Mariam v. Varghese — 1965 DIGILAW 18 (KER)

Judgment :- 1. The suit which has given rise to this appeal was for cancellation of three sale deeds, Exts. XVI, V and X. The suit was dismissed by the court below and the plaintiffs have preferred this appeal. 2. The first plaintiff is the wife of the second plaintiff who was alleged to be insane on the date of suit. The first plaintiff filed the suit as the next friend of the second plaintiff. The sale deeds, Exts. V and XVI, were executed by the second plaintiff. Ext. XVI dated 8-8-1117 was in favour of the first defendant and the property conveyed was item 1 in the plaint schedule, 91 cents in extent, which was sold for Rs. 588/-. Ext. V dated 1-7-1118 was in favour of the third defendant and it related to item 2, four cents of land and a small building, sold for Rs. 780/. The first defendant sold item No.1 to the second defendant under Ext. X dated 24-8-1118. Exts. XVI and V were sought to be set aside on the ground that the second plaintiff was a person of unsound mind on the dates of execution of the two sale deeds. Ext. X was sought to be set aside as Ext. XVI was invalid. It was also alleged in the plaint that the two sale deeds, Exts. XVI and V, were for inadequate consideration and that the same was an indication that the second plaintiff was of unsound mind at the relevant time. The second plaintiff had attacks of insanity and he was detained in the Mental Hospital at Oolampara, Trivandrum, on six occasions, five of which were before the execution of the two sale deeds. He was treated for insanity at the mental hospital from 9-8-1103 to 22-8-1104, 2-2-1106, to 30-2-1106, 27-12-1110 to 26-8-1111, 6-4-1112 to 32-11-1112,18-10-1115 to 4-5-1117 and 12-8-1120 to 28-11-1122. Plaintiffs claimed recovery of possession of the two items with mesne profits and also the value of a building in item No.1 which was alleged to have been demolished by the vendee. 3. Defendants 1 to 3 contested the suit. Plaintiffs claimed recovery of possession of the two items with mesne profits and also the value of a building in item No.1 which was alleged to have been demolished by the vendee. 3. Defendants 1 to 3 contested the suit. Their main contentions were that the two sale deeds were executed during lucid intervals when the second plaintiff was capable of entering into contracts and that the first plaintiff was not competent to institute the suit on behalf of the second plaintiff as he was of sound mind on the date of the plaint. The first defendant died during the pendency the suit and as he had alienated item No.1 to the second defendant, nobody was impleaded as his legal representative. The third defendant also died and his legal representatives have been brought in as additional defendants 4 to 10. 4. The suit was decreed in 1955 setting aside the sale deeds and allowing the first plaintiff to recover possession of the properties with mesne profits. Defendant 2 as well as defendants 4 to 10 preferred appeals to the High Court. The appeals were allowed and the suit was remanded to the trial court for fresh decision. Witnesses were examined after the remand and the court dismissed the suit entering findings adverse to the plaintiffs on the two main contentions raised by the defendants. 5. The question for decision is whether the sale deeds are liable to be set aside. 6. It is admitted by the contesting defendants that the second plaintiff had attacks of insanity on five occasions before the execution of the sale deeds. He was discharged from the mental hospital on 4-5-1117 and was readmitted on 12-8-1120. It was during this interval that the two sale deeds were executed. It is the common case of both sides that the case should be governed by S.12 of the Indian Contract Act which reads as follows: "12. A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind." 7. Counsel for the appellants brought to our notice the decisions reported in ILR. 40 Mad. 660, AIR. 1940 Mad. 73, AIR. 1941 Nag. 251, AIR. 1956 Cal. 213 & AIR. 1958 A.P. 22 & a few English decisions bearing on the subject. The principle laid down in these cases may be summarised thus: When a transaction is impeached on the ground that the executant was a man of unsound mind, the initial onus lies on the person who sets up the plea that the executant was of unsound mind. If there is sufficient evidence to prove that the person has been adjudged under the Lunacy Act to have been a lunatic or if there is other sufficient evidence to show that a person had at a certain stage been of unsound mind, the burden shifts to the person who alleges his sanity. The mere proof of a solitary fact that on the day when the impeached conveyance was being executed the executant did not show any signs of insanity would not be sufficient to demonstrate that the person had been acting as a normal man during a lucid interval. The evidence in the case has to be considered in the light of these principles. 8. The first period of insanity was between 9-8-1103 and 22-2-1104 There is no need to refer to the alienations made by him before this period. After he was discharged from the mental hospital on that occasion, he filed a suit as O.S. No. 925 of 1104 of the Perumbavour Munsiff's Court. The suit was compromised and a decree was passed on 12-6-1105. Ext. III is copy of the decree. Another transaction was the execution of a usufructuary mortgage (Ext. XXVI) on 11-11-1105. Reproduced the deed for registration and admitted execution thereof before the Sub-Registrar. After the second attack of insanity, he was discharged from the hospital on 30-2-1106. Thereafter he executed a sale deed (Ext. XX) on 13-12-1106. This document was also produced for registration and admitted by him. Again on 5-10-1107 he executed a hypothecation bond (Ext. XXVI) on 11-11-1105. Reproduced the deed for registration and admitted execution thereof before the Sub-Registrar. After the second attack of insanity, he was discharged from the hospital on 30-2-1106. Thereafter he executed a sale deed (Ext. XX) on 13-12-1106. This document was also produced for registration and admitted by him. Again on 5-10-1107 he executed a hypothecation bond (Ext. XI) along with his mother in respect of item No. 1. These transactions show that notwithstanding his mental illness, he was looking after his affairs when he was discharged from the hospital and that other people were dealing with him in respect of his properties. 9. The documents impeached in this case were executed after his fifth period of detention in the mental hospital which ended on 4-5-1117. Before the first defendant took Ext. XVI, he obtained an assignment of the usufructuary mortgage under Ext. XXVI by taking an assignment deed Ext. XIV. The mortgagees obtained a registered receipt (Ext. IV) discharging the hypothecation bond they had executed in respect of the usufructuary mortgage right. The mortgagees also took another usufructuary mortgage (Ext. XXV) on the same day in respect of another property. The second plaintiff is an attestor to Exts. XXVI, XIV and IV all of which were executed on 24-11-1117. It was after these transactions that the first defendant obtained Ext. XVI. There is evidence to show that in addition to attesting these documents the second plaintiff took an active part in these transactions to enable him to execute Ext. XVI. Dw.14, a brother of the mortgagee, deposed that the second plaintiff approached him to persuade the mortgagees to assign the mortgage right which vested in Mariam and her children at that time. Mariam and her children took Ext. XXV mortgage from Dw.11 and he deposed that it was the second plaintiff, who approached him in connection with the mortgage (Ext. XXV). There was an earlier hypothecation bond executed by the second plaintiff and his mother charging item No. 1. The first defendant obtained a release under Ext. XII and the second plaintiff is an attestor to that deed as well. Reference has been made to these documents to show that the second plaintiff took a very active part in completing the various transactions necessary to enable him to execute Ext. XVI. Nothing has been brought out in the testimony of Dws.11 and 14 to disbelieve them. 10. Ext. Reference has been made to these documents to show that the second plaintiff took a very active part in completing the various transactions necessary to enable him to execute Ext. XVI. Nothing has been brought out in the testimony of Dws.11 and 14 to disbelieve them. 10. Ext. V, the sale deed in respect of item No. 2, was executed on 1-7-1118. It was in respect of the property in which the second plaintiff was residing with his wife and children. It was a small plot, four cents in extent. On 8-8-1118 the second plaintiff purchased a more extensive property at Karukutty from his wife's uncle under Ext. I. Plaintiffs 1 and 2 and their children have been residing there ever since. 11. The question for decision is whether Exts. XVI and V were executed during a lucid interval when the second plaintiff could understand the real nature of the transactions. The plaintiffs examined the medical officer (Pw. 5) under whose treatment the second plaintiff was at Oolampara. He deposed: "Thommi Thomas (second plaintiff) had recurrent mania. Once he is cured he will have lucid interval. During lucid intervals he can attend to his ordinary avocation in life". This is the most reliable piece of oral evidence about his mental condition. Much was made of a sentence in the deposition of Pw. 5, "Thommi Thomas was not completely cured when he was discharged on each occasion. When he was free from mental symptoms he was discharged." Pw. 5 explained what he meant by this statement thus: "When I said he was not completely cured I meant that recurring mania would recur. Till it recurred he would be free from mental symptoms". 12. Counsel for the appellants had an argument that the word 'avocation' means a minor occupation, distraction or less important work. This is correct in the sense in which the word 'avocation' was used in the 18th century. The Oxford Dictionary states this as the meaning of the word in early times, but it also refers to later usage (though incorrect etymologically). It is stated: "But as, in many cases, the business which called away was one of equal or greater importance, the new meaning was improperly foisted upon the word: Ordinary employment, usual occupation, vocation, calling". Illustrations of this usage are also given. It is in this sense that Pw. It is stated: "But as, in many cases, the business which called away was one of equal or greater importance, the new meaning was improperly foisted upon the word: Ordinary employment, usual occupation, vocation, calling". Illustrations of this usage are also given. It is in this sense that Pw. 5 has used the expression "ordinary avocation in life." 13. It is thus clear from the evidence of Pw. 5 that it was a type of insanity which occurred at intervals but left the person completely free to carry on his normal avocation during the periods between attacks. The oral evidence adduced by the plaintiffs on this point is vague, there being no evidence about his mental condition at the time of execution of the two sale deeds. 14. Plaintiffs relied on inadequacy of consideration as a reason for holding that the second plaintiff could not have been of sound mind when he executed the two sale deeds. Ext. XVI was for a consideration of Rs. 588/-. It is in evidence that it was not at all an attractive plot. There was no accessibility to the road and it was about fifty feet below the level of the neighbouring property. It is adjacent to a cemetry and the isolation ward of the Government Hospital at Alwaye. The appellants relied on the fact that the first defendant sold that plot for Rs. 1,250/- under Ext. X dated 24-8-1118. This was urged as a reason for holding that the consideration was totally inadequate. We do not know the circumstances under which Ext. X was executed. What the plaintiffs should have done was to adduce evidence about the value of neighbouring lands of the same type at the time of execution of Ext. XVI. We may also add that there is no case of fraud or misrepresentation practised on the second plaintiff. In the case of item No. 2 also there is no reliable evidence to show the value of neighbouring properties. No document has been filed on this point, and in the absence of the same we are not inclined to place any reliance on the oral evidence about the value of land in that locality. The price of land throughout the State has been on the increase since the second World War and the present prices are no indication of the prices prevailing about 22 years ago. The sale proceeds under Ext. The price of land throughout the State has been on the increase since the second World War and the present prices are no indication of the prices prevailing about 22 years ago. The sale proceeds under Ext. V appear to have been applied for the purchase of a more extensive plot at Karukutty where the second plaintiff's wife's people were residing. It seems to us that the second plaintiff was anxious to provide a place for his wife and children in a locality where there were other people interested in them. The person who sold the land to the second plaintiff was his wife's uncle so that it appears that the transaction was put through with the approval of his wife's relations also. 15. Thus the evidence supports the defence case that the two sale deeds were executed during the lucid period and that the same cannot be set aside. It follows that Ext. X also must be upheld. 16. There remains the further question whether the second plaintiff was of unsound mind so as to enable the first plaintiff to institute this suit as his next friend. There is practically no evidence to show that he was of unsound mind at the time of institution of the suit. On the other hand the defendants have adduced some evidence to show that he was actively prosecuting this suit. The first plaintiff deposed as P. W. 4 as follows: She was asked whether she could produce the second plaintiff before court. Then she said that he was not at home for one week and that she did not know his whereabouts. P.W. 2 admitted that the second plaintiff had talked to him about the case both before and after it was filed and that the second plaintiff asked him to appear as a witness on his side. P.W. 3 also deposed in a like manner saying that the second plaintiff had approached him about two months before the date of his examination asking him to give evidence. The mortgagee Mariam had been cited as a defence witness but she died before she could give evidence. Her brother, D.W. 14, stated that the second plaintiff approached him with a request that he should persuade Mariam not to appear in court. These are not acts of a man of unsound mind. The mortgagee Mariam had been cited as a defence witness but she died before she could give evidence. Her brother, D.W. 14, stated that the second plaintiff approached him with a request that he should persuade Mariam not to appear in court. These are not acts of a man of unsound mind. These show that the plaintiffs have failed to establish that the second plaintiff was of unsound mind on the date of suit. It follows that the suit filed by the first plaintiff as his next friend is not maintainable. 17. No other point arises in the case. We therefore confirm the decree of the court below and dismiss the appeal with costs. The court-fee payable on the memorandum of appeal will be recovered by the State from the first plaintiff. Dismissed.