Kerala High Court
Jayachandran vs R.Vijayaleskhmi Amma on 7 August, 2025
RFA 503/2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
RFA NO. 503 OF 2012
OS NO.250 OF 2006 OF SUB COURT, MAVELIKKARA
APPELLANT/DEFENDANT
JAYACHANDRAN, THUNDIYIL KIZHAKKATHIL,
VALATHUNKALCHERI, IRAVIPURAM VILLAGE, KOLLAM
DISTRICT.
BY ADVS.
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SMT.NAVA VARGHESE
RESPONDENTS/PLAINTIFFS
1 R.VIJAYALESKHMI AMMA
W/O G. HARIKRISHNAN, THARAYIL VELIKKATHU, CHINGOLI
P.O., ALAPPUZHA DISTRICT:690 532.
2 G.HARIKRISHNAN, THARAYIL VELIKKATHU, CHINGOLI
P.O., ALAPPUZHA DISTRICT:690 532.(REPRESENTED BY
1ST PLAINTIFF.
BY ADVS.
SRI.B.BIPIN
SRI.R.REJI
SHRI.M.V.THAMBAN
SMT.THARA THAMBAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY
HEARD ON 18.7.2025, THE COURT ON 07.08.2025 DELIVERED
THE FOLLOWING:
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C.R.
JUDGMENT
Dated : 7th August, 2025
The defendant in OS 250/2006 on the file of the Subordinate Judge’s Court,
Mavelikkara, is the appellant. (For the purpose of convenience, the parties are
hereafter referred to as per their rank before the trial court.)
2. The 1st plaintiff is the wife of the 2nd plaintiff. The 1st plaintiff filed
the suit on behalf of the 2nd plaintiff as his next friend on the ground that he is of
unsound mind. The suit is for declaration and consequential injunction. The plaint
schedule properties belong to the 2nd plaintiff which he obtained as per Ext.A3
partition deed No.1373/1997. As per the plaint averments, the 2 nd plaintiff is
suffering from unsoundness of mind since 15.9.1992. He was treated in different
hospitals such as Mental Health Centre, Thiruvananthapuram, Medical College
hospital, Alappuzha, Nakkada hospital, Ramanchira, Thiruvalla and St.Gregorious
hospital, Parumala. The 2nd plaintiff’s parents died in the year 1992 and 1994
respectively and their death aggravated his mental condition. Thereafter his
condition became worse and he became violent towards the 1 st plaintiff on several
occasions. Because of his mental condition, he could not even show love and
affection towards his wife and children and as a result of which they left the 2 nd
plaintiff and started residing at her paternal home. Taking advantage of the illness
of the 2nd plaintiff and the absence of the 1 st plaintiff along with him, the defendant
colluded with others and fraudulently created Ext.A5(B7) sale deed No.1146/1999
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of Keerikkad Sub Registry in respect of plaint B scheduled property. The property
situated by the side of Harippad – Kayamkulam road. The total consideration for
the entire 35 cents of plaint schedule property shown in the document was
Rs.35,000/-. Though the said property is situated within the limits of Cheppad Sub
Registrar office, the document was registered at Keerikkad Sub Registrar’s office
(SRO). Though 2.02 Ares of land comprised in Keerikkad SRO was shown as
security property, the said SRO had no jurisdiction to execute the above sale deed.
The Sub Registrar, Keerikkad, has not conducted proper enquiry before permitting
registration of the sale deed. The 1st plaintiff filed a suit as OS.456/1999 before the
Munsiff’s Court, Kayamkulam for maintenance for herself and children and
obtained an order of attachment of the plaint A scheduled property with the
intention to secure the said property from alienation. Alleging that the defendant is
taking hasty steps to alienate the ‘B’ schedule property, she preferred the present
suit seeking declaration that Ext.A5 sale deed No.1146/1999 of Keerikkad Sub
Registry executed by the 2nd plaintiff in favour of the defendant is null and void
and also for a consequential injunction against the defendant.
3. The defendant filed a written statement denying the averments in the
plaint and contending that the 2nd plaintiff was not suffering from any mental
illness and also that he had executed the sale deed after receiving valid
consideration. It was also contended that, in the family partition the 2 nd plaintiff
joined as a party and further contended that the 1 st plaintiff herself filed a suit
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against the 2nd plaintiff in his personal capacity. Therefore, according to the
defendant, there is no merit in the argument that the 2 nd plaintiff was suffering from
any kind of mental illness. Therefore, he prayed for dismissing the suit.
4. The trial court framed five issues. The evidence in the case consists
of the oral testimonies of PWs1 to 6, DW1, Exts.A1 to A7, B1 to B8 and X1 series.
After appreciating the evidence on record, the trial court decreed the suit, set aside
Ext.A5 sale deed, decreed the 2nd plaintiff’s title over the plaint B schedule property
and also restrained the defendant from executing any document in respect of plaint
‘B’ scheduled property. Being aggrieved by the above judgment and decree of the
trial court, the defendant preferred this appeal raising various grounds.
5. Now the points that arise for consideration are the following :
i) Whether sale deed No.1146/1999 of Keerikkad sub registry was executed
by the 2nd plaintiff when he was of unsound mind?
ii) Whether the impugned judgment and decree of the trial court calls for
any interference, in the light of the grounds raised in the appeal ?
6. Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel
for the appellant and Sri.R.Reji, the learned counsel for the respondents/plaintiffs.
7. The points :- The plaint ‘A’ schedule property consisting of 25.67 ares
of land and the residential building was obtained by the 2nd plaintiff as per Ext.A3
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partition deed. The subject matter in dispute in this case is the plaint ‘B’ schedule
property, which is part of the plaint ‘A’ schedule having an extent of 14.16 ares,
excluding the residential building. Ext.A5(B7) is the sale deed No.1146/1999 of
SRO, Keerikkad dated 19.5.1999 executed by the 2 nd plaintiff in favour of the
defendant. The case of the plaintiffs is that at the time of executing Ext.B7 sale
deed, the 2nd plaintiff was suffering from mental illness, incapable of understanding
the nature and consequences of his deeds and as such Ext.A5(B7) sale deed is null
and void. On the other hand, according to the defendant, the 2 nd plaintiff was not
suffering from any such mental ailments and according to him, Ext.B7 is a valid
document executed by the 2nd plaintiff after receiving valid consideration.
8. In support of the argument that the 2 nd plaintiff was suffering from
mental illness, the learned counsel for the plaintiffs invited my attention to Ext.A1
series, A2, A4, A6 and A7 documents as well as the evidence of PWs1 and 3 to 6.
On the other hand, the learned counsel for the appellant would argue that on
different occasions, the 2nd plaintiff had executed other documents and other suits
were also instituted against the 2nd plaintiff in his personal capacity. He has also
relied upon Ext.X1 case sheet issued from Mental Health Centre,
Thiruvananthapuram to substantiate his contention that during the period when
Ext.B7 sale deed was executed, the petitioner was in a sound disposing state of
mind.
9. PW5 was the Superintendent, Mental Health Centre and Psychiatrist
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who produced the Ext.X1 case sheet in respect of the treatment given to the 2 nd
plaintiff. From the evidence of PW5 and from Ext.X1 series it is revealed that at
first, the 2nd plaintiff was treated in the said hospital as an inpatient from 7.8.1996
to 12.12.1996. Thereafter, he was treated as an outpatient in the said hospital on
15.1.1997, 7.2.1997, 18.4.1997, 20.8.1997 and 23.1.1998. According to PW5, after
23.1.1998, the 2nd plaintiff was admitted in the Mental Health Centre only on
10.5.2001 and the last follow up treatment given was on 5.9.2011. According to
PW5, the 2nd plaintiff was suffering from bipolar mood disorder which is a severe
mental illness and it is a variation of the emotion of the patient. However, during
the cross-examination he clarified that he cannot state the mental condition of the
patient as on 19.5.1999, while executing Ext.B7 sale deed. He further deposed
during cross-examination that during intervals of illness the patient can behave
normally.
10. PW6 was the RMO of Alappuzha Medical College hospital who
proved Ext.A7 medical records relating to the treatment of 2nd plaintiff and Exts.A8
and A9 are the prescriptions issued from the Psychiatric department of the hospital.
As per the records the 2nd plaintiff was treated in the said hospital on 23.7.2003 and
then on 27.7.2006. As per Ext.A9 the patient had only mild disability. From Ext.X1
series case sheet, it can also be seen that during the period 2002-2003, he was
treated in the Mental Health Centre, Thiruvananthapuram, and on 12.12.2002, the
2nd plaintiff was found fit for discharge and also fit to stand trial. Again, in June
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2003, the doctor recorded that the 2nd plaintiff was fit for discharge and also fit to
stand trial in a criminal case registered against him. In Ext.A4 certificate dated
10.8.2006 issued from the Mental Health Centre, Thiruvananthapuram, it is stated
that the 2nd plaintiff was suffering from bipolar mood disorder and that it amounts
to more than 40% disability. In the Ext.A6 certificate issued by the Medical Board
on 19.11.2007 it is stated that the 2nd plaintiff is unable to earn his living.
11. Relying upon Exts.X1,A7, A8 and A9 and also the evidence of PWs5
and 6, the learned counsel for the appellant would argue that, even as per the
medical records, the 2nd plaintiff had mental illness only intermittently and not
continuously. He would argue that in this case there is no evidence to show that
during the period between 23.1.1998 and 10.5.2001, the 2nd plaintiff was suffering
from any mental illness. It is true that, as per the medical records produced in this
case, after the 2nd plaintiff was treated in the Mental Health Centre,
Thiruvananthapuram on 23.1.1998, he was admitted in the hospital only on
10.5.2001. In other words, there is no evidence in this case to show that in between
the period from 23.1.1998 and 10.5.2001, the 2 nd plaintiff was treated in any
hospital, for mental illness.
12. The learned counsel for the appellant relying upon Section 12 of the
Indian Contract Act would argue that even patients suffering from mental illness
occasionally can enter into contracts during the period in which he was not
suffering from any such ailments. Section 12 of the Indian Contract Act reads as
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follows :-
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
sound mind, but occasionally of unsound mind, may not make a contract
when he is of unsound mind.
(a) A patient in a lunatic asylum, who is, at intervals, of sound mind, may
contract during those intervals.
(b) A sane man, who is delirious from fever, or who is so drunk that he
cannot understand the terms of a contract, or form a rational judgment as
to its effect on his interests, cannot contract whilst such delirium or
drunkenness lasts.
13. From the above provision it is clear that even a person suffering from
unsoundness of mind can make a contract, as and 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. Therefore, now the question to be considered is whether the 2 nd plaintiff was
of sound mind when he executed Ext.A5(B7) sale deed.
14. One of the circumstances relied upon by the learned counsel for the
appellant is the execution of Ext.A3 partition deed by the 2 nd plaintiff along with
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his siblings and failure of the plaintiffs to challenge its execution. As argued by the
learned counsel for the appellant, on 23.6.1997 the 2 nd plaintiff along with his
sisters executed Ext.A3 partition deed No.1373/1997. It was on the basis of the
said partition deed, the 2nd plaintiff obtained title over the plaint ‘A’ schedule
property consisting of 25.67 Ares. It is interesting to note that in the Ext.A3
partition deed nobody represented the 2nd plaintiff and he had independently
participated and signed in the Ext.A3 partition deed. Though in the Ext.A3
partition deed there was nobody to represent the 2 nd plaintiff, so far the plaintiffs
have not challenged the validity of Ext.A3. Though PW1 claimed that Ext.A3
partition deed executed by the 2nd plaintiff along with his sister was challenged by
filing a suit, no such documents were produced. Since, any such documents were
produced to prove that she had challenged the execution of Ext.A3, an adverse
inference is liable to be drawn to the effect that no such challenge was made
against Ext.A3. In the above circumstances, it is to be presumed that the plaintiffs
admit that at the time of executing Ext.A3 on 23.6.1997, the 2 nd plaintiff was of
sound mind.
15. Another circumstances relied upon by the learned counsel for the
appellant is the suit O.S.456 of 1999 filed against the 2nd plaintiff herein. Ext.B3 is
the certified copy of the plaint in OS 456/1999 on the file of the Munsiff’s Court,
Kayamkulam filed by the 1st plaintiff herein and her minor children on 12.8.1999
against the 2nd plaintiff seeking maintenance. In the above suit also, the 2 nd plaintiff
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was sued in his personal capacity and in that suit the 1 st plaintiff herein had no case
that the 2nd plaintiff was suffering from any mental illness. The above conduct of
the 1st plaintiff in filing Ext.B3 suit against the 2nd plaintiff, further goes to show
that the plaintiffs admit that at the time of filing Ext.B3 suit on 12.8.1999, the 2nd
plaintiff was of sound mind.
16. Filing of the suit O.S.222 of 2001 is yet another circumstance
brought to my attention by the learned counsel for the appellant. Ext.B4 is the
certified copy of the plaint in OS. 222/2001 on the file of the Munsiff’s Court,
Haripad filed by the defendant herein against plaintiffs 1 and 2 herein and another
person. In the above suit also, the 2 nd plaintiff was independently sued, without any
court guardian. The plaint schedule property in Ext.B4 suit is the plaint ‘B’
schedule property herein. In Ext.B4 suit also the 1st plaintiff herein had not taken a
contention that the 2nd plaintiff was suffering from unsoundness of mind.
17. The suit OS 354/2001 filed by one Sudhakaran against the 2 nd
plaintiff and the claim petition filed by the 1st plaintiff herein in that suit were two
other circumstances highlighted by the learned counsel for the appellant. Ext.B1 is
the certified copy of the plaint in OS 354/2001 on the file of the Munsiff’s Court,
Haripad above referred. Ext.B2 is the certified copy of the claim petition filed by
the 1st plaintiff herein in Ext.B1 suit. In Ext.B2 claim petition, the 1st plaintiff
herein had no case that the 2nd plaintiff was suffering from unsoundness of mind.
Therefore, the plaintiffs are indirectly admitting that during the period from
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1.11.2001, the date of filing Ext.B1 suit, till 27.11.2004, the date of Ext.B2 claim
petition also, the 2nd plaintiff was of sound mind.
18. The most interesting aspect is that, in Ext.B2 claim petition, the
property already sold to the defendant as per Ext,A5 was expressly excluded by the
1st plaintiff. In the property description in Ext.B2 claim petition it was specifically
admitted that, out of 25.67 ares of property obtained by the 2nd plaintiff, 14.16 ares
was already sold and the remaining 11.51 ares alone was stated to be belonging to
the 2nd plaintiff. Therefore, in Ext.B2 claim petition, the 1 st plaintiff specifically
admits the execution of Ext.B7 sale deed executed by the 2nd plaintiff in favour of
the defendant. Ext.B2 claim petition was filed by her on 27.11.2004 while the
present suit was filed only on 19.12.2006, more than two years after the filing of
Ext.B2, recognising the execution of Ext.B7 in favour of the defendant. For the
said delay of more than two years after filing Ext.B2, there is no explanation.
19. Existence of a prohibitory injunction against the plaintiffs herein and
hence the necessity of a prayer for recovery of possession for the maintainability of
the suit were also highlighted by the learned counsel for the appellant. Ext.B5 and
B6 are the certified copy of the judgment and decree in O.S. 222/2001. As per the
above judgment and decree, the plaintiffs herein have been restrained from
trespassing into the plaint scheduled property therein, which is the plaint B
scheduled property herein and also from committing mischief in the said property.
In the light of the above injunction against plaintiffs 1 and 2 herein, the learned
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counsel for the appellant would argue that in the absence of a prayer for recovery
of possession, a simple suit for declaration will not lie.
20. On the other hand, the learned counsel for the plaintiffs would argue
that the above decree was an ex parte decree and that the decree passed against a
person suffering from mental illness is a nullity and hence it will not bind the 2nd
plaintiff. Relying upon the decision of a Full Bench of this Court in Pankajaksha
kurup v. Fathima, 1998 KHC 122, the learned counsel would argue that a decree
passed against a minor without a guardian is a nullity and void and not merely
voidable. It was further argued that the above dictum applies in the case of a
lunatic also in view of Order XXXII Rule 15 CPC. Therefore, according to him,
Ext.A5 executed by the 2nd plaintiff is to be treated as a void document.
21. Even if it is assumed that the 2nd plaintiff did not contest the above
suit as he was suffering from unsoundness of mind, there is no such justification
for the 1st plaintiff. If there was any bonafides on the part of the 1 st plaintiff in her
contention that the 2nd plaintiff was suffering from unsoundness of mind, she could
have appeared in that suit and informed the court about the same. Failure to take
such a contention in Ext.B4 suit and conceding Ext.B5 and B6 judgment and
decree in O.S. 222/2001 shows lack of bonafides on her part. So far, the plaintiffs
have not challenged the above decree and judgment and as such it became final. In
the above circumstance, Ext.B5 and B6 judgment and decree in O.S. 222/2001
against the plaintiffs could not be simply ignored as submitted by the learned
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counsel, but it is valid and binding on them.
22. Section 34 of the Specific Relief Act, 1963, reads as follows :-
34. Discretion of court as to declaration of status or right.– Any
person entitled to any legal character, or to any right as to any property,
may institute a suit against any person denying, or interested to deny, his
title to such character or right, and the court may in its discretion make
therein a declaration that he is so entitled, and the plaintiff need not in
such suit ask for any further relief:
Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title,
omits to do so.
Explanation.–A trustee of property is a “person interested to
deny” a title adverse to the title of some one who is not in existence, and
whom, if in existence, he would be a trustee.
23. As per the above provision, where the plaintiff was able to seek
further relief than a mere declaration, the court shall not make any such
declaration. In the decision in Sundarangan and Another vs.L.Joys and Others,
2017 KHC 932, a learned Single Judge of this Court held in paragraph 15 as
follows :
“When recovery of possession of any portion of the plaint schedule
property found in the possession of the defendants has not been sought
for, no declaration of possession can be granted within the meaning of
the proviso to Section 34 of the Specific Relief Act.
24. In the decision in Raveendran Nair v. Bhaskaran (Died), 2024
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KHC 34, another Single Bench of this Court held in paragraph 15 as follows :-
“Thus it is the trite law in terms of S.34 of the Specific Relief Act
that when there is a Suit for declaration of title in respect of a property,
which is not in possession of the plaintiff, the Suit must be one for
declaration of title and recovery of possession. If the relief of recovery of
possession is omitted to be asked for, in view of the proviso to S.34 of the
Specific Relief Act, the Suit must fail for the sole reason. In such Suits, the
Court is powerless to grant either the relief of declaration of title or
recovery of possession or both reliefs in any manner.”
25. In the decision in Ram Saran v. Ganga Devi, (1973) 2 SCC 60, the
Apex Court also held in a similar situation that in the absence of a prayer for
recovery of possession, a suit filed for declaration alone is not maintainable. In the
instant case, as revealed from Exts.B5 and B6 judgment and decree, the defendant
is in exclusive possession of the plaint B schedule property and the plaintiffs were
even restrained by a permanent prohibitory injunction from trespassing into the
said property. Since the plaintiffs have not challenged Exts.B5 and B6 judgment
and decree, they became final. So long as the above judgment and decree are in
force, they could not lawfully enter the plaint B scheduled property. In the above
circumstance, a prayer for recovery of possession of plaint ‘B’ schedule property
was highly necessary in this case. Even then, the plaintiffs have not claimed the
relief of recovery of possession and as such, in the light of Section 34 of the
Specific Relief Act, the present suit filed for declaration alone is not maintainable
also.
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26. With regard to the burden of proof in a case in which a document is
challenged on the ground that the executant was unsound, a Division Bench of this
Court in Mariam v. Varghese, 1965 KLT 692 held in paragraph 7 as follows :-
“When a transaction is impeached on the ground that the
executant was a man of unsound mind, the initial onus lies on the person
who sets up the plea that the executant was of unsound mind. If there is
sufficient evidence to prove that the person has been adjudged under the
Lunacy Act to have been a lunatic or if there is other sufficient evidence
to show that a person had at a certain stage been of unsound mind, the
burden shifts to the person who alleges his sanity. The mere proof of a
solitary fact that on the day when the impeached conveyance was being
executed the executant did not show any signs of insanity would not be
sufficient to demonstrate that the person had been acting as a normal
man during a lucid interval. The evidence in the case has to be
considered in the light of these principles. ”
27. Relying upon various decisions including the decision in Mariam
(supra), a learned Single Judge of this Court in the decision in Kunhalima v.
Mahammed , 2024 KLT OnLine 1616, held that there is always a presumption in
law in favour of sanity. Since there is such a presumption, a person who alleges
unsoundness of mind has to prove it sufficiently to satisfy the test. Thereafter, in
paragraph 14 the learned Single Judge held that :
“14. Once it is established that a person is of unsound mind, the
onus shifts to the person, who alleges that the document was executed
during a lucid interval to prove the same. In other words, if it is shown
that a person is of unsound mind usually, the burden of proving that at the
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time of contract, he was of sound mind, lies on the person who affirms
it….”
28. A learned Single Judge of this Court in the decision in Zenith and
Another v. Sakkir Hussain and Others, 2015 (4) KHC 327, in paragraph 7 held
as follows :-
“…..It is thus clear that even a person who is usually of sound
mind, but occasionally of unsound mind, can enter into a contract when
he is of sound mind. Previous or subsequent mental disorders may not be
material except to create a suspicion as to the likelihood of such disorder.
The question whether a contract is invalid due to unsoundness of mind
depends on the fact as to whether the person was capable of
understanding the contract and of forming a rational judgment as to its
effect upon his interests.”
29. From the above decisions it is clear that there is always a
presumption in law in favour of sanity. Since there is such a presumption, the
burden is on the person who alleges unsoundness of mind to prove the same. At the
same time, once it is established that a person is of unsound mind, the onus shifts
to the person, who alleges that the document was executed during the time when
he was of sound mind.
30. The main ground raised by the learned counsel for the
respondents/plaintiffs is that though the plaint scheduled property situated within
the limits of Cheppad Sub Registry, the document was executed in Keerikkad, in
violation of Section 28 of the Registration Act. It is true that from the evidence of
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PW1, the Village Officer, it is revealed that the 2nd plaintiff had no property in
Keerikkad village. Therefore, it is true that in the instant case in respect of
registration of Ext.B7 sale deed there was violation of Section 28 of the
Registration Act.
31. The learned counsel for the respondents/plaintiffs further argued that
the scheduled property was sold for a grossly inadequate price of Rs.1,000/- per
cent. According to the learned counsel, it was a strong circumstance probabilising
the case of the plaintiffs that the 2nd plaintiff was not capable of taking rational
decision at the time of execution of Ext.B7. It is true that in Ext.B7 the
consideration shown is only Rs.35,000/- for an extent of 35 cents of property. The
specific case of the defendant is that though the consideration shown in the
document is only 35,000/- the actual consideration paid was Rs.3,00,000/-. During
the cross-examination of the 1st plaintiff as PW2, when she was asked about the
actual consideration paid by the defendant to the 2nd plaintiff, she pleaded
ignorance. At the same time, she deposed that she had never asked the 2 nd plaintiff
about the price actually received while executing Ext.B7. According to her, the 2 nd
plaintiff is not even aware of the present suit. Since PW2 admitted that she had not
asked the 2nd plaintiff about the actual consideration received from the defendant,
in spite of the contention that a sum of Rs.3,00,000/- was the actual consideration
paid assumes significance in this context. Though in the plaint it is contended that
the scheduled property situated by the side of Harippad – Kayamkulam road, it
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appears to be not correct. As per Ext.A3 and A5, there is only a pathway on the
east and on all the three sides properties belonging to other persons are its
boundaries.
32. During the cross-examination PW1 admitted that immediately before
the execution of the document the scheduled property was measured by some
persons. She also deposed that she was not present at the time of measurement of
the said property. Since the 1st plaintiff was aware of the measurement of the
property by the purchasers before the execution of Ext.B7 and she also recognized
Ext.B7 in Ext.B2 claim petition and has not taken any steps to challenge Ext.B7
even after Ext.B2 claim petition, it is to be held that the delay of about 6 years in
filing the suit is not properly explained.
33. It is true that PW4, the former president of Chingoli grama panchayat
deposed that once she had taken the 2nd plaintiff to the Mental Health Centre,
Thiruvananthapuram, as he turned violent due to mental illness. However, in the
light of the evidence of PWs5 and 6, the Doctors who had examined the 2 nd
plaintiff, the evidence of PW4 has not much relevance. Even from the evidence of
PWs5 and 6 it is revealed that the 2 nd plaintiff was brought before the hospital and
treated for mood disorder, only intermittently. From their evidence it is revealed
that even in the case of a person suffering from mood disorder, there will be period
in which he behaves normally. Even in Ext.X1 series case sheet produced from the
Mental Health Centre, Thiruvananthapuram, it is stated that during the period of
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treatment he became fit for discharge and fit for facing trial on 12.12.2002 and
again in June-2003, in a criminal case registered against him.
34. Though from the evidence of PWs5 and 6 and from the medical
evidence including Ext.X1 series, it is revealed that the 2 nd plaintiff was suffering
from mental illness, it was not a continuous one, but intermittent. Though
originally he was treated as an inpatient in the mental Health Centre,
Thiruvananthapuram, from 7.8.1996 to 12.12.1996, thereafter he was treated only
as an outpatient on 15.1.1997, 7.2.1997, 18.4.1997, 20.8.1997 and 12.1.1998.
Thereafter he was admitted in the hospital only on 10.5.2001. There is absolutely
no evidence to show that he was under any kind of treatment for mental illness
between 23.1.1998 and 10.5.2001.
35. The disputed document namely Ext.A5(B7) was executed on
19.5.1999. About 2 years before the execution of Ext.A5, on 23.6.1997 the 2 nd
plaintiff executed Ext.A3 partition deed along with his siblings. The 1st plaintiff
herself filed Ext.B3 suit against the 2nd plaintiff on 12.8.1999, less than 3 months
after the execution of Ext.A5. Ext.B1 suit was filed against him on 1.11.2001.
Ext.B2 claim petition was filed by the 1 st plaintiff against the 2nd plaintiff on
27.11.2004. Ext.B4 suit was filed by the defendant herein on 28.6.2001 against
plaintiffs 1 and 2 herein. In none of the above proceedings, the 1 st plaintiff had a
case that the 2nd plaintiff was suffering from unsoundness of mind. At the time of
evidence, it is also revealed that about one month before the execution of Ext.B7, a
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child was born to the plaintiffs. The validity of Ext.B7 executed on 19.5.1999,
about 3 months before filing Ext.B3 suit is to be evaluated in the above context.
Now the crucial question to be considered is whether at the time of executing
Ext.A5 sale deed the 2nd plaintiff was capable of understanding the nature of the
said document and of forming a rational judgment as to its effect upon his interests.
36. In the decision in Sona Bala Bora and Others v. Jyotirindra
Bhatacharjee, 2005 (4) SCC 501, the alleged unsound person has assigned all his
properties including all the three residential buildings and even attempted to expel
his family members forcefully from the above residence. He also filed cases
against them without any basis. In the above context, while analysing the meaning
of the Illustration to Section 12 of the Indian Contract Act, with regard to the
burden of proof and shifting of the burden, the Apex Court held in paragraph 25 as
follows:
“No doubt the burden to prove or establish at least on a balance of
probability that Bhogirath’s action in executing the sale deed in favour of
the respondent was the outcome of an unsound mind was on the
appellants. But unrebutted evidence of an unnatural and inexplicable
animosity to his wife and children as well as of an unnatural and
inexplicable fixation on selling of all his properties probabilises that the
sale was effected by when Bhogirath was incapable of rational behaviour.
This was sufficient to discharge the appellants’ burden. The onus then
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shifted to the respondent to adduce evidence either to show that the
ostensibly irrational conduct of Bhogirath had a rational explanation or
that the conveyance was executed by Bhogirath in a lucid interval…..”
37. Therefore, it can be seen that, not only from the medical evidence,
but from the unreasonable and irrational conduct and behavior also, a person’s
mental condition could be established. If he is capable of judging the consequence
of his acts, he is of sound mind. On a perusal of Ext.B7 it can be seen that though
at the time of executing Ext.B7, the 2nd plaintiff had 25.67 Ares of property along
with a residential building, he had sold only 14.16 ares, excluding the residential
building. The conduct of the 2nd plaintiff in selling only a portion of the property
obtained by him as per Ext.A3 and setting apart the remaining portion including
the residence for his own use is a crucial factor leading to his mental condition and
the ability to think rationally and to decide the nature and consequence of his acts.
38. In this context it is to be noted that, at the time of executing Ext.A5
his wife and children were not with him. Even then, he has sold only a portion of
his property and the remaining portion including the residential building was
excluded and reserved for the use of himself and his family. From the above
conduct of the 2nd plaintiff itself it can be seen that, at the time of executing the
said document, he was very much conscious and aware of the nature and
consequences of the document executed by him. Only because he was very much
sensible, rational and capable of understanding the nature of the document
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executed by him and its consequence, he willfully excluded a portion of the
property including the residential building from Ext.B7. Moreover, as I have
already noted above, in this case there is absolutely no evidence to prove that
during the period after 23.1.1998 and before 10.5.2001, he was suffering from any
such mental illness or that any treatment was given to him during the said period.
Further, in Ext.B3 suit the 1st plaintiff had recognized and accepted Ext.B7, and
hence, now she cannot turn around and say that Ext.B7 executed by the 2 nd plaintiff
was without knowing and understanding the nature and consequence of the said
document.
39. Therefore, from the evidence on record, it is evident that the 2nd
plaintiff executed Ext.B7 while he was of sound mind, capable of taking rational
decisions and understanding the nature of the document executed by him and of
forming a rational judgment as to its effect upon his interests. Therefore, it is to be
held that, Ext.B7 sale deed executed by the 2 nd plaintiff in favour of the defendant
is a validly executed sale deed binding on the 2nd plaintiff and as such it cannot be
set aside as prayed for in the plaint. In the above circumstances, the trial court was
not justified in holding that Ext.B7 is null and void. In other words, this appeal is
liable to be allowed, the impugned judgment and decree of the trial court is liable
to be set aside and the suit, OS. 250/2006, is liable to be dismissed. Points
answered accordingly.
40. In the result, the appeal stands allowed. The impugned judgment and
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decree of the trial court is set aside. OS. 250/2006 is dismissed. Considering the
facts, I order no costs.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/23.7.