High Court
Case Details
RSA 101/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY (B.P.Katakey,J.) 1. This appeal, by the successor-in-interest of the original plaintiffs in T.S. No.63 of 1997, is directed against the judgment and decree dated 17.01.2002 passed by the learned Civil Judge (Senior Division), Barpeta, in Title Appeal N o.11 of 2001 allowing the appeal preferred by the defendants by setting aside th e judgment and decree dated 22.12.2000 passed by the learned Civil Judge, (Junio r Division), Barpeta, in Title suit No.63 of 1997 whereby and whereunder the sui t of the plaintiffs was decreed. 2. The predecessor-in-interest of the present appellant, namely, Abdul Reza k, filed Title Suit No.63 of 1997 for declaration of his right, title and intere st and for confirmation of possession over a plot of land measuring 2 bighas, mo re fully described in Schedule-B to the plaint, and also for declaring that the registered sale deed No.2235 of 1996 dated 30.09.1996 as fraudulent, void and in operative in law, contending inter-alia that the land measuring 21 Bigha 4 Katha 5 Lecha, described in Schedule - A to the plaint, originally belonged to Ahmed Ali, the father of Abdul Aziz as well as the defendants. It has further been ple aded that the land described in Schedule -B measuring 2 Bighas fell in the share of Abdul Aziz, the father of plaintiff, after the death of the original owner A hmed Ali. According to the plaintiff the defendant No.1 on 30.09.1996 deceived h is father Abdul Aziz, who is of unsound mind since his childhood and got his thu mb impression on stamp papers by giving a pair of Hawai Chappal and Rs.10/- (Rup ees ten), transferring the Schedule-B land in favour of Abdul Kuddus, defendant No.1, which was registered on the same day i.e. 30.09.1996. According to the pla intiff, they came to know about the execution of such deed on 08.10.1996, on get ting the certified copy of the sale deed. The plaintiff, therefore, had institut ed the suit for declaration of plaintiff’s right, title and interest and conform ation of possession in respect of Schedule - B land, as well as cancellation of the said deed, since according to the plaintiff his father Abdul Aziz was of uns ound mind. 3. The suit has been contested by the defendant No.1 by filing written stat ement contending inter-alia that the suit is not maintainable in the present for m as the procedure of filing the suit on behalf of the person of unsound mind ha s not been followed. It has also been pleaded in the written statement that the plaintiff’s father Abdul Aziz, who was in need of money, offered to sale Schedul e-B land to the defendant No.1 at Rs.20,000/- and as the defendant No.1 has agre ed to the said proposal, registered deed of sale was executed on 30.08.1996 on r eceiving the consideration amount of Rs. 20,000/-. The defendant No.1 has denied that Abdul Aziz was of unsound mind and no consideration amount has been paid o n the execution of the sale deed. According to the defendant, Abdul Aziz was of sound mind and he was managing his family, who in fact along with his brother Ab dul Baser also sold two other plots of land to two other purchasers around the s ame time when the sale deed dated 30.09.1996 was executed by Abdul Aziz in favou r of the defendant No.1. 4. ed the following issues for determination:- 1. 2. 3. 4. 5. he ’B’ Schedule land? 6.
Legal Reasoning
Whether there is cause of action for this suit? Whether the suit is maintainable in its present form? Whether the plaint is under stamped? Whether the suit is lead for non-joinder of necessary parties? Whether the plaintiffs have right, title, interest and possession over t Whether the sale deed No. 2235/96 dated 30.09.96 is fraudulent, void and The learned Trial Court on the basis of the pleading of the parties fram in operative? Whether plaintiff is entitled to get a decree is issue precept for cance 7. llation of the deed No.2235/96 dated 30.09.96? 8. Whether plaintiff is entitled to get a decree as prayed for? To what other relief or reliefs, if any, the plaintiff is entitled to? 9. 5. The plaintiff, in order to prove his case, has examined as many as six w itnesses and has proved three documents, which are marked as Exhibit Nos.1, 2 & 3. The defendant has also examined three witnesses and proved four documents bei ng Exhibits- Ka, Kha, Ga, & Gha in support of his pleaded case in the written st atement. After examination of witnesses by the parties, the plaintiff, Abdul Reza k, died and in his place his legal heirs i.e. present appellants were substitute d vide order dated 17.11.2000. 6. The Trial Court upon appreciation of the evidence on regard decreed the suit of the plaintiff declaring that the plaintiff has right, title and interest over the Schedule - B land and also declaring that the sale deed dated 30.09.19 96 (Ext. - 2/ Ext. - Ka) is fraudulent, void and inoperative. The suit at the in stance of plaintiff Abdul Rezak on behalf of his father Abdul Aziz has also been held to be maintainable. The Trial Court has recorded the finding that Abdul Az iz, who executed the sale deed dated 30.09.1996, was of unsound mind and as such he was not competent to enter into a contract and hence the aforesaid sale deed dated 30.09.1996 is void and inoperative. The Trial Court has also refused to p lace much reliance on Exhibits- Kha & Ga sale deeds of which Abdul Aziz was also the vendor along with the another brother, on the ground that those sale deeds were executed by two persons, namely, Abdul Aziz & Abdul Baser and the Court is not concerned about the said sale deed those having not been challenged. 7. Being aggrieved the defendant Nos.1 & 2, namely, Abdul Kuddus & Abdul Ma zid filed Title Appeal No. 11 of 2001 before the 1st Appellate Court which has b een allowed by the aforesaid judgment and decree by setting aside the judgment a nd decree passed by the Trial Court. The 1st Appellate Court has held that since the suit has not been filed in the name of Abdul Aziz, father of Abdul Rezak, w ho claims to be of unsound mind, the suit of Abdul Rezak is not maintainable, wh en Abdul Aziz is alive. The 1st Appellate Court has also found that there is no evidence as to how Abdul Rezak has got the property, when his father Abdul Aziz is alive and hence Abdul Rezak cannot maintain the suit for declaration of right , title and interest. The claim of the plaintiff that the sale deed dated 30.09. 1996 (Ext.- 2, Ext. Ka), is fraudulent, void and inoperative, on the ground that Abdul Aziz was at the relevant point of time of unsound mind has also been reje cted by the First Appellate Court, on the ground that the plaintiff could not pr oved that Abdul Aziz was of unsound mind at the relevant point of time i.e. at t he time of execution of the sale deed dated 30.09.1996. The 1st Appellate Court while recording such finding has also placed reliance on Exts. - Kha & Ga sale d eeds, which were executed in the months of November and December, 1996 by Abdul Aziz along with another i.e. around the same time when the sale deed dated 30.09 .1996 was executed by Abdul Aziz in favour of Abdul Kuddus. 8. ollowing substantial questions of law: i) Whether the First Appellate Court appreciated the medical certificate Ex t.-3 pertaining to mental abnormality of one Abdul Aziz in its true passing the impugned judgment and decree or not? ii) Whether the courts below rightly interpreted and appreciated the provisi ons of Order 32 rule 15 CPC, while passing the impugned judgments and decree or not? iii) ted judgments and decrees on the basis of available evidence on record or not? 9.
Legal Reasoning
I have heard Mr. B. Ullah, learned counsel appearing for the appellants. Also heard Mr. N. Haque, learned counsel appearing on behalf of respondent Nos. Whether the First Appellate Court or the trial court had passed the rela The appeal was admitted vide order dated 20.08.2002 for hearing on the f 1 & 2. None appears for the other respondents. 10. Mr. Ullah, learned counsel for the appellants referring the deposition o f witnesses examined by the plaintiff and also the Exhibit- 3 discharge certific ate issued by the Tezpur Mental Hospital, has submitted that it is apparent ther e from that Abdul Aziz was of unsound mind for about 18 to 20 years before the d ate of execution of sale deed dated 30.09.1996 (Ext. 2, Ka) and as such the 1st Appellate Court ought not to have held that the plaintiff could not prove that A bdul Aziz was of unsound mind. According to the learned counsel, the first Appel late Court did not appreciate the oral evidence of the witnesses examined by the plaintiff, properly, apart from the documentary evidence i.e. Ext. - 3, the dis charge certificate issued by the mental hospital and hence the judgment suffers from non-appreciation of the evidence in his proper perspective. It has also bee n submitted by the learned counsel that in the cause-title of the suit it has sp ecifically been mentioned that the suit has been filed for declaration of the ri ght, title and interest of Abdul Aziz, who is of unsound mind, the 1st Appellate Court ought not have held the suit filed by the plaintiff is not maintainable, merely on the ground that Abdul Aziz was not the plaintiff, who, according to th e learned counsel, is the technicality only and should not come into the way of deciding the suit on merit. 11. Mr. Haque, learned Counsel appearing for the respondent Nos. 1 & 2, per contra, supporting the judgment passed by the 1st Appellate Court has submitted that even assuming that the suit of the plaintiff is maintainable, the plaintif f having failed to prove, by adducing cogent and reliable evidence, that Abdul A ziz at the relevant point of time i.e. at the time of execution of the sale deed dated 30.09.1996, was of unsound mind, the 1st Appellate Court has rightly allo wed the appeal and dismissed the suit of the plaintiff. Referring to the Ext. - 3, discharge certificate issued by the Tezpur Mental Hospital, it has been submi tted that though the admissibility of the said document has not been questioned by the defendant at the time of marking the same as Ext., from the said document it is not ascertainable as to the period for which Abdul Aziz was treated in Te zpur Mental Hospital, as P.W.1 who proved the said document, in his deposition h as admitted that the date of issuance of the certificate is not legible. The lea rned counsel further submits that the plaintiff did not take any steps to prove the date of admission of Abdul Aziz in the Hospital as well as his date of disch arge therefrom, by calling for the records of the hospital and proving the same. It has also been submitted that it is evident from Exhibits-Kha & Ga, the sale deeds executed in the months of November and December 1996, that Abdul Aziz was of sound mind as he was one of the vendors in the said sale deeds who also execu ted the sale deed dated 30.09.1996 (Ext. 2/ Ext. Ka). Mr. Haque further submits that the deposition of plaintiff’s witness that Abdul Aziz was of unsound mind s ince childhood has rightly been disbelieved by the First Appellate Court, as the plaintiff’s witnesses themselves admitted that Abdul Aziz married at least for twice, if not more, who has also led a family life. The learned counsel, therefo re, submits that the appeal preferred by the plaintiff deserves to be dismissed. 12. I have considered the submissions advanced by the learned counsel appea ring for the parties and also perused the judgments and decrees passed by both t he Courts below, apart from the materials available on records. 13. As noticed above, the plaintiff has not disputed the execution of sale d eed dated 30.09.1996. The plaintiff, however, has pleaded that as Abdul Aziz was of unsound mind at the relevant point of time, he had no capacity to enter into a contract and hence the sale deed dated 30.09.1996 is void and inoperative in law. It is also the case of the plaintiff that the consideration amount was not paid. On the contrary, the defendant’s case as projected in the written statemen t, is that Abdul Aziz was of unsound mind and executed the sale deed, which was registered under the provision of the Registration Act 1908 on the date of execu tion. 14. Section 11 of the Contract Act, 1872, stipulates the persons who are com petent to contract. Every person who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified fro m contracting by any law to which he is subject, is competent to contract. Secti on 12 provides that a person is said to be of sound mind for the purpose of maki ng 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 interest. A pers on who is usually of unsound mind, but occasionally of sound mind, may also make a contact when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, cannot make a contract when he is of unsound mind. Illustration (a) to Section 12 provides that the patient in a Lunatic Asylum, wh o is at intervals of sound mind, may contract during those intervals. 15. It is being the case of plaintiff that Abdul Aziz was of the unsound min d during the relevant point of time i.e. 30.09.1996 when the sale deed (Ext 2, E xt. Ka) was executed, burden lies on the plaintiff to prove that Abdul Aziz was of unsound mind at that point of time. The plaintiff in order to prove the same has, apart from examining himself, also examined five witnesses whose evidences are found to be contradictory. While the plaintiff himself, who has been examine d as P.W.1, claimed that his father was hospitalized in Tezpur Mental Hospital 5 to 6 years before, without saying anything from when he was of unsound mind, th e other witnesses claim that the plaintiff’s father Abdul Aziz was of unsound mi nd since childhood. Evidence of the witnesses that Abdul Aziz was of unsound min d has rightly not been accepted as they have admitted that he married for at lea st two times and had children and was leading a family life. 16. Ext. 3, has been introduced by the plaintiff in order to demonstrate tha t Abdul Aziz was of unsound mind and was marked as Ext. without any objection fr om the defendant and hence its admissibility cannot be questioned by the defenda nts. The Court, however, has refused to give much credence to the same as from t he deposition of the witnesses more particularly of the P.W.1, the plaintiff him self, it appears that none of them have stated that he was admitted in the hospi tal and when discharged therefrom. P.W.1 has also admitted that the date of issu ance of the discharge certificate i.e. Ext. 3 is not legible. P.W.1 has not depo sed about the date of admission of Abdul Aziz in the mental hospital as well as his date of discharge. The records of the hospital even were not called for and proved. On the other hand the defendants have proved at least two sale deeds, be ing Ext. kha & Ga, executed in the months of November and December 1996, by Abdu l Aziz along with another in favour of two purchaser, which were executed by Abd ul Aziz around the same time of execution of sale deed dated 30.09.1996 (Ext. 2/ Ka). The plaintiff, therefore, could not prove by leading cogent and relevant e vidence that Abdul Aziz was of unsound mind around the time when (Ext. 2/ Ka) sa le deed dated 30.09.1996 was executed, though the burden lies on the plaintiff t o prove the same. 17. As noticed above, the (Ext. 2/ ka) sale deed dated 30.09.1996 is a regis tered instrument and hence its due execution by the vendor on receipt of the con sideration amount has to be presumed, which presumption is however, rebutable. I n the sale deed dated 30.09.1996 Abdul Aziz has stated about receipt of the cons ideration amount, which has also been deposed by the defendants’ witness. The pl aintiff though tried to project that consideration amount has not been paid, he, however, could not demonstrate the same. 18. The suit of the plaintiff being on behalf of the Abdul Aziz, who is stat ed to be of unsound mind on the date of filing of the suit, ought not to have be en held to be not maintainable, merely on the ground that Abdul Aziz has not bee n described as plaintiff in the suit. The suit of the plaintiff, therefore, ough t not to have been dismissed on such technicalities. However, in view of the fin ding recorded by me in this judgment that the plaintiff could not demonstrate th at Abdul Aziz was of unsound mind at the relevant point of time i.e. at the time of execution of the sale deed dated 30.09.1996, the plaintiff suit has rightly been dismissed by the first Appellate Court. 19. Appeal is, therefore, dismissed being devoid of any merit. No cost. 20. The Registry is directed to send down the records forthwith.