JUDGMENT : Jaspreet Singh, J. 1. This is the defendant's second appeal. Being aggrieved against the judgment passed by the Additional District Judge, Faizabad dated 16.11.2011, passed in Regular Civil Appeal No. 78/2008 by which the first appellate court has set-aside the judgment and decree dated 09.4.2007 by which the regular suit No. 200/89 of the plaintiff was dismissed by the trial court. The result is that the suit which was initially dismissed by the trial court was decreed by the first appellate court and it is for the said reason that the defendant has preferred the above second appeal which was admitted by this Court by means of order dated 21.7.2014 on the following substantial questions of law. "i) Whether the learned lower appellate court having formulated only one point on the question of validity of sale-deed as to whether the executant of the sale deed, Dubar was ^^v/kZ ikxy** vkSj ^^ew<** and having recorded a finding in para 41 that Dubar is not found in any manner to be a man of ^^fod`r fpRr** could decree the suit for cancellation of the alleged sale deed going beyond the same on any other point, and the judgment rendered by the appellate court as such is sustainable in the eyes of law? (ii) Whether majority of a man or woman has to be determined on the basis of his age counted from his or her date of birth or it is to be determined on the basis of the mental capacity of a man and the decree as such passed by the learned appellate court treating a man of 50 years to be minor is sustainable in the eyes of law? (iii) Whether Dubar being alleged to be insane from his birth and as per respondent himself being capable to give permission to raise construction over his land to Bhagwan Deen as owner of the same and he could be said to be incapable for executing the sale deed duly executed by him presented before Sub-Registrar after due scrutiny and satisfaction endorsing the certificate to that effect?" 2. In order to answer the aforesaid substantial questions of law certain facts giving rise to the appeal are being noted first. That the plaintiff-respondents instituted a regular suit before the court of Civil Judge, Senior Division, Faizabad, which was registered as R.S. No. 200/1989. In order to answer the aforesaid substantial questions of law certain facts giving rise to the appeal are being noted first. That the plaintiff-respondents instituted a regular suit before the court of Civil Judge, Senior Division, Faizabad, which was registered as R.S. No. 200/1989. The plaintiffs had sought a relief of cancellation of a sale-deed dated 10.4.1989 executed in favour of the defendant appellants by one Dubar, who was the original plaintiff and he died during the pendency of the proceedings before the trial court. 3. The specific pleadings of the plaintiff were that the plaintiff namely Dubar was of unsound right from his childhood and was illiterate and unmarried. The suit was filed by his brother namely Bhagwandeen and it was pleaded that it was Bhagwandeen who used to take care of Dubar including his well being as well as for his meals and residence. Bhagwandeen in the capacity of his elder brother and as care taker used to take care of the property of Dubar which also included the agricultural land which was inherited by both Dubar and Bhagwandeen from their father Vasudev. It was also pleaded that since the plaintiff Dubar was of extremely low intellect from his childhood he had no means of ascertaining what is good or bad for him and he used to loiter around. 4. In paragraph 4 of the plaint it was specifically pleaded that when the consolidation operations commenced in the village and as the plaintiff was of a weak intellect, consequently, the brother of the plaintiff represented Dubar in the consolidation proceedings before the Consolidation officer where Dubar was declared as a person of unsound mind and Bhagwandeen was appointed as his next friend/guardian. 5. It was further pleaded that the property in question is situate on the main road and since it had the house belonging to the plaintiff and Bhagwandeen where both the brothers were residing, however, the defendant No. 2 who belongs to different caste and being a clever person had attempted to grab the said property and with the aforesaid in mind he misguided the plaintiff Dubar on the plea that they wanted to get his name included in the property in question and by luring him they abducted Dubar. 6. 6. Since Dubar did not return home, therefore, Bhagwandeen, his brother made a complaint to the Superintendent of Police stating that his brother was missing and it was apprehended that he had been abducted and murdered. In view thereof there was a lot of commotion in the village and this matter also received attention of a section of the print media. It was further stated that when the defendants became aware that there was so much of activity regarding Dubar being missing, therefore, the defendants took Dubar to an unknown place and released him. When Dubar returned on 10.4.1989 he revealed that the defendants had got his thumb impressions on some blank papers and thereafter upon inspection made by Bhagwandeen it revealed that the defendants have got a sale-deed executed from Dubar in respect of the property in question. 7. It was stated in paragraph 20 that the sale deed dated 18.4.1989 was a void document inasmuch as it was executed by a person of unsound mind. It was further stated that no sale consideration exchanged hands. The stamp duty was not purchased by the plaintiff and the thumb impressions on the aforesaid stamp papers were forcibly taken by the defendants in whose favour the sale deed was executed and for all the reasons the sale deed was void and deserved to be cancelled. 8. The defendant Nos. 1 to 3 contested the suit by filing its written statement. It specifically took the plea that Dubar was a person of normal intellect and was not a person of unsound mind. It also denied the fact that in the consolidation proceedings Dubar was declared as insane. In paragraph 27 it raised the question that since Dubar was a person of normal intellect, therefore, in the circumstances his brother Bhagwandeen was not entitled nor had the authority to file the suit as next friend. They primarily submitted that the plaintiff was the recorded tenure holder whose name was duly recorded in the revenue records and in none of the revenue records it was indicated that Dubar was of unsound mind and that he is represented by his next friend. Considering the aforesaid the sale-deed was executed after paying lawful consideration and as such the premise upon which the sale-deed is sought to be cancelled was denied. All the allegations regarding the abduction of Dubar etc. were denied. 9. Considering the aforesaid the sale-deed was executed after paying lawful consideration and as such the premise upon which the sale-deed is sought to be cancelled was denied. All the allegations regarding the abduction of Dubar etc. were denied. 9. It is in light of the pleadings delivered by the parties the trial court framed seven issues. The important issues were issue No. 1 which related to the fact whether the sale deed dated 10.4.1989 was liable to be cancelled in light of the averments made in the plaint. Issue No. 5 whether in terms of Order 32, Rule 2 the suit of the plaintiff was maintainable without Bhagwandeen being adjudged as guardian-ad-litem and issue No. 6 whether Bhagwandeen had the right to institute the suit as next friend, if yes, its effect. 10. The parties led their evidence in support of their respective case and in furtherance thereof the plaintiff Bhagwandeen examined himself as PW-1, one Agya Ram as PW-2, Sati Prasad as PW-3 and Dr. Harjeet Singh as PW-4. On the other hand, the defendant examined Kamta Prasad as DW-1, Vijay Bahadur as DW-2 and Bans Raj as DW-3. 11. The trial court considered issue No. 1 and it dedicated itself to ascertain whether the mental condition of Dubar was normal or whether he was a person of unsound mind. It is solely with the idea of ascertaining the mental status and condition of Dubar that the trial court has considered the evidence including the evidence of the Dr. Harjeet Singh, the medical expert, who was produced and thereafter it came to the finding that it was not established that Dubar was a person of unsound mind. The trial court dismissed the suit by means of Judgment and decree dated 31.5.2018. 12. The plaintiff preferred a regular civil appeal before the first appellate court under Section 96, CPC which was registered as RCA No. 78/08. The trial court dismissed the suit by means of Judgment and decree dated 31.5.2018. 12. The plaintiff preferred a regular civil appeal before the first appellate court under Section 96, CPC which was registered as RCA No. 78/08. The first appellate court thereafter considered the evidence and reversed the findings rendered by the trial court and held that Dubar was a person of weak intellect and thus, his age was found to be that of a person of 7 to 8 years old and therefore the first appellate court returned the finding that since the mental age of Dubar was 7 to 8 years, accordingly, he could be treated as minor and for the said reason the sale-deed executed by Dubar was found to be void. The first appellate court by means of its judgment and decree dated 16.11.2011 allowed the appeal, set aside the judgment of the trial court and cancelled the sale-deed dated 10.4.1989. 13. Defendants being aggrieved against the aforesaid judgment of reversal, preferred the present second appeal which, as indicated above, was admitted by this Court by this Court by means of order dated 21.7.2014. 14. It is in this factual matrix that the questions formulated by this Court are required to be answered. 15. The court has heard Shri. Mohd. Arif Khan, learned Senior Advocate assisted by Shri. Moinudeen Khan and Shri. M.A. Siddiqui for the appellants and Shri. Ashok Kumar Verma and Shri. Rakesh Kumar Srivastava, learned counsel for the respondents. 16. Shri Arif has primarily submitted that the first appellate court has committed an error in cancelling the sale deed since the pleadings of the plaintiff were at variance with the evidence laid. He pointed out that the specific case as pleaded was that Dubar was abducted and upon his release when he came home he narrated the facts that the defendants had abducted him and got a sale-deed executed from him and it is only thereafter that the plaintiff and his brother Bhagwandeen inspected the records at the registry office and on becoming aware of the said sale-deed thereafter the suit was filed. It is submitted that this is completely at variance since as per the evidence led by the plaintiff it was sought to be established that Dubar was a person of unsound mind and his understanding and intellect was that of a seven years old. It is submitted that this is completely at variance since as per the evidence led by the plaintiff it was sought to be established that Dubar was a person of unsound mind and his understanding and intellect was that of a seven years old. If such a person could not recognize currency then under such circumstance such person could not have returned home and informed and narrated to his brother Bhagwandeen regarding the defendants taking his thumb impressions on stamp paper and other blank papers for the purposes of getting a sale deed executed. 17. Shri Khan has also submitted that the findings recorded by the trial court are based on proper appreciation of evidence and it has noted the discrepancies in the evidence of the medical expert Dr. Harjeet and after analyzing the same in detail it returned the finding with cogent reasons that Dubar was not a person of unsound mind and with the aforesaid finding the suit was dismissed. It has been submitted that the first appellate court has not considered the evidence of the medical expert in the correct perspective and there were various glaring lacunas which could not be explained and thus it was apparent that the first appellate court without meeting the reasons given by the trial court in support of its finding has been reversed which is not in sound exercise of powers of the first appellate court. 18. It has further been submitted that in order to establish the fact whether Dubar was of on unsound mind it was the bounden duty of the plaintiff Bhagwandeen who claimed to be the guardian of Dubar, to have brought on record the medical prescriptions regarding his treatment. No documentary evidence was laid except one solitary medical certificate which too was obtained after the institution of this present suit and it is in furtherance thereof that the medical evidence was led which also did not establish the fact of the unsoundness or mental condition of Dubar. 19. Per contra, Shri. Ashok Kumar Verma and Shir Rakesh Kumar Srivastava have vehemently urged that the first appellate court being the final court of fact and law, is entitled to re-appreciate the evidence in exercise of powers conferred under section 96 CPC. 19. Per contra, Shri. Ashok Kumar Verma and Shir Rakesh Kumar Srivastava have vehemently urged that the first appellate court being the final court of fact and law, is entitled to re-appreciate the evidence in exercise of powers conferred under section 96 CPC. It has also been urged that once the first appellate court has undertaken the exercise of scrutinizing the evidence and it has given its reason to reverse the findings of the trial court and gave its own finding holding that Dubar was a person of weak intellect, this being essentially a finding of fact cannot be interfered with in exercise of powers under section 100, CPC. 20. Learned counsel for the respondents have further submitted that there is difference of burden of proof and onus of proof. It has been submitted that the trial court had failed to appreciate the distinction between the two and the fact that Dubar was mentally fine this fact was to be established by the defendant. The plaintiff while instituting the suit brought on record the evidence in shape of medical prescription and report and thereafter also examined Dr. Harjeet as an expert witness, who gave his finding that Dubar was examined by him and he was found to suffer from mental ailment and that he was an idiot and upon examination, his mental age was of a seven years old who was not able to understand his own well being and therefore this was enough of clear evidence to indicate that Dubar was mentally unsound. Thus, the plaintiff had discharged his burden and now if at all the defendant were disputing the mental status of Dubar it was required from the defendants to have proved the same, however, in the present case the defendants have not laid any evidence to the said effect nor they have made any effort to get Dubar examined by a medical expert and thus in the circumstances the first appellate court has rightly held that the mental condition of Dubar was that of a seven year old and being a person of unsound mind could not have executed the sale-deed in question which has rightly been cancelled. 21. 21. In light of the submissions made by the learned counsel for the parties and the questions of law formulated, by this Court the pleadings as well as the evidence led by the parties has been carefully perused and scrutinized by this Court. 22. Apparently from the case set up in the plaint, it has been categoric plea that Duber was a person of unsound mind. The pleadings depict that he was not capable of looking after himself and his well-being and that Bhagwan Deen has been acting as his guardian and mentor. It has also been pleaded that in the consolidation proceedings, Duber was declared as a person of unsound mind and that Bhagwan Deen has been looking after the person and property of Duber and it is for the said reason that the present suit was also instituted by Duber through his next friend, his brother, Bhagwan Deen. In contrast to the above, the crux of the defence is that Duber was a person of sound mind and was not insane or of unsound mind. He was capable of understanding his own acts and accordingly for a valuable sale consideration, he in his sound mind had executed the sale-deed. 23. The appellants have attempted to indicate that since it was the case of the plaintiff that Duber was a person of unsound mind, therefore, the burden was on the plaintiff to discharge the same while the crux of the arguments raised by the learned counsel for the respondent is that though they had raised the plea of unsoundness of mind of Duber, the plaintiff discharged the same, by examining a medical expert, who also corroborated the fact that Duber was of a very low intellect and though his age was of 40 years plus but his mental capacity/age was of 6-7 years old child and thus the first appellate Court concluded that he was incapable of executing the sale-deed. Once this burden was successfully discharged the onus shifted on the defendant-appellant, to indicate that Dubar was a person of sound mind and since there is no evidence to that effect nor any attempt has been made by the appellant, therefore, the first appellate Court is completely justified in allowing the suit by reversing the judgment and decree passed by the trial court. 24. 24. To answer the questions of law so formulated, it needs to be seen what is the texture, tenor and the weight of the evidence led by the plaintiffs to prove their case. 25. First and foremost, the medical expert's evidence is being scrutinized by this Court to determine whether the evidence led by the expert inspires confidence inasmuch as this evidence has been discarded by the trial court while it has been relied upon by the first appellate Court. 26. The parties have relied upon document bearing Paper No. Ga-68. This is a certificate issued by Dr. Harjeet Singh wherein it has been certified that Dubar was brought before him by his brother Bhagwan Deen, whose both thumb impressions were attested by the said doctor and it was indicated that Dubar is suffering from Moderate Grade of Mental Retardation (Idiot) and it is further certified that he could neither give nor recognize coins and upon the performance of tests of his mental age and intelligence quotient (IQ) which was in the range of 42-45 it has been certified that Dubar is incapable of managing his property. It has further been certified that the mental retardation cannot be cured by medicines and that the certificate was being issued on the request of his brother Bhagwan Deen for submission, to protect his property. 27. Dr. Harjeet Singh is a lecturer in Psychology having a decree of MD in King Georges' Medical University, Lucknow. The aforesaid expert was cross-examined and he indicated the followings (i) That in order to ascertain the mental condition of the patient, I get an X-ray done. However, in the case of Dubar, he could not recall whether he had advised Duber to get an X-ray done or not. (ii) He further stated that when Duber was brought before him no other medical record was brought. He could not remember that when he examined Duber and at that time how many other patients were available, (iii) He tried to differentiate between a person being insane and being an idiot. He stated that he had given the certificate to the effect that Duber was an idiot and not insane, (iv) He further submitted that there is a pro forma for giving a certificate. However, the certificate issued to Duber on the request of Bhagwan Deen was not on its usual pro forma. He stated that he had given the certificate to the effect that Duber was an idiot and not insane, (iv) He further submitted that there is a pro forma for giving a certificate. However, the certificate issued to Duber on the request of Bhagwan Deen was not on its usual pro forma. He further clarified that the pro forma is when a request is made through the Court to examine a person which contains the full particulars of a patient, the address, the details of his ailment and since the request for examining Duber did not come through the Court, therefore, he did not issue the certificate on the pro forma, (v) He also clarified that he had issued the certificate for the purposes of protecting the property of Duber. He admitted that along with his certificate there were other prescriptions and tests which were conducted which were part of it. However, those documents upon which the tests were conducted and upon the basis of which he came to the conclusion that Duber was an idiot have not been filed on the record by the plaintiff-respondents, (vi) He further stated that if he is given time he can bring the documents by which he had conducted the tests and had come to his conclusion. Though he was granted time but later he refused that he did not have those documents and, therefore, he could not bring the same on record. (vii) He further stated that he himself had given advise to Bhagwan Deen that since Duber was an idiot, therefore, his property should be protected and keeping the same in mind he had incorporated this advise in the certificate bearing Paper No. Ga-68. (viii) He also clarified that in view of the tests so conducted, it was apparent that Duber was not able to count the coins nor he could recognize the coins and, therefore, this prompted the doctor to incorporate in his statement that Duber had the mental capacity of a 7 years old boy. (ix) In his cross-examination, he admitted that Duber was also examined by a clinical Psychologist Dr. M.P. Gupta. Dr. Gupta had also given his report but he further noted that the report of Dr. M.P. Gupta is also not available on the record nor the certificate nor the details or the conclusions given by Dr. (ix) In his cross-examination, he admitted that Duber was also examined by a clinical Psychologist Dr. M.P. Gupta. Dr. Gupta had also given his report but he further noted that the report of Dr. M.P. Gupta is also not available on the record nor the certificate nor the details or the conclusions given by Dr. M.P. Gupta were either filed nor such details were noted in the certificate issued by Dr. Harjeet Singh. 28. The trial court while recording the evidence of Dr. Harjeet Singh has also noted the demeanour of the said witness. Similarly, Bhagwan Deen also examined himself as PW- 1 while two other persons namely Agyaram and Sati Prasad were examined as PW-2 and PW-3 respectively. In their cross-examination, these people have submitted that Duber was not mentally well. He used to roam aimlessly in the village and was not aware of his good or bad and that the persons in the village used to tease Duber by calling him names. This was all stated to submit that Duber was of on unsound mind. 29. If the entire evidence led on behalf of the plaintiff including that of the medical expert is seen there are certain glaring questions which require answers from the plaintiff but unfortunately they remained conspicuously unanswered. 30. If Duber was a person of unsound mind by birth and that Bhagwan Deen, his brother had been taking care of Duber right from his younger age then something which strike at the face of it is that there is not a single medical prescription relating to Duber which indicates that he has been suffering from any mental ailment or that he had suffered from mental retardation from his childhood. There is no explanation as to, while Duber was growing up and if he was not responding as a normal child then whether any medical advice was sought or he was treated and that during his childhood who was the doctor who had advised Bhagwan Deen that his brother was mentally retarded. There has been no evidence on record to the effect that Duber had been treated for any ancillary complication which required treatment. 31. The certificate dated 26.04.1990 issued by Dr. There has been no evidence on record to the effect that Duber had been treated for any ancillary complication which required treatment. 31. The certificate dated 26.04.1990 issued by Dr. Harjeet Singh bearing Paper No. Ga-68 is the sole document which has been brought on record and it will be relevant to point out that this certificate has been obtained from the said doctor after the institution of the suit inasmuch as the suit was filed on 24.05.1989 and that the certificate is dated 26.04.1990. Thus before instituting the suit, there was no material available which could be brought on record to indicate the illness or the ailment of Duber. 32. Another feature that is staring is that at the time of the institution of the suit, it was the duty of Bhagwan Deen when he wanted to seek the leave of the Court to institute the suit on behalf of Duber as his next friend on the ground that he was a person of unsound mind, however, no material was brought on record to indicates that Dubar was of unsound mind but the suit has been instituted casually without first seeking the permission of the Court to institute the suit, through the next friend. 33. Moreover, neither any certificate was brought on record by Bhagwan Deen, prima facie, at the time of institution of the suit to indicate that Dubar was a person of unsound mind. Though there is a mention in the plaint that during the consolidation proceedings, Dubar was declared as a person of unsound mind. There is no evidence on record which indicates as such that in the consolidation proceedings, it was established or determined that Dubar was a person of unsound mind. 34. The plaintiffs had relied upon a certified copy of the khatauni bearing Paper No. Ga-8 which indicates that according to the order of the consolidation officer upon striking off the name of Basudev, the names of Bhagwan Deen and Dubar through guardian Bhagwan Deen has been incorporated and that in the khatauni there is a reference of the word "Pagal" to indicate that the aforesaid has been incorporated in the khatauni. However, what is missing is the fact that the name of Dubar was recorded as the joint tenure holder once the father of the parties expired. However, what is missing is the fact that the name of Dubar was recorded as the joint tenure holder once the father of the parties expired. It is to be noted that once the father of Dubar and Bhagwan Deen namely Basudev expired, it is at that point of time that the name of Dubar and Bhagwan Deen ought to have been recorded and in all the khatanuis subsequent thereto the name of Dubar as a person of unsound mind and represented through guardian ought to have been recorded but except for this solitary khatauni there is no other khatanui incorporating the entry of Dubar as a person of unsound mind, nor such document was brought on record. 35. Another fact which has been noted by the two courts is that on one date Dubar was summoned by the trial Court, however on the said date upon an adjournment sought by the defendants Duber himself could not be examined or cross-examined, however, the trial court on its own has made certain observations that Dubar was present in Court and upon asking questions generally he did not answer. This has not been seen by the trial court as a major ground. However, the first appellate Court has placed heavy reliance on this circumstance to indicate that Dubar was present in the Court and the defendants deliberately sought an adjournment and once the case was adjourned, the Court had made these observations which also corroborates the fact that Dubar was not a person of sound mind as he was not able to answer or rather did not answer any question posed by the Court. 36. The fact remains that despite the same, no effort was made by either of the parties to produce Dubar in Court on the subsequent dates. Merely because Dubar did not answer any question in Court does not reflect his mental condition to be determinative of the fact that the person was of unsound mind. 37. There can be various textures and shades of mental ailments but all of them are not to that extent which can hold a person to be of unsound mind so as to make him absolutely incapable of taking care of his own property and person. 38. Bhagwan Deen has not been able to bring on record any conclusive evidence nor his conduct appears to be natural. 38. Bhagwan Deen has not been able to bring on record any conclusive evidence nor his conduct appears to be natural. Since, if he would have been taking care of Dubar from his childhood as a person of an unsound mind, then from time-to-time there would have been prescriptions by doctors specializing in mental ailment. Medications given to Dubar from time to time regarding his mental conditions and though it may be true that his mental retardation could not be cured by medicines, but the fact remains that medication is given to persons of such mental retardation in order to keep them calm and in control so that a person does not become aggressive and offensive towards others. 39. There is no evidence to the effect that any such medication was given. However, it is an admitted fact that Dubar was not aggressive and not offensive to others. This is borne out from the statement of Bhagwan Deen. 40. It has also not been explained that if Dubar was of that category who could not recognize the coins/currency nor could he be able to understand his good or bad then how did he explain that the defendants had abducted him and kept him in isolation and took his thumb impressions on stamp paper and plain paper to get the sale-deed executed. The statement given in the plaint that the defendants misguided Duber on the pretext that they wanted to get his name incorporated in the property records and it is with the aforesaid allurement that they had abducted him also appears to be false. Since the name of Dubar as per Bhagwan Deen was already incorporated in the khatauni and since from his childhood he was already looking after Dubar and that Dubar was unable to understand implications regarding his own person and property then perhaps this allurement for such a person is absolutely farcical. 41. Since the name of Dubar as per Bhagwan Deen was already incorporated in the khatauni and since from his childhood he was already looking after Dubar and that Dubar was unable to understand implications regarding his own person and property then perhaps this allurement for such a person is absolutely farcical. 41. It would have been another things to say that a person whose mental age/capacity is that of 6-7 years and the defendants had tried to allure him with certain materialistic allurements such sweets, food, toys, clothes etc., perhaps it could have appealed more, but to specifically state in the plaint that the purpose of allurement was to get the name of Dubar recorded in the property, for a person whose mental capacity is of 7 years and that such a person could not recognize the currency nor could count coins gives and makes a statement that he was abducted on the aforesaid pretext and that his thumb impressions were taken on stamp paper and plaint paper becomes difficult to believe. 42. Moreover, the plaintiffs had also stated that they had reported the abduction of Dubar to the police and that it was also published in certain sections of the press also becomes doubtful. Since the copies of the newspaper reports which have been brought on record as bearing paper No. Ga-54 reports that one youth namely Dubar has been missing from last 15 days and it is apprehended that he has been abducted and might have been murdered. It further reports that the elder brother had reported the matter to the police wherein it is indicated that the mental condition of Dubar is not quite well. 43. Even in the application which is the first reaction of Bhagwan Deen dated 21.10.1989 bearing Paper No. Ga-32, it only indicates that the report has been made that the land of Dubar is sought to be taken by the persons namely Lalta Prasad, Kanta Prasad, Prem Prakash, who are the defendants but in the entire report made to the police there is not a whisper of the fact that Duber is a person of unsound mind and that his land is being sought to be usurped by the persons named. The date of this report is 21.10.1989 whereas the sale-deed in question is dated 10.04.1989 and at this first reaction it is not mentioned that Dubar is a person of unsound mind while the date of report in the newspaper is also 21st April, 1989. 44. On record, there is a Khasara bearing paper number Ga.58 which is also in the name of Dubar. However, there is no mention of the fact that he is a person of unsound mind whereas it relates to the fasli year 1386 i.e. gregorian year 1979. Similarly, there are other documents indicating the revenue entries in the name of Dubar. However, in none of those revenue entries, there is any whisper regarding his mental incapacity. Similarly Khatauni for the fasli years 1412 to 1417 is also in the name of Dubar including of the fasli year 1415 which relates to the gregorian year 2008 and in all the Khatauni entry, the name of Dubar have been shown but it has not been mentioned that he is a person of unsound mind. 45. It is in this backdrop, if it is seen that one Khatauni wherein there is a mention of the fact that Dubar is a person of unsound mind, then in all the subsequent Khataunies, the aforesaid endorsement in the entry should have been incorporated. However, the record indicates that except for that one particular Khatauni which makes a mention that there is some orders of the consolidation officer by which the name of Vasudev was scored of and the name of Dubar and his brother Bhagwan Deen was incorporated and it was further mentioned that Dubar is under the guardianship of Bhagwan Deen as Dubar is a person of unsound mind, is the one solitary document. 46. However, in order to buttress the same, the plaintiff could not bring on record the order itself by which it was stated that Dubar was declared as a person of unsound mind. This matter can be seen from another angle as well. 46. However, in order to buttress the same, the plaintiff could not bring on record the order itself by which it was stated that Dubar was declared as a person of unsound mind. This matter can be seen from another angle as well. If Dubar was a person of unsound mind right from his childhood then upon the death of Vasudev the father of Dubar and Bhagwan Deen, the initial entry indicating the incorporation of name of both Dubar and Bhagwan Deen entered in the revenue record and the said entry should have continued without any change rather it indicates that the revenue entries have continued till the year 2008 in the name of Dubar and it is only one entry which shows that Dubar is a person of unsound mind. This continuity which ought to have been present and natural, is missing. 47. In the present case there is no explanation from the side of the plaintiff in respect of the issues examined hereinabove. Moreover, if the plaintiff Bhagwan Deen got himself declared as the guardian of Dubar in the consolidation proceedings, then that order at best could have been ordered declaring Bhagwan Deen as guardian ad litem. There is no other document which could indicate that Bhagwan Deen was ever declared as the next friend of Dubar by a competent court as provided under the Indian Lunacy Act. Since Dubar had inherited the rights of his father in his personal capacity having a separate and identifiable share, and under the revenue laws Bhagwan Deen otherwise is not the natural guardian except that he is the real brother but the fact remains that in order to deal with the property of a person of unsound mind Bhagwan Deen ought to have sought his declaration in terms of the Indian Lunacy Act as it was prevalent at the relevant time when the litigation started in the year 1989 for which the district court has been granted power to make an acquisition in respect of a person alleged to be a lunatic for which Chapter-V and more particularly Sections 62, 63 and 65 of the Indian Lunacy Act are relevant. 48. 48. From the record, it would indicate that the trial court while entertaining the plaint in the first instance did not look into the fact that the suit which was being instituted though next friend in respect of Dubar, who otherwise in the plaint has been shown to be a major and therefore in order that the suit should have proceeded, at least, a preliminary enquiry should have been conducted by the trial court to have satisfied itself that Dubar was a person of unsound mind for which a guardian ad litem ought to have been appointed for the continuation of the proceedings. Strangely there was no evidence worth its name at the time when the plaint was instituted to substantiate that Dubar was a person of unsound mind. 49. The submission of the learned counsel for the respondent that since it examined the witnesses including the medical expert Sri. Harjeet Singh, who stated that Dubar was a person of unsound mind and was an idiot, this itself discharges the burden of the plaintiff and the entire onus rested with the respondent does not impress the court for the reason that where both parties had led evidence the burden of proof pales into insignificance. In the present case, this issue regarding burden of proof was not in controversy before either the trial court or the first appellate court. Both the courts had made independent assessment of the evidence and have come to different conclusion. 50. As already indicated above, the evidence led by the plaintiff who was primarily responsible to actually prove that Dubar was a person of unsound mind has not been able to discharge its burden by bringing on record cogent evidence to establish the fact. As already discussed above the report of the medical expert is mired with certain inherent lacuna which does not inspire confidence. Moreover as indicated above, the absence of any consistent medical records, prescription and even the first reaction of Bhagwan Deen when he made a complaint to the police regarding the fact that Dubar was missing also does not indicate that it has been stated that Dubar was of unsound mind. Even the newspaper reports merely used the word "mental condition is not alright'. This terminology used apparently does not suggest that Dubar was a person of unsound mind. Even the newspaper reports merely used the word "mental condition is not alright'. This terminology used apparently does not suggest that Dubar was a person of unsound mind. It will be relevant to mention that a person may be going through certain disturbed phase and it can be said that is mental condition is not alright but it is all together a different thing to say that a person is of on unsound mind. 51. Since Bhagwan Deen was his brother and as his case is that Dubar was a person of unsound mind right from his childhood and was always being looked after by Bhagwan Deen, then it leaves no manner of doubt that any person who would have made a report to the police concerned or in the newspaper would have clearly suggested that Dubar is a person of unsound mind and it is feared that he is missing and apprehended that he may have been abducted or murdered. Thus from the complete reading and appraisal of the evidence it suggests that may be the mental condition of Dubar may not have been absolutely fine but definitely it was not as if, he was a person of unsound mind who was incapable to carry out and understand his own decisions. 52. It appears that Bhagwan Deen became aware of the fact that Dubar had executed a sale-deed in favour of the defendant then considering the matter, the averments was made that Dubar is insane and with the aforesaid allegation the suit came to be filed. 53. However, as already indicated above, there is nothing to suggest that Dubar was insane except one entry in the Khatauni which is not corroborated by similar entry in the subsequent years. 54. The Khatauni and one medical certificate which also is mired with suspicious circumstances; inasmuch as the person who issued such certificate could not explain why he had advised and incorporated in the certificate that it was being issued only for the purposes of protection of the property of Dubar, that too after the institution of the suit. 55. The doctor/witness while coming to the conclusion regarding his mental status he said that the medical expert could not produce any document or report irrespective of the test conducted by him as well as the report of another Dr. 55. The doctor/witness while coming to the conclusion regarding his mental status he said that the medical expert could not produce any document or report irrespective of the test conducted by him as well as the report of another Dr. N.P. Gupta and upon basis of which the said doctor came to his conclusion but could not support his finding with any corroborative evidence though he was granted time for the aforesaid purpose to submit the same in the court. 56. Thus in the overall factual scenario as discussed in detail, this Court is of the opinion that the findings returned by the first appellate court in respect of the evidence of the medical expert that Dubar was of unsound mind, does not corroborate from the pleadings as well as the facts, though there is the report of that expert but the same does not inspire confidence. 57. In the aforesaid facts and circumstances and on the perusal of the evidence, it can be said that to return a finding regarding the mental capacity of a person, the evidence available on record must be of such a standard which could certainly persuade the court to return a finding regarding the unsoundness of the mind of Dubar. Since the evidence on the aforesaid point was not satisfactory, therefore, it cannot be said that the plaintiff has satisfactorily discharged its burden to prove its case. 58. This Court is of the definite opinion that the entire controversy regarding the validity of the sale deed is revolving around to the question whether Dubar was of unsound mind or not and the fact that may be Dubar was a person of 40 years plus in age but as per the doctor's report, his mental capacity was that of 6 to 7 years old, does not bear too much of relevance for the simple reason that if Dubar was an idiot and this fact was not clearly stated on record in the pleadings at the time of institution of the suit and the plaintiff had used different word such as ^ew<] v)Z&ikxy] fod`rfpr* to describe Dubar and have also used the word insane in the plaint. All these terminologies indicate different facets whereas the report of the doctor certifying Dubar to be an idiot has an altogether different connotation. 59. All these terminologies indicate different facets whereas the report of the doctor certifying Dubar to be an idiot has an altogether different connotation. 59. Thus, if Dubar was a person of unsound mind then whether his physically age was 40 plus and his mental age was incapacitated has not much meaning as the sale deed would be void for the simple reason that Dubar being a person of unsound mind could not have looked after his person and property and thus the sale deed would be bad. 60. In the present case, the evidence does not categorically indicate the unsoundness of mind of Dubar to be of such an extent that he was unable to look after his person and property and this fact being in the special means of knowledge of Bhagwan Deen could and ought to have been proved in a much more satisfactory and better manner since the issue regarding the declaration of a person as of unsound mind is a serious issue, which required a higher standard of proof then was sought to be tendered before the trial court by the plaintiff-respondent. 61. In the aforesaid circumstances, this Court is satisfied with the reasoning given by the trial court which is based on proper appreciation of evidence and thus this Court is of the considered opinion that the judgment passed by the first appellate court which has reversed the finding is not supported by cogent reasons. Accordingly, the judgment and decree dated 16.11.2011 passed by the Additional District Judge, Court No. 4, Faizabad in Civil Appeal No. 78 of 2008 is set aside and the judgment and decree dated 31.05.2008 passed in Regular Suit No. 200 of 1989 by the Civil Judge (Senior Division), Faizabad is restored. 62. In view of the above discussions, this second appeal is allowed. There shall be no order as to costs. 63. The record of the trial court be remitted to the court concerned within a period of two weeks.