonestly alleged therein or at all. It is pertinent to note that on the one hand it is alleged by the defendants that I only come once or twice to India and is a permanent resident or USA and on the other hand it is alleged that I have connived with all other persons and have taken over properties or handed over possession to other persons the said allegations are false and dishonest to the knowledge of the defendants. I am not aware and hence deny that the said Naseem Omer or Hanifa Omer have rented their shares of the two shops for Rs. 7000/- each or for any other amount as falsely alleged. It is denied that I have done any act which has resulted in loss to the family as falsely alleged or at all.

27 : With reference to paragraph 5(h)(iii) of the said affidavit, I say and submit that out of the said 32.5 lacs a sum of Rs, 4 lacs was paid to the servant who has been looking after my mother for around 20 years the amount was paid as an inducement and reward to her and for the purpose of purchase of a property at Borivali. This was done with the consent of the defendants and in fact it was defendant No. 2 who had initiated the discussion on the subject. A sum of Rs. 22.25 lacs was invested in Mutual Fund and the balance amount was spent by me for the welfare and interest of the plaintiff to the knowledge of the defendants. It is denied that I have misused or mis-appropriated any amount of the plaintiff as falsely alleged the said Cheque was deposited in a separate account to prevent illegal withdrawal of monies by the defendants.

28 : With reference to paragraph 5(h)(iv) of the said affidavit, I say and submit that all the amounts lying in the account of the plaintiff has been illegally and unlawfully withdrawn and removed by the Defendants. Till date the statement of Bank Account and the balance lying in the Accounts of the plaintiff is not given by the defendants. It was only with the intention to prevent the illegal withdrawal of the monies by the defendants. I wanted to invest the said amount in Mutual Funds and National Highway Authorities of India Bonds in the name of the plaintiff. However, before the said Cheques could be encashed, stop-payment instructions was given by the defendants. I crave leave to refer to and rely upon the applications made for investing the said amounts in National Highway Authorities of India Bonds and DSP Merill Lynch Mutual Funds and Cheques drawn in their favour when produced. It is pertinent to note that in spite of specific allegations made by me in the plaint that the defendants have withdrawn virtually entire money belonging to the plaintiff, the defendants have chosen not to give details about the monies lying in the bank account of the plaintiff nor have denied that they have not withdrawn the said amount. It is denied that I have fraudulently withdrawn any amount as falsely alleged. It is significant to note that the defendants have continued their conduct of usurping the monies and properties of the plaintiff. It is denied that the plaintiff has gifted the amounts to the defendant Nos. 1 and 2 in equal share or any other share as falsely and dishonestly alleged therein or at all. I say that this appears to be one more gift procured by the defendants due to the plaintiffs unsound mind."

9. Besides the affidavit of the next friend, affidavit of the concerned investment consultant Mr. Nikhil Jaysukhlal Mehta dated 30th June, 2003 is filed to support the statement made in the affidavit of the next friend regarding the matter in which the amount available at the disposal of the plaintiff was to be invested. The said affidavit reads thus:--

"(i) : I am a Director of Basic Financial Pvt. Ltd., providing Financial services. I know Ashfaque Abdur Rehman Omer, the next friend of the plaintiff hereinabove as in the past I have advised him on investments and I have acted as broker for him as well as his mother Fatima. I say that on 3-10-2001 the said Ashfaque Omer approached me and consulted me for making investment of monies of his mother. The said Ashfaque Omer informed me that the money belonged to his mother Fatima Omer and was required to be invested in her name with different nominees (being her children) for long terms which had high security. I accordingly advised him to invest in Highway Authorities Bond to avoid capital gain tax for part of it as well as some mutual funds. Accordingly forms were filled by me which were already signed by Fatima, wherein Fatima Omer was penned as the Applicant and Aisha Vergese was made a nominee in one form and in another form Salma Moin Zafar was made a nominee. For this purpose two cheques were written out in favour of Highway Authority Bond by the said Ashfaque Omer from HSBC account. Further, cashiers cheques requested were made out by me from Union Bank Account. These cashier request were made for various cashiers cheques which were to be invested in various Mutual Funds in which Fatima was to be the first named holder and Ashfaque and her daughters Aisha and Salma were to be the various nominees. I also filled out the cheques for paying for the cashiers cheques. I do not recollect the amounts to be invested but I do recall that checking the Highways Authority Bonds and the Mutual funds investment together, Ashfaque or her daughters were to be the nominee to the extent of approximately 50% of the amount whereas Aisha and Salma were to be nominees to the extent of approximately 25% each, thereafter Ashfaque left my office to get the cashiers cheques and bring them to my office after sometime. However, Ashfaque returned to my office and told me he could not gel the cashiers cheques due to a dispute in the family. He also asked me not to make the Highway Authority Bonds investments. Since my clerk Rajkumar Singh had already left my office, I had to telephonically contact him and instruct him not to deposit the said forms and to bring back the same. I accordingly instructed my clerk Rajkumar Singh not to deposit the forms and to return to the office. Thereafter, I handed over the said forms and the cheques back to Ashfaque Omer."

10. On fair reading of the aforesaid pleadings, to my mind, the objection is more in the nature of questioning the intention or conduct of the next friend. At best allegation is made that the next friend is bent upon in taking away the property unto himself to the exclusion of the defendants. But, there is nothing in any of the assertions made in the affidavit in support to show that the next friend was acting adverse to the interest of the plaintiff as such: Nor it is possible to say that he has interest adverse to that of the plaintiff in the context of the relief claimed in the suit. Undoubtedly, there is perceptible difference between "interested party" and that of "person having interest adverse to that of plaintiff. The later is disqualified and the former is not. In the case of later, his interest is opposed to or opposite to the interest of the plaintiff. In other words, it has to be adversarial interest replete with conflict, contrary or hostility. More particularly with reference to the reliefs claimed in the action as filed on behalf of the plaintiff. This is clearly lacking in the present case. Be that as it may, the next friend by filing his affidavit, has not only countered the allegations made against him but has also alleged that, in the past steps were taken to invest the funds available at the disposal of the plaintiff in consultation with the defendants. This assertion is substantiated by the supporting affidavit of Nikhil J. Mehta. No rejoinder has been filed by the defendants to controvert that position. In my opinion, taking overall view of the matter, there is nothing on record to show that the next friend has either acted against the interest of the plaintiff or has interest adverse to that of the plaintiff qua the relief claimed in the suit as such. The allegations made against the next friend will be adjudicated at the trial, if found necessary. At this stage, it is not possible to take the view that the next friend has any interest adverse to that of the plaintiff qua the relief in the suit.

11. In the circumstances I find no substance in the notice of motion challenging the status of the next friend to institute or prosecute the suit on behalf of the plaintiff.

12. Accordingly this Notice of Motion is dismissed with costs.

13. At this stage learned counsel for the defendants prays that the hearing of the other applications and the suit be deferred for some time to enable the defendants to take the above issue in appeal. I think that the request is reasonable. Therefore, four weeks time as prayed for is granted.

14. All concerned to act on the copy of this order duly authenticated by the Associate of this Court.