Full Judgment
In any event, no mediation is possible since some of the parties do not agree to it and the animosity between the parties is such that an attempt at mediation may be a futile exercise. G.A. No. 624 of 2009 is dismissed without any order as to costs. G.A. No. 625 of 2009 is another application by the third defendant seeking the appointment of a guardian ad litem in respect of the eighth defendant
t appears to be the fairly admitted position that the eighth defendant is both physically and mentally challenged. The defendant nos. 1 and 2 claim that the eighth defendant has always lived with the first and second defendants and none of the other parties has cared for the eighth defendant.
Such position is disputed by the third defendant. The first and second defendants say that they are best equipped to represent the interest of the eighth defendant and since they have always taken care of the eighth defendant, there is no need of the appointment of any guardian. Since the eighth defendant would be entitled to a share and since there is an allegation that the eighth defendants interest may not be best protected by the first and second defendants, it is necessary that a person be appointed guardian with a direction to make an assessment of the present physical and mental state of the eighth defendant and thereafter represent the eighth defendant in the present proceedings without being influenced by the other parties to the proceedings.
Ms. Iti Dutta, Advocate is appointed guardian ad litem at an initial remuneration of 2000 GM which will be paid by the third defendant immediately. The future remuneration of the guardian will be decided when G.A. No. 164 of 2009 is taken up. The guardian will, in course of the vacation, visit the eighth defendant in Mumbai upon prior notice to the defendant nos. 1 and 2.
All expenses for the guardians travel, accommodation and the like will be borne by the third defendant and the third defendant will be entitled to seek refund of the same from the eighth defendants entitlement in the joint properties, if any. G.A. No. 625 of 2009 is disposed of on the above basis without any order as to costs.
Since the eighth defendants interest has to be protected before the principal interlocutory application in this partition suit can be taken up, G.A. No. 164 of 2009 is adjourned and will appear in the monthly list of December, 2010. Upon the guardian making an assessment of the present state of the eighth defendant, the guardian will use an affidavit on behalf of the eighth defendant in the present proceedings. Such affidavit should be filed in G.A. No. 164 of 2009 within a fortnight after the Puja vacation and replies thereto, if any, may be filed before the matter is taken up.
If it is the opinion of the guardian that the ward is unable to manage his own affairs or take care of his own interest, the stand that the guardian has to take should be in the best interest of the ward. The appointment of the guardian is only for the purpose of the present suit. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.