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2021 DIGILAW 1089 (ALL)

Dashrath Singh v. Gaya Din

2021-09-21

SIDDHARTH

body2021
JUDGMENT : SIDDHARTH, J. 1. Heard Sri Rahul Sripat, learned Senior Counsel, assisted by Sri Ishir Sripat, learned counsels for the defendant/appellant and Sri Ashutosh Srivastava and Sri Prashant Kumar Tripathi, learned counsels for the plaintiffs/respondents and also perused the lower court record. 2. This second appeal has been preferred against the judgment and decree dated 17.09.1999 passed by IIIrd Additional District Judge, Banda in Civil Appeal No. 17 of 1998, Dashrath Singh and Another vs. Gayadin and Another, confirming the judgment and decree dated 19.03.1998 passed by Civil Judge, Senior Division, Banda, in Original Suit No. 34 of 1992. 3. The plaintiffs’ case is that he is suffering from unsoundness of mind and not in a position to decide about protection of his rights nor has capacity for the same. Plaintiff has got addicted to liquor and opium for last six months. He has become mentally disturbed. Surajdin is the elder brother of plaintiff, Gayadin and he looks after him and also protects his interest. Therefore, plaintiff has appointed him as his General Power of Attorney, holder. The interest of Gayadin and Surajdin are different. Gayadin was schizophrenic from childhood and its symptoms increased with age. Therefore, he could not be married to any girl. Gayadin is not able to read, write or understand anything. The defendant no. 1, Dashrath Singh, is providing means of addiction for last 4-5 years to the plaintiff. The defendants have got all the sale deeds dated 04.07.1992 fraudulently executed from the plaintiff regarding his land in their favour which is mentioned in schedule-A, schedule-B and schedule-C of the plaint. The above sale deeds are without payment of any sale consideration. The market value of the property in dispute is not less than Rs.10 lakhs when it has been sold for an amount of Rs.2 lakhs hence sale deeds deserve to be cancelled. The defendant nos.1 and 2 have got the sale deeds executed fraudulently in favour of defendant no. 3, when they have no possession over the property. The construction over the land in dispute belongs to the plaintiff and his brother, Surajdin. Over the disputed land shops have been constructed by Surajdin and he has let them out on rent. The defendant nos.1 and 2 have got the sale deeds executed fraudulently in favour of defendant no. 3, when they have no possession over the property. The construction over the land in dispute belongs to the plaintiff and his brother, Surajdin. Over the disputed land shops have been constructed by Surajdin and he has let them out on rent. Surajdin realized the rent of the aforesaid shops which are part of joint Hindu family hence the suit was instituted praying for cancellation of two sale deeds dated 04.07.1992, in favour of defendant nos.1 and 2. 4. Defendant nos.1 and 2 filed their written statements denying the plaint averments. They stated that the plaintiff is a widower and he has no child. Surajdin is elder brother of plaintiff, Gayadin and he has been regularly torturing and exploiting the plaintiff. He has executed number of sale deeds with the plaintiff and usurped entire money. Being fed-up of Surajdin, plaintiff, Gayadin, took loans and could not repay them and was in trouble. He is a person of sound mind and has executed sale deeds after fully understanding its contents. The defendant nos.1 & 2 have paid sale consideration to him. Surajdin has instituted the suit for ulterior motives. Gayadin is not addicted to liquor and opium. The defendants filed additional written statement stating that Gayadin was never a schizophrenic nor mentally unsound person. 5. Defendant no. 3, Bitola Devi, also filed her written statement claiming herself to be bona-fide purchaser of the property for value. 6. On the basis of the pleadings of the parties, the trial court framed the following issues: (i) Whether the sale deed dated 04.07.1992 executed by plaintiff, Gayadin, in favour of defendants and duly registered before Sub-Registrar, Banda at Serial no. 1683 is liable to be cancelled on the basis of the plaint averments. (ii) Whether the sale deed dated 04.07.1992 executed by plaintiff, Gayadin in favour of defendants and duly registered before Sub-Registrar, Banda at Serial no. 1682 is liable to be cancelled on the basis of the plaint averments. (iii) Whether Surajdin is the next friend of plaintiff, Gayadin? If no, then its effect? (iv) Whether the suit is barred by principle of acquiesance and estoppel? (v) Whether the plaintiff, Gayadin, is entitled to get the sale deed in dispute cancelled? (vi) To what relief is the plaintiff entitled to, if any? (iii) Whether Surajdin is the next friend of plaintiff, Gayadin? If no, then its effect? (iv) Whether the suit is barred by principle of acquiesance and estoppel? (v) Whether the plaintiff, Gayadin, is entitled to get the sale deed in dispute cancelled? (vi) To what relief is the plaintiff entitled to, if any? (vii) Whether Surajdin has instituted the suit by mentioning himself next friend of Gayadin on account of malafide? (viii) Whether plaintiff has always been a person of healthy mind and understanding and he is same as yet? (ix) Whether Dhasrath Singh and Narendra Singh are entitled to get the sale deed dated 04.07.94 executed in favour of Smt. Batola Devi cancelled? (x) Whether the suit is under valued? (xi) Whether the court fees paid is insufficient? (xii) Whether the suit of the plaintiff suffered from the defect of nonjoinder of necessary party? 7. The plaintiff produced four witnesses namely, PW-1, Surajdin, PW-II, Bhagwan Deen; PW-III, Raja Bhaiya; PW-IV, Dr. K. Prasad, Medical Officer Incharge, Primary Health Centre, Bisanda and PW-5, Dr. Ashok Upadhay, Medical Officer, District Hospital, Jhansi. 8. The defendants produced DW-I, Dhasrath Singh; DW-II, Jay Prakash; DW-III, Jageshwar Yadav and DW-IV, Ram Chandra Singh, son of Dashrath Singh. 9. Plaintiff produced the copy of sale deeds dated 04.07.1992, medical certificates of Gayadin dated 08.06.1992 and 24.07.1992. The copy of newspaper dated 25.07.1992 and copy of sale deed dated 4.07.1994 executed by Narendra Singh and Dashrath in favour of Smt. Bitola Devi. Medical certificate dated 23.11.94 of Medical Officer, Primary Health Centre, Bisanda. 10. The defendants produced the copy of sale deed dated 20.08.1994 executed by Surajdin in favour of Dinesh Singh and Ram Naresh Singh and copy of two Kataunis of the year 1396 to 1401 Fasli, Mauza Bhawanipur. Application given in the court of Tehsil Banda registered as case, Narendra Singh vs. Gayadin, assessment of Nagar Palika regarding house No. 1135A and copy of order dated 23.12.1992. 11. The trial court decided the issue nos. 3, 7 and 8 together holding that under Order 32 C.P.C it is the duty of the court to see whether the next friend of the minor or person of unsound mind, through whom the suit has been instituted, protects the interest of the plaintiff or not. 11. The trial court decided the issue nos. 3, 7 and 8 together holding that under Order 32 C.P.C it is the duty of the court to see whether the next friend of the minor or person of unsound mind, through whom the suit has been instituted, protects the interest of the plaintiff or not. In the present case no inquiry was conducted as per Order 32, Rule 15 CPC at the time of registration of the suit, whether Gayadin was a man of normal mind. The defendants have stated that there was no need of filing separate application for this purpose and the suit is only required to be instituted through next friend. The trial court found that it is not too late to conduct such inquiry if the inquiry was not conducted as per Order 32, Rule 15 C.P.C when the suit was instituted. The court found that the relief sought in the plaint is not against the interest of the plaintiff but in his interest and Surajdin would not be beneficiary if the suit is decreed. Therefore, as per the judgment reported in K. Kumar vs. Omkar Nath, AIR 1972 Allahabad 81 it held that there is no procedural mistake in entertaining the suit filed through next friend. The trial court did not agreed with the case of the defendant nos.1 & 2 that Surajdin tortured and harassed the plaintiff, Gayadin and thereafter he executed the sale deed in favour of the defendant nos.1 and 2. From the evidence led by the doctor, the court found that the plaintiff, Gayadin did not executed sale deeds while in senses and as per his free will. The court considered the statement of PW-IV, Dr. K. Prasad, who stated that the plaintiff Gayadin was suffering from mental ailment. PW-V, Dr. Ashok Upadhay also testified that the plaintiff was referred to him for treatment of ailment of schizophrenia. He was also referred to Mental Hospital, Agra. Hence trial court concluded that on the date of treatment by him on 08.06.1992 the plaintiff was not in normal mental state and not in a position to take decision. The thumb impression of plaintiff was identified by PW-IV and PW-V on the medical certificates. 12. DW-1, Dasrath Singh stated before the trial court that plaintiff was in fit mental state at the time of execution of sale deed but the court disbelieved his testimony. The thumb impression of plaintiff was identified by PW-IV and PW-V on the medical certificates. 12. DW-1, Dasrath Singh stated before the trial court that plaintiff was in fit mental state at the time of execution of sale deed but the court disbelieved his testimony. DW-II, testified that the plaintiff used to do the job of pump mechanic six years ago. Since no such pleadings were made in the written statement, the court disbelieved DW-II. DW-III, scribe of the disputed sale deed, stated that on the date of execution of sale deed plaintiff, Gayadin, was not mad. He admitted that Surajdin and Gayadin lived together. DW-IV, Ram Chandra, stated that he is not aware whether Gayadin had installed any hand pump. He was found to be relative of defendant, Narendra Singh. 13. Therefore, the trial court decided issue nos.7 and 8 in negative and issue no. 3 in favour of plaintiff and allowed the application paper no. 181-C under Order 32 C.P.C holding that the suit has rightly been instituted through the next friend, Surajdin, by the plaintiff and it should proceed. 14. Regarding issue nos.1, 2 and 5, the trial court recorded the finding that in view of the findings given regarding issue nos.3, 7 and 8 at the time of execution of disputed sale deeds the plaintiff was not in fit mental condition to execute the sale deed. 15. Issue no. 9 was decided by the trial court holding that the sale deed dated 04.07.94 executed by the defendant nos. 1 & 2, Dashrath Singh and Narendra Singh, in favour of Smt. Bitola Devi was not bona-fide and Smt. Bitola Devi was not bonafide purchaser of the property for value. 16. Regarding issue no. 4, the trial court held that suit is not barred by the principle of acquiesance and estoppel. 17. Regarding issue no. 6, the trial court held that sale deeds in dispute were executed without payment of any sale consideration. Therefore, the suit was decreed and the trial court ordered cancellation of all the disputed sale deeds. 18. The defendant nos. 1 and 2 preferred Civil Appeal no. 17 of 1998 which was dismissed by the judgment and decree dated 17.09.1999 hence this second appeal. Therefore, the suit was decreed and the trial court ordered cancellation of all the disputed sale deeds. 18. The defendant nos. 1 and 2 preferred Civil Appeal no. 17 of 1998 which was dismissed by the judgment and decree dated 17.09.1999 hence this second appeal. During the pendency of Civil Appeal the defendant nos.1 & 2 filed an application for getting the medial examination or mental condition of plaintiff by a team of expert docors which was rejected. 19. This appeal was admitted on 22.12.1999 for consideration of the following substantial questions of law: (a) Whether decree of courts below are legally sustainable when the Mandatory provisions of Order 32, Rule 15 C.P.C has not been followed? (b) Whether in the absence of Judicial inquiry as contemplated under 0rder 32 Rule 15 C.P.C, decrees of courts below are legally vitiated and liable to be set aside. (c) Whether the order of the learned Additional District Judge, rejecting the application moved on behalf of defendants for examination of the plaintiff by Medical Board of Experts is sustainable in law? 20. Learned senior counsel for the defendant-appellant has submitted that the judgments passed by both the courts below are not in accordance with the Order 32, Rule 15 C.P.C which is mandatory in nature. The trial court was required to conduct judicial inquiry before proceeding with the suit and the finding that the question of mental fitness of the plaintiff can be decided along with the suit was not in accordance with the law. 21. The suit was instituted in the year 1992 by elder brother of the plaintiff, Surajdin, as next friend of the plaintiff, without any order of the court, when plaintiff had become unsound mind six months prior to institution of suit. After the written statement was filed that the plaintiff was of sound mind when the sale deed was executed an amendment was sought in the plaint that plaintiff was schizophrenic since child hood. Doctors who appeared as PW-IV and PW-V before the Trial Court were not neurologist or psychiatrist and had no specialised knowledge about mental illness and were not competent to depose about the mental condition to the plaintiff. In the joint sale deed of the plaintiff with his brother Surajdin, brought on record by the defendants, there was no recital about mental illness and unsoundness of the mind of the plaintiff. In the joint sale deed of the plaintiff with his brother Surajdin, brought on record by the defendants, there was no recital about mental illness and unsoundness of the mind of the plaintiff. Before the Appellate Court an application was made by the defendants dated 22.08.1999 praying that question of mental condition of the plaintiff be decided by medical board of qualified doctors but it was rejected by the trial court. He has relied upon the following judgments: (1) S. Chattanatha Karayalar vs. Vaikuntarama Karayalar, AIR 1968 Mad 346 (2) Duvvuri Papi Reddi and Others vs. Duvvuri Rami Reddi, AIR 1969 A.P. 362 (3) Syed Hassan Baffakki Thangal and Others vs. Kalliath Thazha Chirutha and Others, AIR 1988 Ker 160 (4) Jhabarmal Panda vs. Bhagwati Prasad Kedia, AIR 1990 Gau 35 (5) Khokha Rai vs. XIIth Additional District Judge, Allahabad, AIR 1999 All 160 (6) Kasturi Bai and Others vs. Anguri Chaudhary, (2003) 3 SCC 225 (7) Shakunthala Devi vs. K.S. Naidu and Another, AIR 2005 Mad 56 (8) Km. Sarita Devi D/o Ram Shankar Tiwari vs. Ram Babu alias Ram Prakash Son of Sri Lallu, 2006 (65) ALR 518 (9) Krishnankutty S/o Madhavan vs. Veena M.G.M. D/o Girjkumari, AIR 2014 Gau 50 (10) Sri Binoy Bhusan Choudhary and Others vs. Rekha Rani Deb and Others, AIR 2014 Gau 50 22. Learned counsel for the plaintiff-respondents has supported the judgments of the courts below and has submitted that courts below have rightly found that the plaintiff was of unsound mind and not capable of taking decision at the time of execution of disputed sale deeds. He has further submitted that the mala-fide on the part of the defendants was clear from the fact that they executed sale deed dated 07.04.1994 in favour of defendant no. 3, Smt. Batola Devi, during the pendency of suit and operation of injunction order. The defendants failed to prove by leading any reliable evidence that the plaintiff was not suffering from any mental illness or infirmity at the time execution of the disputed sale deed dated 04.07.1992. He has further submitted that the prayer for medical examination of the plaintiff by the board of medical experts was made at the Appellate stage by the defendants and no such prayer was made before the trial court. The Appellate Court rightly rejected such a prayer made on behalf of the defendants. He has further submitted that the prayer for medical examination of the plaintiff by the board of medical experts was made at the Appellate stage by the defendants and no such prayer was made before the trial court. The Appellate Court rightly rejected such a prayer made on behalf of the defendants. He has relied upon the following judgments: (1) K. Kumar vs. Onkar Nath, AIR 1972 All 81 (2) Raj Kumar vs. Rameshchand, (1999) 8 SCC 29 (3) Nagaiah and Another vs. Chowdamma (Dead) by Legal Representatives and Another, (2018) 2 SCC 504 23. Substantial question of law nos. (a) and (b) are being decided together. First of all the authorities cited at bar are required to be considered. 24. In the judgment of in case of S. Chattanatha Karayalar (Supra), relied upon by the learned Senior Counsel for defendant-appellant, Madras High Court held that the court cannot dispense with judicial inquiry contemplated under order 32 Rule 15 C.P.C to arrive at clear finding that the person concerned by reason of his infirmity, either mental or physical, is incapable of protecting his interest in the suit. 25. Further reliance on the judgment of Duvvuri Papi Reddi and Others (Supra) has been made wherein Andhra Pradesh High Court held that the issue of the person concerned being minor or incapable of protecting his interest on account of any mental infirmity is required to be decided as preliminary issue after judicial inquiry. 26. In the case of Syed Hassan Baffakki Thangal and Others (Supra), the Kerala High Court has held that where the plaintiff was only a dumb person and not an idiot the Court ought not to have accepted the plaint without conducting an inquiry in accordance with Order 32, Rule 15 C.P.C. 27. In the case of Jhabarmal Panda Vs. Bhagwati Prasad Kedia (Supra) Gauhati High Court held that Rule 15 of Order 32 C.P.C contemplates two kinds of cases first where a person is already adjudged to be of unsound mind as defined under the Lunacy Act. The second, where persons who are of unsound mind and are not so adjudged by the Court by means of inquiry by the court before proceeding with the suit. 28. The second, where persons who are of unsound mind and are not so adjudged by the Court by means of inquiry by the court before proceeding with the suit. 28. This court in the case of Khokha Rai (Supra) held that the applicant has to establish prima facie that defendant was of unsound mind and inquiry shall also be initiated when material evidence is produced before the court. 29. The Apex Court in the case of Kasturi Bai and Others (Supra), the Apex Court found that respondent in the case himself filed an application before trial court for holding an inquiry to find out that she suffers from mental infirmity but the trial court refused the same. The Apex Court disbelieved the orders of High Court which appointed guardians of the respondent without any inquiry by the trial court. 30. In the case of Shakunthala Devi (Supra) the Madras High Court held that as per Order 32, Rule 15 CPC persons of unsound mind should be examined by the High Court in open court or in chamber in the presence of medical expert after compelling the attendance of alleged lunatic before it. 31. This Court in the case of Km. Sarita Devi (Supra) held that the court is required to hold an inquiry regarding unsoundness of mind and without inquiry the court cannot come to the conclusion regarding unsoundness of mind of party to the suit. 32. The Kerala High Court in the case of Krishnankutty S/o Madhavan (Supra) held that for a suit against a person of unsound mind, the request should be made to appoint a guardian and not a next friend to represent such defendant. 33. The Gauhati High Court in the case of Sri Binoy Bhusan Chaudhary (supra) held that court cannot accept a person to be unsound mind only because he has been described as such in the pleadings. It is required to be determined after due inquiry. The provision is mandatory, it is not just a procedural provision. It requires judicial exercise by the court to determine whether such person is really unsound mind or not. 34. It is required to be determined after due inquiry. The provision is mandatory, it is not just a procedural provision. It requires judicial exercise by the court to determine whether such person is really unsound mind or not. 34. On the other hand, learned counsel for the plaintiff-respondents has relied upon the judgment of this court K. Kumar vs. Onkar (Supra) wherein in Para 6 this Court held that there is distinction between the suit filed on behalf of minor through next friend and a suit filed against the minor. In cases where the suit is filed on behalf of minor, no permission or leave of a court is necessary by the next friend for filing the suit. However, where the suit is filed against the minor, it is obligatory for the plaintiff to get a proper guardian appointed by the court. He has submitted that the provisions under Order 32 Rule 15 C.P.C which are applicable to minor or also applicable to a person of unsound mind in view of Rule 15 thereof. 35. He has placed further reliance on the judgment of the Apex Court in the case of Nagaiah and Another (supra) wherein the procedure, under order 32 Rule 1-3 have been considered and the ratio laid down in the case of K. Kumar (supra) by this Court has been reiterated to the effect that where the suit is filed on behalf of the minor no leave of the court is required but if it is filed against the minor leave is certainly required. 36. The other judgment relied by the counsel for the plaintiff-respondents is Raj Kumar (Supra) wherein the Apex Court in the rent proceedings upheld the order of appointment of guardian of a mental retarded person at the appellate stage. 37. After going through the authorities placed before this court and the submissions of the learned counsel for the parties, this court finds that the order 32, Rule 15 C.PC prior to amendment by Act No. 104 of 1976 (w.e.f. 1-2-1997) was as follows: “15. 37. After going through the authorities placed before this court and the submissions of the learned counsel for the parties, this court finds that the order 32, Rule 15 C.PC prior to amendment by Act No. 104 of 1976 (w.e.f. 1-2-1997) was as follows: “15. The provisions contained in rules 1 to 14, so far as they are applicable shall extend to persons adjudged to be of unsound mind and to person who, though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.” 38. After passing of Act no. 104 of 1976, w.e.f. 2-2-1997 Order 32, Rule 15 C.P.C is as follows: “Rules 1 to 14 (except Rule 2-A) shall, so far as may be, apply to the persons adjudged, before or during the pendency of suit, to be of unsound mind and shall also be apply to persons who, though not so adjudged, are found by the Court on inquiry to be incapable, by reasons of any mental infirmity, of protecting their interest when suing or being sued.” 39. A perusal of Order 32, Rule 15, CPC prior to amendment of 1977 shows that it is silent regarding the stage of inquiry into the unsoundness of mind or mental infirmity of any party to a suit. Therefore, the Courts never interpreted the provision as requiring the court to conduct preliminary inquiry regarding the unsoundness of mind of a party to the suit before the proceedings with the suit as a whole. The authorities cited by the learned Senior Counsel for the defendant-appellant have also not interpreted that the issue of unsoundness of mind of a party to suit should be decided before proceeding with the suit. 40. A perusal of the provision of Rule 15 to order 32 post 1977 amendment shows that it provides that the court can conduct the inquiry regarding unsoundness of mind of any party to the suit before or during the pendency of suit. In the present case the court has adjudged the mental incapacity of the plaintiff on account of unsoundness of mind during the pendency of suit by framing issue no. 8. In view of the amended provision of Rule 15 of Order 32 CPC this cannot be said to be against the provision of law. In the present case the court has adjudged the mental incapacity of the plaintiff on account of unsoundness of mind during the pendency of suit by framing issue no. 8. In view of the amended provision of Rule 15 of Order 32 CPC this cannot be said to be against the provision of law. The amended provision authorised the court clearly to decide this issue even during the trial, if the court had not done so prior to commencement of the trial. Therefore, argument of learned Senior Counsel for the appellant cannot be sustained. The judgments of the cases cited before this court nowhere provide that in the absence of preliminary inquiry regarding unsoundness of mind of a party to the suit, the proceedings would get vitiated and it would be violation of mandatory provision of Order 32, Rule 15 CPC. A perusal of the judgment of the trial court shows that application (Paper no. 181-c) was filed before the trial court at the age of arguments praying that permission may be granted to Surajdin to contest the suit on behalf of next friend to Gayadin since Gayadin is mentally unsound and at the time of execution of disputed sale deed was not in position to protect his rights and interest. The trial court relied upon the judgment of this court in the case of K. Kumar (Supra) where this court held that where a suit is instituted by a minor through next friend for protection his interest against a person acting against his interest then no permission for being appointed as guardian is required. However, if the suit is instituted against the minor then the permission of the court is required for appointment of next friend/guardian of the minor. It goes without saying as per Order 32, Rule 15, CPC the Rules 1 to 14 of Order 32 CPC applicable to minors apply to person of unsound mind also. Therefore, while deciding the suit the trial court decided application for appointment of next friend to the plaintiff. It had considered the evidence on record and has recorded the finding that the plaintiff was of unsound mind at the time of execution of disputed sale deed. The first appellate court has re-appreciated the evidence led before the trial court and has arrived at the same finding. Therefore, the substantial questions of law nos. It had considered the evidence on record and has recorded the finding that the plaintiff was of unsound mind at the time of execution of disputed sale deed. The first appellate court has re-appreciated the evidence led before the trial court and has arrived at the same finding. Therefore, the substantial questions of law nos. (a) and (b) are decided holding that the mandatory provision of Order 32, Rule 15 CPC was followed by the courts below and judicial inquiry contemplated therein was conducted while deciding issue no. 8 in the suit. The argument of learned Senior Counsel for the defendant-appellant that the inquiry contemplated under Order 32, Rule 15 CP.C should have been conducted before proceeding with the suit as a whole is not in accordance with law. Rule 15 CPC clearly provides that such an inquiry can be conducted before or during pendency of suit. Admittedly, in the present case the inquiry was conducted by the trial court during the pendency of suit. Since suit was instituted by the plaintiff, who was of unsound mind, though his next friend, against the defendant nos.1 & 2. 41. Regarding substantial questions of law no. (c), this count finds that the defendant nos. 1 & 2 filed their objection to the application (paper no. 181-c) of the plaintiff by means of application (paper no. 184-C) objecting to the prayer of the plaintiff for appointment of Surajdin as next friend of plaintiff. In the aforesaid objection they never prayed for medical examination of the plaintiff by medical board of doctors. The trial court has already framed issue no. 8 to the effect whether plaintiff has always been a person of healthy mind and understanding and he is same as yet. Therefore, the defendants were aware about the requirement of evidence on issue no. 8. They could have made such a prayer of examination of plaintiff by medical board at that time, but they failed. At the first appellate state, they moved an application which was rejected. Therefore, it cannot be said that the defendants never got opportunity to pray for getting medical examination of the plaintiff conducted by medical board of expert doctors. Both the counsels for the parties admit that the plaintiff has died during the pendency of litigation. At the first appellate state, they moved an application which was rejected. Therefore, it cannot be said that the defendants never got opportunity to pray for getting medical examination of the plaintiff conducted by medical board of expert doctors. Both the counsels for the parties admit that the plaintiff has died during the pendency of litigation. Therefore, even if this court finds that the application moved by the defendants for examination of the plaintiff by medical board of expert was wrongly rejected by the first appellate court, this court cannot allow the same when plaintiff is dead. Accordingly substantial question no. (c) is decided against the defendants-appellants. 42. In view of the answers to the aforesaid substantial questions of law this appeal fails. The judgments and decree passed by the courts below do not suffer from any illegality and are confirmed. 43. The second appeal is dismissed with costs.