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2012 DIGILAW 425 (KER)

Thithumma v. Rukhiya Umma

2012-04-13

K.HARILAL, V.RAMKUMAR

body2012
JUDGMENT : This intra court appeal is preferred against the judgment and decree passed by the learned Single Judge of this Court in A.S.No.175/1995, reversing the judgment and decree passed in O.S.No.34/1982 of the Sub Court, Tirur and dismissing the cross appeal filed by the respondent therein. O.S.No.34/1982 was a suit for partition and also for setting aside a gift deed in favour of the first respondent herein who was the sole contesting 6lh defendant in the original suit. The plaintiff and all defendants in the original suit except the sole contesting 6th defendant are no more. The appellants and all respondents except the 1st respondent are successors in interest of the plaintiff and original defendants 1 to 5. 2. Genealogy, Properties and claims: Mundekattil Abdutty was an illiterate and issue less landlord, who committed suicide at the age of 57 leaving behind his wife Rukkia Umma, two brothers - Kunhimarakkar and Mohammed Musliar and also four sisters by names Ayisumma, Pathunni Umma, Veerayumma and Thithumma. He had large extent of landed property, in excess of ceiling limit under the Kerala Land Act. Abdutty married thrice and divorced twice, but died issue less. This sad plight and tragic end of Abdutty culminated in a long legal battle for three decades between his wife on the one side and siblings and thereafter their successors in interest of second and third generations on the other side for his prime immovable property. The first round of the legal battle started when Abdutty's elder brother-Kunhimarakkar Haji filed O.S.No.34/1982, close on the heels of Abdutty's tragic end, against his siblings and Abdutty's wife Rukkiya Umma who are the legal heirs of Abdutty, for partition and for setting aside the gift deed No.341/1981 dated 11.7.1981 executed by Abdutty in favour of his wife Rukkiya Umma, before his death if it stands in the way of partition. First defendant is the eldest brother and defendants 2 to 5 are sisters. All defendants except Rukkiya Umma fully supported the plaint claim and they also prayed for their shares also. The plaintiff and 1st defendant claimed 6/32 share each and sisters defendant 2 to 5 claimed 12/32 share each in the plaint A, B and C schedule properties. But, the 6th defendant Rukkiya Umma also agreed for sharing all the items in plaint A schedule except 7th and 13th items. The plaintiff and 1st defendant claimed 6/32 share each and sisters defendant 2 to 5 claimed 12/32 share each in the plaint A, B and C schedule properties. But, the 6th defendant Rukkiya Umma also agreed for sharing all the items in plaint A schedule except 7th and 13th items. Rukkiya Umma claimed absolute right and possession over items 7th and 13th of A schedule immovable property by virtue of the gift deed executed by her husband Abdutty in her favour and claimed her respective share in accordance with Mohammedan law in all other properties. A schedule is large extent of immovable properties comprised in items 1 to 15, B schedule is movables in the house and C schedule is Rs.50,000/- allegedly kept in the house at the time when Abdutty died. The suit was decreed partly. Entire items 1 to 15 of A schedule were found partiable, rejecting the claim for absolute right and possession raised by Rukkiya Umma over items 7 and 13. In B schedule, items 1,3,5 6 and 8 were found partiable. The prayer for partition of C schedule amount was rejected. 3. Aggrieved by the judgment and decree passed by the trial court, Rukkiya Umma filed A.S.No. 175/1985 before this Court and the plaintiff and other defendants filed cross objection therein. The learned Single Judge of this Court reversed the judgment of the trial court in respect of item Nos.7 and 13 of A schedule property, found that those properties are not partible, allowed the appeal and dismissed the cross appeal. 4. Pleadings: Plaint averments are as follows: (Parties are referred to as in the original suit). Plaint A, B and C schedule properties were belonged to and possessed by Abdutty, who died intestate. Plaint A schedule properties were owned and possessed by Abdutty by virtue of gift deeds of 1956 and 1960. On 17.1.1982 Abdutty died leaving behind his legal heirs who are the plaintiff and defendants 1 to 6. The properties would devolve upon his surviving legal heirs the plaintiff and the defendants. Item Nos. 7 and 13 are properties laying contiguously and Abdutty and his wife Rukkiya Umma were living in the residential building situated in item No.7. Now Rukkiya Umma is occupying these two items. She is enjoying and possessing as a co-owner and possessing the same for and on behalf of other interested co-owners also. Item Nos. 7 and 13 are properties laying contiguously and Abdutty and his wife Rukkiya Umma were living in the residential building situated in item No.7. Now Rukkiya Umma is occupying these two items. She is enjoying and possessing as a co-owner and possessing the same for and on behalf of other interested co-owners also. The movable properties described in plaint B and C schedule were kept in item No.7 and Rukkiya Umma is keeping custody of the said properties. Abdutty died on 17.1.1982. After the death of Abdutty, his legal heirs gathered in item No.7 in connection with 15th day rituals. On that occasion, they discussed about their claim for partition of Abdutty's property in the presence of mediators. In the course of such mediation talk, Rukkiya Umma revealed that Abdutty has executed a gift deed in respect of item Nos. 7 and 13 in her favour. This revelation was shocking to the other sharers. Deceased Abdutty was a mental patient till his death he was insane, though at times had lucid intervals. He was unable to know about things and circumstances while he was mentally ill and the alleged gift deed is a concocted one, at the instance of Rukkiya Umma and her brother and the same was created by some sort of undue influence and fraud. The gift deed is not a valid one and voidable in law and does not in any way affect the right of other shareholders of deceased Abdutty's properties, as Abdutty was incompetent to contract. Though a registered legal notice was caused to be issued on behalf of the plaintiff to Rukkiya Umma demanding partition, she has not heeded to the same and a reply containing false statement was sent to the plaintiff. Hence, the suit is filed for partition and for setting aside the gift deed said to have been executed in favour of Rukkiya Umma. 5. In the separate written statement filed by the 1st defendant, he supported the averments in the plaint and the claims thereon. In addition to that, he contended that items 1 to 3 in the plaint schedule are the only properties possessed by him on behalf of other shareholders and himself. He also prayed for allotment of his due share in the event of the suit for partition is allowed. 6. In addition to that, he contended that items 1 to 3 in the plaint schedule are the only properties possessed by him on behalf of other shareholders and himself. He also prayed for allotment of his due share in the event of the suit for partition is allowed. 6. Defendants 2 to 5 also filed a joint written statement supporting the claim for partition and stiffly disputed the validity of the gift deed set up by Rukkiya Umma. Besides supporting the plaint allegations, they contended that two items of movables are omitted in the schedule, which according to them were owned by Abdutty and are liable to be partitioned. 7. The 6th defendant-Rukkiya Umma filed a written statement contending as follows: Item Nos.7 and 13 in the plaint A schedule were gifted by Abdutty in favour of his wife Rukkiya Umma, the 6th defendant by virtue of Ext.B1 gift deed on his own accord, thereafter the said gift was accepted by her and the properties are in her exclusive possession and enjoyment. Since the gift was accepted by the donee and mutation was effected, at the time of death, Abdutty had neither right nor possession over the said items. Plaintiff and Defendants 1 to 5 disliked his marriage with Rukkiya Umma; consequently, they were nursing a hostile attitude towards Abdutty and his wife. So Abdutty has executed the gift deed in anticipation of the difficulties that may be caused to the 6lh defendant by defendants 1 to 5 after his death. His intention was to provide facilities to his wife to live without seeking any kind of help of his siblings after his death. Though Abdutty married Rukkiya Umma 12 years ago, they have no children. The allegation that the deceased Abdutty was insane and incompetent to contract till his death as stated in the plaint is strongly denied. Ever since the marriage of the 6th defendant no signs of madness developed in Abdutty. He was always sane and capable of understanding things which he does. Abdutty was fond of hunting and he had a gun for hunting with lawful licence from 1970 onwards, the licence was being renewed in time consecutively till his death and surrendered to the authorities after his death by the 6th defendant. He was always sane and capable of understanding things which he does. Abdutty was fond of hunting and he had a gun for hunting with lawful licence from 1970 onwards, the licence was being renewed in time consecutively till his death and surrendered to the authorities after his death by the 6th defendant. He was facing several cases in connection with excess land which he possessed under the Land Reforms Act and he himself was conducting cases in connection with such proceedings before the Hon'ble High Court and the Tribunal. The allegation that Abdutty was admitted and treated in Mental Hospital, Trichur in the year, 1980 for his mental illness and thereafter discharged from there on partial recovery and never recovered absolutely from his mental illness till his death is emphatically denied. Further the allegation that mental disorder was aggravated in June, 1981 and continued till his death is also denied. After her marriage she never noticed any kind of mental disorder in Abdutty. The final decision of the High Court was passed in November, 1981 and as per that decision he was directed to surrender excess land on or before 25.11.1981. Thereafter he was found disappointed as the verdict was shocking to him. His mental agony caused by losing large extent of property which he has inherited and acquired became intolerable and at last he committed suicide. It is true that he was suffering from some stomach disorder and pain and in that connection he was treated for some days in a hospital at Chundal. He had never been a mental patient till his death. At the time of execution of the gift deed he was mentally conscious and capable of understanding his deeds and acts. Thus item Nos.7 and 13 which were gifted to her by Abdutty absolutely belong to her and these items are not partible. Some of the movables which absolutely belong to her are also included in plaint B schedule item. Item C schedule is only an imaginary item and no amount was kept in the house at the time of his death. Further, the allegation that on 31.1.1982 after the death of Abdutty the legal heirs gathered in item No.7 and discussed the sharing of property at the mediation of Abubacker Haji, Kunjunni and Mohammedunni is denied. Such an incident has never happened. She also prays for her due share in item Nos. Further, the allegation that on 31.1.1982 after the death of Abdutty the legal heirs gathered in item No.7 and discussed the sharing of property at the mediation of Abubacker Haji, Kunjunni and Mohammedunni is denied. Such an incident has never happened. She also prays for her due share in item Nos. 1 to 6, 8 to 12, 14 to 15 of A schedule property. 8. Evidence: Plaintiffs evidence consists of oral evidence of PW 1 to PW4 and documentary evidence Exts.Al to A3. Plaintiff was examined as PW1. PWs 2 and 3 are Mohammodunni and Kunjunni, the mediators, who are said to have intervened in the sharing of property and PW4 is Dr. P.V. Francis who was the Superintendent of Mental Hospital, Trichur. He is said to have treated Abutty in the Mental Hospital, Trichur. 9. Defendants' evidence consists of DW1 to DW3 and Exts.Bl to B17. The 6th defendant/Rukkiya Umma was examined as DW3. The Sub Registrar who registered Ext.Bl gift deed was examined as DW1 and 6th defendant's brother Kunhimohammed was examined as DW2. Ext.Bl is the registered gift deed executed by Abdutty and Bl(a) and Bl (d) are signatures of Abdutty in the registered deed. Ext.B2 to Ext.B6 are proceedings with respect to issuance, renewal and surrendering of the gun licence. Ext.B9 to Ext.B17 are letters sent by Abdutty's counsel at High Court evidencing correspondence in connection with the ceiling cases under the Land Reforms Act, pending before the High Court of Kerala. 10. Ext.C1 commission report was marked as court exhibit. Third party exhibit consists of Ext.X1 inpatient register of Mental Hospital, Trichur for the period 1979 - 80. Ext.X1(a) is an entry in Ext.X1 register respecting admission of Abdutty in the mental hospital. 11. Trial Court Findings: After considering the oral and documentary evidence on record, the trial court decreed the suit on the following findings: The entry borne out by Ext.A1(a) relates to Abdutty, none other than the husband of the 6th defendant, and not a cooked up document at the instance of the plaintiff. The absence of case sheet and sworn statement mentioned in Ext.X1 (a), is of no consequence and it is trivial and insignificant. 12. The burden, to prove that documents evidenced by Ext.B1 was executed free from fraud, undue influence and coercion is on the 6th defendant the donee of the gift. The absence of case sheet and sworn statement mentioned in Ext.X1 (a), is of no consequence and it is trivial and insignificant. 12. The burden, to prove that documents evidenced by Ext.B1 was executed free from fraud, undue influence and coercion is on the 6th defendant the donee of the gift. The execution of Ext.B1 was not free from suspicious and vitiating circumstances and Abdutty was only an instrument in putting signature in Ext.B1 gift deed. At the time of execution of Ext.B1, the donor Abdutty was not competent to contract due to unsoundness of mind and thereby the gift deed is liable to be set aside. On these grounds the suit was decreed finding that items 7 and 13 of A schedule property are partiable. 13. Appellate Court Findings: In appeal, the first appellate court found that the findings and conclusions arrived at by the trial court are far fetched and not supported by pleadings and evidence. The learned Single Judge found that there is nothing in Ext. X1 to show that it relates to Abdutty of the instant case and even assuming that Ext.X1 (a) related to Abdutty, it did not satisfactorily establish the case of the plaintiff that Abdutty was a person of unsound mind. There was no doubt that the gift was accepted and acted upon. The evidence of DW1 is satisfactory and convincing to the effect that the executant was capable of understanding the nature and effect of Ext.B1 and forming a rational judgment upon his interest. Ext.B2 to B16 are sufficient evidence capable of drawing an inference of sound mind. On these findings the learned Single Judge reversed the finding of the trial court that item Nos.7 and 13 of A schedule are partible and found that these items are not partiable and not available for partition since Rukkiya Umma was the absolute owner in possession of the above properties. 14. Submissions at the Bar: We heard the learned counsel for the appellants and the learned counsel for the respondents. The learned counsel for the appellants submits that the learned Single Judge ought to have concurring with the findings of the trial court, found that execution of Ext.B1 gift deed could not have been in a sound disposing state of mind at least from 1971 onwards. The learned counsel for the appellants submits that the learned Single Judge ought to have concurring with the findings of the trial court, found that execution of Ext.B1 gift deed could not have been in a sound disposing state of mind at least from 1971 onwards. The learned Single Judge ought to have found that the plaintiff has discharged the initial burden of proof and the 6th defendant failed to discharge the burden of proof which stood shifted to her. According to the counsel, Ext.X1 is a clinching piece of evidence proving admission of Abdutty in the mental hospital and it is sufficient to draw a reasonable inference that Abdutty was a person of unsound mind. According to the counsel, the learned Single Judge erred in appreciating the evidence of PW4 doctor who gave evidence respecting treatment in the mental hospital. The non-availability of case sheet is of no consequences. The counsel further submits that the learned Single Judge went wrong in appreciating the evidence of PW1 to PW3 in its correct perspective. The learned counsel for the plaintiff cited Krishnan Narayanan v. Kunchali Ummini ( 1949 KLT 171 ) and Subrahmanya Sastry v. Lakshminarasamma (AIR 1958 Andhra Pradesh 22) in support of the above argument. 15. The counsel for the 6th respondent submits that the learned Single Judge rightly reversed the finding of the learned Sub Judge which was found opposed to the evidence on record. According to the counsel, the plaintiff miserably failed to discharge the initial burden to prove that Abdutty was usually of unsound mind and occasionally of sound mind as pleaded in the plaint. Absolutely there is no evidence to prove that Abdutty was a person of sound mind at any point of time. Further submits that evidence of PW 1 to PW4 are totally unbelievable, unreliable and renders themselves mutually destructive. The entries in Ext.Xl(a) are not sufficient to hold that Abdutty shown in Ext.Xl(a) is the very same deceased Abdutty of the instant case. According to the counsel, Exts.B2 to B16 are sufficient evidence to disprove the entire pleadings of the plaintiff and there is no ground to interfere with the findings of the learned Single Judge. 16. The entries in Ext.Xl(a) are not sufficient to hold that Abdutty shown in Ext.Xl(a) is the very same deceased Abdutty of the instant case. According to the counsel, Exts.B2 to B16 are sufficient evidence to disprove the entire pleadings of the plaintiff and there is no ground to interfere with the findings of the learned Single Judge. 16. Appreciation of Facts, Law and Evidence: The relief sought for is partition and separate possession for their respective shares after setting aside Ext.B1 gift deed executed by Abdutty in favour of his wife Rukkiya Umma, if Ext.B11 stands in the way of partition. Being a suit for partition, the broad and prime issue to be considered is whether the disputed properties are partible?. But, here the answer to this question of partibility depends upon the second issue whether Ext.B1 gift deed is liable to be set aside for the reason that the same is vitiated by the alleged unsoundness of mind of Abutty, the donor of the gift at the time of its execution due to undue influence and fraud as alleged by the plaintiff. Thus here the second issue gets precedence over the first issue which stands ancillary to the former. 17. Relevant law: According to the plaintiff and supporting defendants 1 to 5, Abdutty was insane and he was incapable and incompetent to execute ExtBl gift on his own free will. Sections 11 and 12 of the Indian Contract Act is the relevant law applicable to decide this point. Sections 11 and 12 of the Indian Contract Act read as follows: "S.11. Who are competent to contract:-Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject". S.12. What is a sound mind for the purposes of contracting.-- 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." 18. In Sona Bala Bora v. Jyotirindra Bhatacharjee (2005 KHV 872) the Division Bench held that: "It cannot be disputed that a contract of sale like any other contract would be vitiated if the consent of either party is given by a person of unsound mind as provided in S.11 of the Contract Act 1872. Under S.12 of that Act, a person is said to be of sound mind for the purpose of making the 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 of unsound mind is thus not necessarily a lunatic. It is sufficient if the person is incapable of judging the consequences of his acts. Black's Law Dictionary says: "As a ground for voiding or annulling a contract or conveyance, insanity does not mean a total deprivation of reason, but an inability, from defect of perception, memory and judgment, to do the act in question or to understand its nature and consequences." 19. Going by the above sections, it could be seen that sound mind is one of the statutory requirements to enter into a contract and unsoundness of mind is a factor which renders a contact void. "Once a lunatic is not always a lunatic". A person of unsound mind is not necessarily a lunatic. Likewise, a person cannot be branded as insane and incompetent to enter into a contract for ever for the reason that he was once seen insane. A person can be insane at times as well as sane at times. Insanity can come and go intermittently. There can be lucid intervals of sanity in between the periods of insanity. A person can enter into a contract when he is sane in the lucid intervals and such contract is valid. 20. What is the test of unsoundness of mind? A person who is usually of unsound mind can enter into a contract when he is of sound mind and the document which he executes at that time is a valid one. 20. What is the test of unsoundness of mind? A person who is usually of unsound mind can enter into a contract when he is of sound mind and the document which he executes at that time is a valid one. The test of unsoundness of mind is "whether a person is capable of understanding the contract which he makes and forming a rational judgment as to its effect upon his interest." 21. Burden of proof: The specific pleading of the plaintiff is that till his death Abdutty was insane though at times he had lucid intervals. That means he was usually of unsound mind and occasionally of sound mind. Thus the pleading comes under second clause of Section 12 of the Indian Contract Act. 22. In Krishnan Narayanan v. Kunchali Ummini ( 1949 KLT 171 ) relied on by the appellants' counsel the Division Bench held that: "When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will. The burden is cast on the grantee of proving freedom of consent by reason of the fact that he is in a dominant position and has made a bargain. The persons benefited by the transaction have to bear the whose onus of proving that the transaction is good". 23. In Subrahmanya Sastry v. Lakshminarasamma (AIR 1958 Andhra Pradesh 22) also relied on by the appellants' counsel the Division Bench held as follows: "A lunatic is not a person who is continuously in a state of unsoundness of mind and once it has been established that a person is a lunatic, the burden of proof is on the party who alleges that a document he relies on as having been executed by the alleged lunatic was executed by him during a lucid interval". 24. In Mariam v. Varghese ( 1965 KLT 692 ) a Division Bench of this Court following the decisions reported in ILR 40 Mad. 660, AIR 1940 Mad. 73 , AIR 1941 Nag. 251, AIR 1956 Cal. 24. In Mariam v. Varghese ( 1965 KLT 692 ) a Division Bench of this Court following 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 and a few English decisions bearing on the subject, held that: "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". 25. A "person is presumed to be sane and insanity is an exception. So the normal presumption is in favour of sanity. The burden of proof lies on the person who sets up a plea of insanity. But he need not prove that the executant of the document is a lunatic all the time. Once it has been established that a person is usually of unsound mind and occasionally of sound mind, the burden of proof will shift to the party who claims sanity and it is for him to prove that the disputed document was executed during the period of lucid intervals i.e. during the period of sound mind. In short, the initial burden of a person who sets up plea of insanity becomes light and limited to prove that the person is usually of unsound mind) So, here the first point is whether the plaintiff has succeeded in proving that Abdutty was usually of unsound mind and occasionally of sound mind? If the answer is positive, the burden will be shifted to 6th defendant Rukkiya Umma. Then the second point is whether Abdutty was a person of sound mind at the time when he executed Ext.B1 gift deed ie. whether Abdutty was capable of understanding the nature of Ext.B1 gift deed which he made and forming a rational judgment as to the effect of Ext.B1 gift deed upon his interest at the time when he executed it. All these questions are question of fact only. 26. whether Abdutty was capable of understanding the nature of Ext.B1 gift deed which he made and forming a rational judgment as to the effect of Ext.B1 gift deed upon his interest at the time when he executed it. All these questions are question of fact only. 26. Therefore, firstly let us consider the first point, Was Abdutty usually a person of unsound mind and occasionally of sound mind? Coming to the pleadings regarding unsoundness, the specific averment is that till his death he was insane though at times he had lucid intervals and that he was unable to know about things and circumstances while he was mentally ill and the alleged gift deed is concocted at the instance of the 6th defendant wife by some sort of undue influence and fraud. The said gift deed is not a valid one and it no way affects the right of other parties. In 1980, the mental disorder aggravated and Abdutty was admitted in the mental hospital, Trissur. But he was discharged on partial recovery and thereafter he did not get full recovery till his death. But in evidence he deviated from the pleadings and the plaintiff deposed that Abdutty was a mental patient from the age of 20 years onwards and thereafter the illness was never cured and it was continuing. Thus the nature and content of 'unsoundness in the pleadings and evidence are ex facie mutually destructive and inconsistent. According to the written statement filed by the 6th defendant/Rukkiya, Abdutty had never been a mental patient though at times he was suffering from stomach ache only. But, according to PW1, Abdutty was suffering from aggravated form of insanity from the age of 20 till his last breath at the age of 57. He has given evidence in such a way that Abdutty had no lucid intervals. In 1981 when he became insane, he was admitted in mental hospital, Thrissur at the instance of Kunhimohammod, the brother of Rukkiya. After 5 or 6 days, he went to Thrissur and visited Abdutty when he was staying in a lodge. In 1981 June, insanity was aggravated and thereafter he has never recovered from insanity till his death. To prove the treatment under mental hospital, Thrissur copy of the O.P register was produced and marked as Ext.X1. The relevant entry of one Abdutty was marked as Ext.X1 (a). In 1981 June, insanity was aggravated and thereafter he has never recovered from insanity till his death. To prove the treatment under mental hospital, Thrissur copy of the O.P register was produced and marked as Ext.X1. The relevant entry of one Abdutty was marked as Ext.X1 (a). He came to know about the alleged gift deed when the plaintiff and defendants 1 to 5 gathered in the house of the 6th defendant Rukkiya Umma in connection with the 15th day obsequies of Abdutty after his death, to discuss the sharing of the properties of Abdutty at the mediation of Mohammedunni, Abubacker Haji and Kunjunni. According to PW1, the plaintiff and defendants 1 to 5 came to know about the gift when Rukkiya revealed it in the above occasion and the same was a stunning revelation to them. 27. PW4 is the doctor who was examined to prove the entry in Ext.X1. According to his testimony, the entries in Ext.X1 are usually made by members of staff concerned and he has no personal knowledge about the entries. He is unable to recognize or to identify the handwriting in Ext.X1 (a). He doesn't know the doctor, who treated or admitted the said Abdutty mentioned in Ext.X1. The patient is seen admitted on 29.5.1980 at 5 p.m and discharged on the next day. No document is available in the hospital in connection with this except Ext.X1. At this juncture, it is pertinent to note that the case sheet, the most important document in connection with treatment of a patient, is not available in the hospital. He has never seen the case sheet. Though the signature or thumb impression of the patient could have been affixed in the record, no such signature or thumb impression finds a place either in Ext.X1 or in any other document. Though the case history and date of discharge of the patient should have been recorded in report book, no such document was produced in evidence. 28. In Ext.X1, the name 'Abdutty' alone is shown without his age or address. In cross examination, PW4 admitted that he has not seen the doctor nor did he make any personal enquiry. He had not seen Abdutty while he was allegedly in the hospital. He went to the hospital only on hear say information. 28. In Ext.X1, the name 'Abdutty' alone is shown without his age or address. In cross examination, PW4 admitted that he has not seen the doctor nor did he make any personal enquiry. He had not seen Abdutty while he was allegedly in the hospital. He went to the hospital only on hear say information. Therefore on a total analysis of the evidence given by PW4, no inference can be drawn to the effect that Abdutty shown in Ext.X1 is none other than Abdutty, the husband of Rukkiya or that he was treated in the mental hospital, Thrissur during the year. At the most, what can be inferred from Ext.X1 is that one Abdutty whose details are not known was admitted in Mental Hospital, Trichur on 29.5.1980 and discharged on 30.5.1980. Even if Ext.X1 entry is that of Abdutty the donor of Ext.B1 gift deed of the instant case, it is not at all sufficient to prove that Abdutty was treated for unsoundness of mind at that time as alleged by the plaintiff or that he was non compos mentis on 11.7.1981 the date on which Ext.B1 gift deed was executed. 29. Coming to the oral evidence of PW1, as we found earlier he deviated from the pleadings and deposed that Abdutty was of unsound mind from the age of 21 and thereafter it was never cured and the mental illness continued till his last breath. During the period of July 1981, the mental disorder aggravated and he was completely laid up. His residence is one furlong away from Abdutty's house and he used to visit him. But Abdutty didn't talk anything and appeared gloomy. On the date of the gift deed, Abdutty was incapable of giving his consent. At the same time, he deposed that he came to know about the gift when Rukkiya Umma revealed it at the time when they gathered in the house of Rukkiya on the 15th day, after the death of Abdutty. If that be so, how could he affirm that on the date of execution of the gift, Abdutty was incapable of giving consent? According to PW1, Abdutty never went out of his house after he came from the mental hospital. But, at the same time, he deposed that he didn't know whether Abdutty has a gun licence. According to him, he had never gone for hunting. According to PW1, Abdutty never went out of his house after he came from the mental hospital. But, at the same time, he deposed that he didn't know whether Abdutty has a gun licence. According to him, he had never gone for hunting. It is pertinent to note that this evidence goes contrary to Exts.B2 to B8. According to PW1, land reforms cases of Abdutty were conducted by his 'karyasthan' and Abdutty had never conducted ceiling cases. But at the same time he doesn't remember the person who conducted the ceiling case. He claims to have seen him recently but he has no intention to examine him as a witness. Though documents are seen produced against his deposition, he does not know whether any property has been taken over by the Government as excess land in the ceiling case of Abdutty. This part of his evidence cannot be reconciled with Exts.B10 to B16. He never enquired about Abdutty's properties. Though he pretend to be unaware about Abdutty's gun licence, in cross examination he turned round and admitted that he had a gun licence. He does not know the period for which the licence was granted. He deposed that he has no time to enquire about Abdutty's affairs. Further he deposed that even after the gift deed, item Nos. 7 and 13 were in the possession of Abdutty and Rukkiya had neither any right nor possession over the above said items. But these versions stand against the recitals in Ext.B1. During the years 1981 and 1982, Abdutty has not underwent any kind of mental treatment. But he was not sure as to whether Abdutty had taken any kind of medicine, he did not enquire about the doctor who treated Abdutty and he does not know about the land ceiling cases of Abdutty. He was not sure about the C schedule amount said to have been possessed by Abdutty. According to him, it is a hearsay information only. Though he deposed that once Abdutty was admitted and treated in mental hospital, Kuthiravattom, no evidence was forthcoming to show such treatment. He was not sure about the C schedule amount said to have been possessed by Abdutty. According to him, it is a hearsay information only. Though he deposed that once Abdutty was admitted and treated in mental hospital, Kuthiravattom, no evidence was forthcoming to show such treatment. The most important aspect is that though PW1 claims that Abdutty was insane from the age of 20 till he breathed his last at the age of 57 and he was undergoing treatment throughout, no evidence was forthcoming except Ext.X1 (an unreliable document having no kind of authenticity) and the untrustworthy and unbelievable oral evidence of PW1. On a total consideration it could be reasonably inferred with all possibilities that the relatives of Abdutty were dissatisfied with the 3rd marriage of Abdutty with Rukkiya for obvious reasons. Though PW1 is residing very near to his deceased brother's house, he does not know anything about his brother's family affairs but he knows one thing only that Abdutty was mentally unsound when he executed the gift deed, which he came to know only after Abdutty's death. 30. Coming to PW2, he is none other than the son of plaintiff's uncle. He is also the brother of Abdutty's first divorced wife. Later PW2 married his another sister and he claims that he is well acquainted with Abdutty's family. He deposed that at the time when Abdutty married his sister, Abdutty was not a person of unsound mind, but later he became an insane person at all times and that culminated in the divorce of his first wife. But no evidence was forthcoming to substantiate the reason for divorce except the oral assertion of PW2. He claims that after the death of Abdutty, on the 15th day the family members gathered in the house of Rukkiya Umma to discuss about the sharing of the properties and he was one among the mediator. Besides, he put forward an allegation that once Abdutty's gun had been seized by police on complaint from local inhabitants, but Ext.B7 shows that the gun was surrendered only after the death of Abdutty by his wife Rukkiya and no evidence was forthcoming to prove seizure of the gun on any such complaint. Had there been any instance of seizure of the gun on the complaint of local people evidence could have been produced to prove the same and establish the insanity of Abdutty. Had there been any instance of seizure of the gun on the complaint of local people evidence could have been produced to prove the same and establish the insanity of Abdutty. PW2 is an interested witness and his evidence cannot be believed. According to him, Abdutty had never gone out of the house for the last two years. But Exts.B2 to B8 shows that his gun licence for hunting was being renewed consecutively for every three years in accordance with statutory requirements under Arms Act and Rule till his death. 31. PW3 is another person who claims that he was also a mediator who intervened in the discussion to share the properties after the death of Abdutty. He also reiterated the allegations, spoken to by PW2, that the gun of Abdutty was seized by police on complaints of the local inhabitants. Needless to say that Exts.B2 to B8 establish the falsity of the story put forward by both these witnesses. According to PW2, Abdutty never went out of the house for the last two years. But According to PW3, during fits of insanity he used to go out of the house and threaten the local inhabitants pointing the gun at them, he talked unnecessarily and then the local people realised and identified that he was a lunatic. But in cross examination he admitted that he had never seen such an incident. It is pertinent to note that no independent witness of that locality was examined to prove the alleged insane behaviour of Abdutty. On an analysis of the evidence of PW1, PW2 and PW3 it could be seen that evidence of PW1 as to the nature and conduct of insanity is incongruous with the evidence of PW2 and PW3. According to the pleadings of PW1, Abdutty was sane at times, but according to PW2 and PW3 he was totally insane at all times. Interestingly, PW2 would say that he was gloomy, tame and always silent during the insanity. But according to PW3 he was violent and always found outside the house threatening people and pointing his gun at them. In short, oral evidence as to insanity is mutually destructive, worthless and unreliable and nothing less than an utter lie. 32. Undue Influence and Fraud: Let us examine the allegation of undue influence and fraud alleged in the plaint. But according to PW3 he was violent and always found outside the house threatening people and pointing his gun at them. In short, oral evidence as to insanity is mutually destructive, worthless and unreliable and nothing less than an utter lie. 32. Undue Influence and Fraud: Let us examine the allegation of undue influence and fraud alleged in the plaint. In the instant case, there is no pleading in conformity with Order VI Rule 4 of the CPC. Undue influence and fraud are alleged as consequential effect of unsound mind and no specific allegation was pleaded in the plaint or in evidence. The allegation of fraud must be specific and so also facts constituting fraud must be clearly pleaded. But it stands as vague allegation without pleadings and evidence. 33. Section 16(3) of the Indian Contract Act is relevant for consideration in this connection. Section 16(3) is extracted as follows: "Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other". 34. In Ivy Abraham v. Itty ( 2010 (1) KHC 678 ) this Court held that: "Two factors must be proved for the operation of sub-section (3) of Section 16 of the Indian Contract Act. First is that a person was in a position to dominate the will of another and secondly the transaction appears on the face of it or on the evidence adduced to be unconscionable. If either of these two conditions are not fulfilled the presumption of undue influence will not arise and the burden will not shift; and proof of the actual use of the dominating position will be required". 35. With respect to undue influence, either of the above mentioned conditions are not fulfilled. In the case of coercion also the position is same. Undue influence and coercion are built upon the foundation of unsound mind only. The basic foundation of unsound mind has already been found shattered. Therefore, needless to say that the plaintiff has failed to prove the allegation of undue influence and coercion also. 36. In the case of coercion also the position is same. Undue influence and coercion are built upon the foundation of unsound mind only. The basic foundation of unsound mind has already been found shattered. Therefore, needless to say that the plaintiff has failed to prove the allegation of undue influence and coercion also. 36. Had there been any kind of undue influence or coercion, certainly Rukkiya would have been the best person to exert the same so as to get the entire landed property of her husband. Why should she exempt large extent of property? This question itself shows that she was not in a dominating position over her husband and Ext.Bl was executed by the free will of Abdutty. On a total appreciation of oral and documentary evidence given by PWs 1 to 4 and Exts.X and X(a), we find that the plaintiff miserably failed to discharge the initial burden to prove that Abdutty was usually of unsound mind and occasionally of sound mind as pleaded in the plaint and this point is answered accordingly. 37. Technically there is no need to go to the next question as to whether Abdutty was a person of sound mind when he executed Ext.B1, i.e., whether Abdutty was capable of understanding the nature of Ext.B1 gift deed and forming a rational judgment as to the effect of Ext.B1 gift" deed upon his interest at the time when he executed it. However, we propose to examine the evidence given by Rukkiya Umma the wife of Abdutty to disprove plaint averments and evidence thereon. 38. The sole contesting defendant, Abdutty's wife Rukkiya was examined as DW3. She deposed that she is the third wife of Abdutty. Abdutty married thrice and divorced twice. But he died without issues in any of the marriages. Her marriage was 18 years ago and none of the relatives of Abdutty including the plaintiff and defendants 1 to 5 participated in the marriage as they all disliked his marriage. Thereafter the plaintiff and defendants 1 to 5 have been nursing a hostile attitude towards Rukkiya. According to her, Abdutty had never been an insane person but occasionally he was admitted in hospital for stomach complaint till his death. He had a gun licence and the same had been issued by competent authorities in accordance with law and rules thereunder. Thereafter the plaintiff and defendants 1 to 5 have been nursing a hostile attitude towards Rukkiya. According to her, Abdutty had never been an insane person but occasionally he was admitted in hospital for stomach complaint till his death. He had a gun licence and the same had been issued by competent authorities in accordance with law and rules thereunder. The documents in connection with issuance and subsequent renewals every two years of the gun licence are produced and marked as Exts.B2 to B8. According to her, Abdutty had several cases in connection with land ceiling proceedings under KLR Act and he himself conducted all his cases before the Tribunals and High Court of Kerala. Ext.B9 is an intimation dated 7.11.1981, sent by Tahsildar, Ponnani to Abdutty informing the date of taking possession of excess land under KLR Act. She has produced letters sent by Abdutty1 s advocate in the High Court in connection with land ceiling cases and the same were marked as Exts.B10 to B15. At the time of death, he was aged 57 and Abdutty had sold some of his immovable properties in the year 1978. She denied the averment in the plaint as well as in the deposition of PW1 to PW3 that the plaintiff came to know of the gift deed only when Rukkiya revealed it after the death of Abdutty, when they gathered in the house of Rukkiya to discuss the sharing of immovable property. According to her, such an incident had never happened. She denied the allegation that the gift deed was executed at a time when Abdutty was incapable of understanding things and circumstances and thereby the gift is vitiated by undue influence and coercion. In cross examination, she deposed that she had never seen defendants 1 to 5 who are sisters of Abdutty. Abdutty was on enmical terms with all other family members. Abdutty had never sent his wife to his relatives. According to her, though he went up to High Court and conducted cases for a long period to save large extent of property allegedly in excess of ceiling limit, at last he failed and High Court directed him to surrender excess property under KLR Act. The final verdict was unbearable to him and he committed suicide due to the mental agony which he was suffering after the final order of the High Court. The final verdict was unbearable to him and he committed suicide due to the mental agony which he was suffering after the final order of the High Court. He used to go for hunting till his death. He had never been treated for any mental disorder. She is in possession of the property ever since the execution of the gift deed. Dl to D6 were aware of the gift deed and 1st defendant had already expressed his displeasure towards Abdutty while he was living. The local inhabitants had never complained against issuance of gun licence to Abdutty. He used to go to Ernakulam to conduct cases before High Court. Even though she was subjected to cross examination touching the entire aspects, nothing was brought out to discredit her. What she deposed in cross examination has given more clarity and reliability to her definite contentions raised in the written statement. Her evidence appears to be the evidence of a true, natural and trustworthy witness. 39. DW2 is an attesting witness in Ext.B1 gift deed. He is also the brother of Rukkiya. He deposed that he witnessed the execution of Ext.B1 gift deed and he has duly attested the signature of the doner. He denied the averment that B1 was executed under the influence exerted by him. Bearing in mind his relationship with DW3 we have scrutinized his evidence with due care and caution. In fact, this witness was not a necessary witness. His relationship with DW3 does not render his evidence untrustworthy and nothing was brought out in his cross examination to disbelieve him who figured as an attester. 40. Unlike a Will, the attesting witness to a gift deed is not necessary to be called in proof of execution of a registered gift deed because the gift is a compulsorily registrable document. When a gift deed has been registered in accordance with the provisions of Indian Registration Act 1908 and the execution by the person by whom it purports to have been executed is not specifically denied, the endorsement by the Sub Registrar that executant had acknowledged execution before him also amounts to proof of attestation. 41. Legal Presumption: DW1 is the Sub Registrar, who registered Ext.B1 gift deed. He admitted that he was the Registering Officer during the time of Ext.B1 and he registered the document in accordance with law and rules. 41. Legal Presumption: DW1 is the Sub Registrar, who registered Ext.B1 gift deed. He admitted that he was the Registering Officer during the time of Ext.B1 and he registered the document in accordance with law and rules. Abdutty himself presented the document for registration and registration was effected after identifying the executant Abdutty at that time. Abdutty was not insane and the signature and thumb impression seen in Ext.B1 are that of Abdutty. Abdutty was identified by the identifying witnesses. In this contest the legal presumption under Section 114 is relevant. 42. According to Section 114 the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. According to Section 114 (e) there is a presumption that the judicial acts and official acts have been regularly performed. 43. Coming to Indian Registration Act, Part VI provides for presentation and procedure of registration. Section 32 of the Registration Act states as to who shall present a document for registration. Going by the Section it could be seen that the documents can be presented by the executant or by the person duly authenticated by him. Here the endorsement on Ext.Bl made under Section 58 of the Registration Act shows that Abdutty himself presented the gift deed for registration. DW1 also deposed that the endorsement under Section 58 shall made by him in accordance with law after he was fully satisfied with the statutory requirements. Section 34(3) stipulates that the Registering Officer shall thereupon: (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that he has executed the document; 44. Section 35 states that if the person executing the document appears personally before the registering officer and personally known to him, or if he be otherwise satisfied that he is the person, admits the execution of the document the registering officer shall register the document in accordance with sub-rule (2). Section 35 states that if the person executing the document appears personally before the registering officer and personally known to him, or if he be otherwise satisfied that he is the person, admits the execution of the document the registering officer shall register the document in accordance with sub-rule (2). The Registering officer may, in order to satisfy himself that the person appearing before him is the person he represent himself to be, or for any other purpose contemplated by this Act, "examine the person present before him in his office." Further under sub-section (b) of Section 3 if any such person appears to the registering officer to be a minor, an idiot or a lunatic, the registering officer shall refuse to register the document. Under Section 36 the registering officer has the power to enforce the appearance of executant and the powers of the civil court in that regard are conferred upon him for this purpose and to that extent. 45. Normally a person is presumed to be sane and capable of understanding the things and the acts he does and to judge its consequences. Such a normal man will not sign or execute a document unless he understands the effect and impact of that document upon his interest and the consequences thereof. This is the common course of human conduct or common course of public or private business. So, if a person wants to abrogate this natural course of public or private business or conduct on the basis of any unusual or extra ordinary circumstance, he must allege and prove that circumstance. In the instant case no such special circumstance except insanity is alleged so as to abrogate the general presumption under Section 14(e) of the Evidence Act. We have already found that the allegation of insanity is not true. 46. Therefore in view of Section 114(e) of the Indian Evidence Act and Sections 32 to 36 of the Registration Act if a document is compulsory registrable and registered, it could be legally presumed that the registering officer had registered the document after (i) due enquiry (ii) identifying the executant as the person by whom it purports to have been executed (hi) satisfying that he is the person he represents himself to be and after satisfying that he is not a lunatic ie. the executant, is capable of understanding the document and forming a rational judgment as to its effect upon his interest; unless the above presumption is rebutted or abrogated by cogent and convincing evidence so as to hold otherwise. Until then, the presumption would prevail over the field. Here, absolutely there is no evidence to abrogate the legal presumption in favour of Ext.B1 gift deed, a duly executed one. If Abdutty was a person of unsound mind, DW1 would not have registered Ext.B1 gift deed. 47. The learned counsel for the appellant submitted that there is a delay of more than 3 months for registration after the execution of the gift and this is a strong suspicious circumstance negativing free consent. 48. It is true that Ext.B1is seen to have been executed on 11.7.1981 and registered on 20.10.1981. The learned counsel for the appellant submits that the delay between execution and registration is a vitiating and doubtful circumstance so as to infer want of free consent of the donor of the gift. According to Section 23 of the Registration Act subject to Section 23A and 24, 25, 25 no document other than will shall be accepted for registration unless presented within four months. In the instant case, execution was on 20.10.1981 and registration was on 11th July, 1981 i.e. within four months which is permissible under law. So mere delay by itself in registering the gift deed after its execution is not sufficient to hold that the consent was not free, unless the plea of delay is supported by other evidence corroborating and supporting suspicious circumstances or at least inferences or probabilities. In the instant case the witnesses who have spoken in support of the execution of Ext.Bl gift deed sufficiently explained the cause of delay. In the absence of such corroborating evidence fortifying the delay, it cannot be held that the delay in registration itself is a suspicious circumstance to hold that something dubious was preceding the registration and consent was obtained by undue influence or coercion. 49. The counsel for the appellant submits that PW2, the attesting witness in Ext.B1 is not a local inhabitant and it is also another suspicious circumstance indicating fraud. It is proved that DW2, the first attesting witness was shown as a resident of Puramudakavu, where the house of his wife is situated. 49. The counsel for the appellant submits that PW2, the attesting witness in Ext.B1 is not a local inhabitant and it is also another suspicious circumstance indicating fraud. It is proved that DW2, the first attesting witness was shown as a resident of Puramudakavu, where the house of his wife is situated. Actually his house is situated at Chavakad, a place not far away from Puramundakavu. The learned counsel for the appellant highlighted it as another suspicious circumstance. Going by the Registration Acts and Rules there is no rule requiring that the attesting witnesses must be a person from the same village, whereto the executant belongs. The statutory requirement is that unless the executant is personally known to him, the registering officer must be satisfied that the executant is identified by necessary attesting witnesses that he is the person by whom it is purported to have been executed. Therefore the version of DW1 that he would not have allowed registration of Ext.B1, had DW2 disclosed himself to be a man of another place cannot get support in law and thereby pales into insignificance. 50. Positive evidence disproving unsoundness: Abdutty was a person fond of animal hunting. Ext.B2 to B7 are the proceedings of the Additional District Magistrate, Malappuram issued with respect to subsequent renewal of his gun license every three year. Ext.B2 proceedings dated 20.1.1970 renewing Abdutty's gun license up to 31.12.1973, shows that it was passed on an application dated 30.12.1970 submitted by the Abdutty. From this it could be reasonably presumed that the original license had been issued much earlier. Ext.B3 to B6 are the copies of the proceedings passed by the Additional District Magistrate, renewing the license for every three year up to 31.12.1981. Thus it could be seen that Abdutty has renewed his gun license without fail up to his last sleep. Ext.B7 is the notice dated 20.2.1982 issued by the Sub Inspector of Police, Changaramkulam calling upon Rukkiya, the wife of the deceased Abdutty, the licensee to surrender the gun before him. Abdutty had expired on 17.1.1982. Ext.B7 is the proceedings dated 3.11.1982 cancelling the licence and accepting the gun surrendered by Rukkiya on 14.3.1982. These documents assumes much value and significance, in the light of specific plea of insanity averred in the plaint and the sanity contended in the written statement. 51. Abdutty had expired on 17.1.1982. Ext.B7 is the proceedings dated 3.11.1982 cancelling the licence and accepting the gun surrendered by Rukkiya on 14.3.1982. These documents assumes much value and significance, in the light of specific plea of insanity averred in the plaint and the sanity contended in the written statement. 51. In the above context let us have a look at the relevant provisions of Indian Arms Act and Rules made thereunder regarding the procedure of issuing gun license. According to Section 14(2) of the Arms Act 1959 the licensing authority shall refuse to grant license to a person of unsound mind. Section 17(3) 'interalia' states that the licencing authority may order in writing suspend a licence for such period as it thinks fit or revoke a licence (a) if the licencing authority is satisfied that the licencee is a person of unsound mind or is for any reason unfit for a licence under this Act. (b) if the licencing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence. Therefore 'sound mind' is a condition precedent as well as condition continuing for issuing a licence for using the gun and renewing the licence. According to Section 22 whenever any magistrate has reason to believe that any person residing within the local limits of his jurisdiction possesses arms for any unlawful purpose endangering public peace or safety, he may cause search and seizure of the arm. 52. Likewise, every licence is issued for a specific period and thereafter the firearm can be used only after renewing the licence. The authority which issued licence shall ordinarily be responsible for watching of future renewals of the licences. When the authorities under the Arms Act always keep a vigil on the licensee of a firearm through out the licence period by way of frequent police verification, a lunatic cannot be a licensee and escape the notice of the statutory authorities. Therefore a person of unsound mind cannot be the holder of a license to use the gun and the consecutive renewals without fail could be taken as one of the positive evidence to establish that Abdutty was a person of 'sound mind' at least from 1970 onwards till his last breath. Therefore a person of unsound mind cannot be the holder of a license to use the gun and the consecutive renewals without fail could be taken as one of the positive evidence to establish that Abdutty was a person of 'sound mind' at least from 1970 onwards till his last breath. Moreover Exts.B2 to B8 falsifies the evidence of DW2 and DW3 that police seized the gun of Abdutty on complaint from the local inhabitants when he was of unsound mind. 53. Exts.B9 to B17 are documents in connection with ceiling cases under the Kerala Land Reforms Act. Ext.B9 is the notice dated 7.11.1981 sent by the Tahsildar, Ponnani to Abdutty intimating the date of taking possession of excess land under the Kerala Land Reforms Act. Exts.BlO to B16 are the letters sent by the counsel at High Court of Kerala, Ernakulam to Abdutty informing every stage of the pending cases. These letters shows that Abdutty was capable of conducting cases and keeping constant contact with his Advocate. This documentary evidence falsifies the evidence of PW1 to PW3 that the ceiling cases had been conducted by Abdutty's 'Karyastan' whose whereabouts were unknown to them. 54. Exts.B10 to B16 letters sent by the counsel to Abdutty can give rise to an inference that Abdutty was a vigilant and responsible litigant who was always curious to know every stage and progress of his case. It can be expected from a prudent, responsible and sane person only. Had he been an insane person, he would not have himself monitored his very serious and important property cases. Therefore from these letters a reasonable inference can be drawn that he was a person of sound mind during those period. Conclusion: 55. Let us examine the background in which the gift was executed, which has been spoken to in the evidence of DW1 Rukkiya. Even according to the evidence of Pws 1 to 3, it could be easily inferred that plaintiff and defendants 1 to 6 are close relatives who disliked his late 3rd marriage with Rukkiya and they all have been nursing a hostile attitude towards Abdutty and his wife. Either the plaintiff or anyone else of his family has not rendered any help, during times when their help was needed or when he was facing a large number of cases. He had never sent his wife to the house of his relatives. Either the plaintiff or anyone else of his family has not rendered any help, during times when their help was needed or when he was facing a large number of cases. He had never sent his wife to the house of his relatives. In the above circumstance, there is every possibility to make such a gift deed in favour of his wife, who is too young when compared to his age. He might have foreseen her sad plight in future. Abdutty did not want his wife to live in parsimony or at expense of his relatives with whom she has no connection and from whom he could not have expected a fair treatment. Thus the disposition of property in favour of his wife was in consonance with natural human conduct and that is to be expected from loving husband. 56. The plea of insanity has been raised after the death of Abdutty by his siblings only to grab the property gifted to his wife and also intended to throw her away from the residence in the family property. Thus, the plea of insanity is a fictitious story intended to get at the property. In fact the plaintiff and defendants 1 to 5 were fully aware of the execution of the gift deed and they awaited till the death of Abdutty to challenge it. There is no bona fides in the suit and the suit is intended to achieve the evil motives of the plaintiff and defendants 1 to 5. The aspiration to grab at the property still continuing despite the lapse of three decades. Greed for money makes man mad and makes him to picturize others also mad. 57. We have already found that the plaintiff has miserably failed to discharge his initial burden to prove that Abdutty was a person usually of unsound mind and occasionally of sound mind. Per contra, Rukkiya Umma -the 6th defendant and wife of deceased Abdutty disproved the plaint averment that Abdutty was a person of unsound mind by giving overwhelming oral as well as documentary evidence. In view of the oral and documentary evidence given by Rukkiya Umma, the wife of Abdutty, we have no doubt that Abdutty was a person of sound mind. He was capable of understanding the force and effect of Ext.B1 gift deed upon his interest and he was capable of judging the consequences of Ext.B1 gift deed. In view of the oral and documentary evidence given by Rukkiya Umma, the wife of Abdutty, we have no doubt that Abdutty was a person of sound mind. He was capable of understanding the force and effect of Ext.B1 gift deed upon his interest and he was capable of judging the consequences of Ext.B1 gift deed. We find that Ext.B1 is the gift of a responsible and loving husband to his dear soul mate. The learned Single Judge rightly appreciated the entire evidence in its correct perspective, found that the findings of the trial court are absolutely wrong and thereby allowed the appeal. We see nothing wrong in the impugned judgment of the learned Single Judge of this Court. We find that items 7 and 13 of A schedule are not partible and that the 6th defendant Rukkiya Umma, the wife of deceased Abdutty has absolute right title and possession over the said properties. We therefore confirm the entire findings of the learned Single Judge of this Court and dismiss the appeal. In the result this appeal is dismissed with cost.