Mathen Philipose v. Boby John and John Aleyamma

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** # **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934** **SA.NO. 444 OF 2002 ( )** **----------------------------------AS.173/1993 OF DISTRICT COURT, KOTTAYAM OS.141/1984 OF MUNSIFF'S COURT, ETTUMANOOR** ## **APPELLANT)/RESPONDENT/PLAINTIFF:** **---------------------------------------------------------** **MATHEN PHILIPOSE, REPRESENTED BY HIS NEXT FRIEND PHILIPOSE MARIAMMA ALIAS LEELAMMA ELAVUNKAL HOUSE, PEROOR KARA, ETTUMANNOOR VILLAGE KOTTAYAM DISTRICT.** **BY ADV. SRI.M.NARENDRA KUMAR** ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** **----------------------------------------------------------------** ## **1. BOBY JOHN, ELANJITHARAYIL HOUSE, MANARCADU KARA, MANARCADU VILLAGE.** **2. JOHN ALEYAMMA, OF DO DO** **BY ADV. SRI.V.G.ARUN BY ADV. SRI.T.R.HARIKUMAR** **THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== S.A. No.444 of 2002 ==================================== Dated this the 12[th] day of November, 2012** ## **J U D G M E N T** Admit. 2. The Second Appeal is brought from the judgment and decree of learned District Judge, Kottayam in A.S. No.173 of 1993 reversing the judgment and decree of learned Munsiff, Ettumanoor in O.S. No.141 of 1984. 3. The following substantial questions of law are framed for a decision: (i) Whether a person suffering from Mania Depressive Psychosis can be said to be a person capable of understanding and forming a rational judgment as to the effect of a document executed by him upon his interest as stipulated under Section 12 of the Indian Contract Act (for short, “the Act”), (ii) Whether medical evidence and the opinion expressed by the medical experts is sufficient to discharge the burden of proving that plaintiff is a person of unsound mind at the time of ## **S.A. No. 444 of 2002** ## -: 2 :- execution of deed No.404 of 1984? (iii) Whether the lower appellate court was justified in relying upon registration of the document before the Sub Registrar to hold that there is voluntary execution of document No.404/1984? 4. The 2[nd] respondent is the daughter of the appellant. The 1[st] respondent is the husband of the 2[nd] respondent. Marriage of the respondents was solemnized on 26.02.1984. According to the respondents, it was agreed that the 2[nd] respondent would be given Rs.3,500/- in cash, 1½ sovereigns of gold ornaments and share in the property of the appellant. As per that understanding the appellant executed Ext.B1, settlement deed in favour of the respondents on 20.02.1984. 20 cents out of a total extent of 59.5 cents belonging to the appellant was settled in favour of the respondents. A week or so after the marriage, the respondents went to Bangalore where the 1[st] respondent was working. While so, the appellant, represented by his wife (P.W.1) filed O.S. No.141 of 1984 in the Munsiff's Court, Ettumanoor for a declaration that Ext,B1, settlement deed No.404 of 1984 (Ext.A6 is its certified copy) is null and void since at the time the said document was (allegedly) executed the appellant ## **S.A. No. 444 of 2002** ## -: 3 :- was not having sound mind, and for a decree for prohibitory injunction against the respondents trespassing into the said property. The appellant claimed that he was of unsound mind since about two years preceding the execution of Ext.B1. An allegation of fraud and undue influence (without stating details) is also made in the plaint to challenge Ext.B1. 5. The respondents denied that the appellant was not having sound mind at the time of execution of Ext.B1. They also denied the allegation of undue influence and fraud in the execution of Ext.B1. They referred to the circumstances (above stated) leading to the execution of Ext.B1. 6. The trial court on evidence found that Ext.B1 is null and void as it was executed at a time when the appellant was not having sound mind. Consequently, a decree was passed in favour of the appellant as prayed for. 7. In appeal at the instance of the respondents, the first appellate court reversed the finding of the trial court and held that Ext.B1 is validly executed by the appellant and hence is binding on him. The suit was dismissed. Hence this Second Appeal on the substantial questions of law framed above. 8. The learned counsel for the appellant contended that the first appellate court has not considered the evidence of P.Ws2 ## **S.A. No. 444 of 2002** ## -: 4 :- to 4 in the correct perspective. It is pointed out that evidence of P.Ws2 to 4 read along with Exts.A1 to A3, A8 and A9 would show that before and after the execution of Ext.B1, the appellant was undergoing treatment for affective psychosis. The learned counsel argued that once it is shown that the executant was generally of unsound mind, the onus shifted to the respondents to show that Ext.B1 was executed in a lucid interval. According to the learned counsel, no reliable evidence is let in by the respondents except that the 1[st] respondent was examined as D.W.1. It is argued that the Scribe, Attestors or the Sub Registrar are not examined to show that on the day Ext.B1 was executed, the appellant was in sound mind. It is argued that the total extent of land belonging to the appellant is only 59.5 cents and in that situation the appellant who has other children also would not have, had he be in normal sense, settled 20 cents to one daughter alone The learned counsel has placed reliance on the decisions in **Mohanlal Madangopal v. Vinayak Sadasheo** ([28] AIR 1941 Nagpur 251), **Mariam v. Varthese** (1965 KLT 692) and **Sona Bala Bora v. Jyothirindra Bhatacharjee** ([2005] 4 SCC 501). 9. The learned counsel for the respondents contends that the allegation of fraud and undue influence made in the plaint ## **S.A. No. 444 of 2002** ## -: 5 :- and spoken by P.W.1 would show that the appellant was in sound mind at the relevant time. The evidence of P.Ws.2 to 4 would only show, at the best, that the appellant was suffering from a mild form of affective psychosis which did not deprive him of the mental faculty to take decision, understand the contents of Ext.B1 and execute it. According to the learned counsel even a perusal of Ext.A5 and the suggestion put to the 1[st] respondent in cross-examination when examined as D.W.1 are sufficient to show that the appellant was not of any unsound mind while executing Ext.B1. At any rate, it is contended, in so far as Ext.B1 was duly executed and registered and having regard to the circumstances it must be taken that at the time Ext.B1 was executed the appellant was having sound mind to understand the contents of Ext.B1 and execute the same. 10. Under Sec.12 of the Act, a contract entered into by a person of unsound mind is void. The test of unsoundness of mind is whether a person is incapable of understanding the business concerned and of forming a rational judgment as to its effect upon his interest. In **Hall v. Warren** ([1803 -13) All. E.R. 57) it is held that the presumption is in favour of sanity and hence the person relying on unsoundness of mind must prove it sufficiently to satisfy the above mentioned test. In **Jenkins v.** ## **S.A. No. 444 of 2002** ## -: 6 :- **Morris** (14 Ch. D. 674) it is held that the mere existence of a delusion in the mind of a person is not sufficient to avoid a contract even though the delusion is connected with the subject matter of such disposition or contact. The real question is whether the decision affected the disposition or contract. ## 11. In **Mohanlal Madangopal v. Vinayak Sadasheo** (relied on by the learned counsel for the appellant) it is held that where the executant is not alleged to be generally insane with lucid intervals but rather that he had from time to time attacks of insanity, the onus is on the defendant (who challenged the document) to show that at the relevant time there was an attack of insanity which made the executant incapable in law of executing the document. Once it is established that a person is usually of unsound mind, the burden of proof is on the party who alleges that the document was executed during a lucid interval. In **Tilok v. Mahandu** (144 IC 741) it is held that where an insane person had lucid intervals, the burden of proving that he was of unsound mind at the time of the execution of a document is heavily on the person challenging the validity of the document. 12. In **Mariam v. Varghese** (supra) it is held that where a transaction is impeached on the ground that the executant was a man of unsound mind, the initial onus lies on the person who ## **S.A. No. 444 of 2002** ## -: 7 :- 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. ## 13. In **Sona Bala Bora and Others v. Jyotirinda** **Bhatacharjee** (supra) in paragraph 20 it is held, referring to Sec.12 of the Act that 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 interest. In paragraph 21 it is held that in a civil matter the issues have to be decided on a balance of probabilities. In paragraph 25 it is held that the unrebutted evidence of an unnatural and inexplicable animosity towards the wife and children as well as of an unnatural and inexplicable fixation on selling of all properties probabilised that the sale was effected by the executant when he was incapable of rational ## **S.A. No. 444 of 2002** ## -: 8 :- behaviour and that the same was sufficient to discharge the appellants' burden. 14. It is necessary to refer to the evidence in the case. P.W.2 was an Assistant Professor (of Psychiatry) at the Medical College Hospital, Kottayam and issued Ext.A8, Certificate based on Exts.A1 to A3 and Ext.A9, medical prescriptions. P.W.2 has stated that the appellant was suffering from affective psychosis which has two phases; one is of depression and the other is mania or excitement. Both these phases can be of varying severity depending on the case or depending on mild or moderate. During a mild or moderate phase the judging capacity and social behaviour need not be impaired. But in a severe form, they are all impaired. Referring to Exts.A1 to A3, A8 and A9, it was suggested to P.W.2 in chief examination that in the appellant, what was found is mental disorder from the phase (probably, the second phase). The witness answered that it is not specified so in the Ext.A9, the certificate issued by her. From her memory she recollected that the appellant was being treated by Dr.Davis (P.W.4). Since the appellant was not hospitalized, he may have been having a mild or moderate form and not severe type (of affective psychosis). In crossexamination the witness sated that the appellant along with his ## **S.A. No. 444 of 2002** ## -: 9 :- wife (P.W.1) had approached her for Ext.A9 and P.W.2 issued that certificate after talking to him (obviously, referring to the appellant). P.W.2 stated that to all the questions she had put, he (the appellant) had given satisfactory answers. If the patient is aggressive, he will be hospitalized. During moderate form of affective psychosis the patient would be capable of forming a rational judgment (on matters affecting him). To a question whether a person having affective psychosis could be threatened and influenced to do something, P.W.2 answered that she does not think so. 15. P.W.3 was the Professor of Psychiatry at the Medical College Hospital, Thiruvananthapuram. He claims to have seen the appellant in October, 1982 and treated him upto 1983. He issued Ext.A2, prescription. Referring to Ext.A2, P.W.3 stated that it refers to mania depression Psychosis. The witness claimed that he could say somewhat about the condition of the appellant at the time he issued Ext.A2 (on 12.10.1982). The medicine prescribed was for psychosis which was of a moderate dose. The patient was under treatment from 1981. P.W.3 was not able to say whether the appellant was continuously ill. On seeing Ext.A2, prescription it could be said that there is a reasonable likelihood that the appellant's power for judgment was ## **S.A. No. 444 of 2002** ## -: 10 :- impaired. Attention of the witness was drawn to Ext.A3, medical prescription dated 25.01.1983 (which was not issued by him). With reference to Ext.A3, the witness stated that during that time also the patient (appellant) continued to be in the same condition. The witness found delusion with the patient (appellant). In cross-examination P.W.3 stated that the documents produced do not show inpatient treatment for the appellant. Affective psychosis meant mood disorder. Its predominant symptom is emotional disorder. Affective disorder can be moderate and severe. Severity is one of the criteria for inpatient treatment. He cannot say what the case of the appellant was (whether it was one of severity or of moderate type). The capacity to think will be different in moderate and severe cases of Psychosis. His prescription (Ext.A2) is for the treatment given in moderately severe cases. The O.P ticket after 1982 is issued in the year, 1991. When it was suggested to P.W.3 that if there is no treatment for 6-7 years the patient had no illness, the answer was that sometimes it may be repeated. Consultation may not have been required during 1982-91. But the patient had to take medicines. 16. P.W.4 claims to have treated the appellant from 1991 onwards and issued Ext.A9, prescription. Exhibit A9 stated that ## **S.A. No. 444 of 2002** ## -: 11 :- the appellant was suffering from Psychosis since two years back and that was cured after one year. He prescribed medicine for Psychosis. With reference to Ext.A9, P.W.4 stated that it would appear that in 1986, within a period of one year, the illness of the appellant was cured. He added that the illness is recurring and that for depression it may require treatment for a period of six months to one year. P.W.4 also stated that he found affective psychosis in the appellant. To a question whether at the time he saw the appellant, the latter was capable of analyzing matters and forming a rational judgment, the witness answered in the affirmative. 17. The wife of the appellant who represented him as next friend gave evidence as P.W.1. She referred to the various treatment the appellant was undergoing for mental disorder and stated that it was by fraud and threat that the respondents got Ext.B1 executed by the appellant. 18. The 1[st] respondent gave evidence as D.W.1. He referred to the circumstances under which Ext.B1 was executed. In cross-examination it was suggested to D.W.1 that it was by influencing the appellant with a promise for convenient accommodation (with the respondents) at Bangalore that the respondents got Ext.B1 executed. D.W.1 answered the question ## **S.A. No. 444 of 2002** ## -: 12 :- in the negative. 19. Exhibits A1 to A3 do not mention the nature of illness. Instead, it only refers to the treatment given to the appellant by P.Ws.3 and 4 till 1983 and after 1991. From the evidence of P.Ws.2 to 4 what could be understood is that during 1983, immediately before that and from 1991 onwards, the appellant was undergoing treatment for a mild form of affective psychosis. Evidence of P.Ws.2 to 4 shows that the medicines prescribed was of a mild dose. As per the evidence of P.Ws.2 to 4, if the appellant was suffering from a mild form of affective psychosis, it was possible for him to analyze matters and form a rational judgment on matters affecting him. It is not as if the evidence of P.W.2 to 4 would show that appellant was generally of unsound mind during the relevant time which made him incapable of executing a document so that, the burden was on the respondents to show that Ext.B1 was executed during a lucid interval. On the other hand, in the nature of evidence given by P.Ws2 to 4 about the illness of the appellant, burden was heavy on the appellant to show that during the time Ext.B1 was executed, he was suffering from such mental illness which made him incapable of understanding things and forming a rational judgment on matters affecting him. Even when it is shown that ## **S.A. No. 444 of 2002** ## -: 13 :- the appellant was having lucid interval, the appellant had to show that at the time he executed Ext.B1, he had no such lucid interval. 20. Exhibit B1 is the settlement deed admittedly executed by the appellant. The challenge to Ext.B1 is on the ground that it is executed by the appellant at a time when he was not having sound mind. Vaguely, it is pleaded that Ext.B1 is vitiated by fraud and influence. I referred to the evidence of P.W1 that it was by fraud and undue influence that Ext.B1 was got executed. If one were to believe that, I must understand that the appellant was in such a mental condition that he could be influenced and defrauded which means that he was of sound mind. I am not inclined to think that a person of unsound mind could be defrauded and influenced duly or unduly. I am also not inclined to think that it was a stray answer given by P.W.1 in crossexamination. It is in the same way that a suggestion was put to D.W.1 in the cross-examination that the appellant was made to believe that he will be given convenient accommodation (with the respondents) at Bangalore and Ext.B1 was got executed. That would indicate that even at the time Ext.B1 was executed, the appellant had sound mind or at least that he had lucid interval and Ext.B1 was executed on such an occasion. 21. Another clinching circumstance is Ext.A5, letter dated ## **S.A. No. 444 of 2002** ## -: 14 :- 18.05.1984 sent by the 1[st] respondent to the appellant. There, reference is made to a letter sent by the appellant to the 1[st] respondent. Exhibit A5 is in reply to that letter. Exhibit A5 is produced by the appellant and shows that during May, 1984, the appellant was in such a mental condition that he could address a letter to the 1[st] respondent and receive a reply to that letter. A reading of Ext.A5 would not show that appellant was not having any mental disorder then. 22. No doubt, Ext.A5 is dated 18.05.1984 while Ext.B1 is executed on 20.02.1984. There is no evidence to show that after 1983 and before 1991, the appellant was undergoing any treatment. The appellant had not gone for any inpatient treatment at any time which is normally required for severe cases of affective psychosis even as per the medical evidence in the case. Exhibit B2 is the copy of a sale deed admittedly executed by the appellant on 23.01.1984. There is no challenge to Ext.B2. But challenge is made to Ext.B1, dated 20.02.1984. Going by Ext.B2 dated 23.01.1984 and Ext.A5 dated 18.05.1984 which are not disputed, the mental condition of the appellant was normal then. The appellant and P.W.1 want the court to believe that on 20.02.1984 the appellant was not having sound mind! 23. Another argument advanced is that neither the ## **S.A. No. 444 of 2002** ## -: 15 :- Scribe nor the attestor nor even the Sub Registrar is examined to prove the due execution of Ext.B1. Exhibit B1 shows that the appellant himself had presented that document for registration. The Sub Registrar has made an endorsement on Ext.B1 that it is duly registered. That endorsement is made as required by Section 59 of the Registration Act, 1908. When such an endorsement is made, it at least prima facie shows that the Sub Registrar has complied with the formalities required for registration of the document including the enquiry provided under Section 34 of the said Act. That enquiry includes ascertaining that the executant has duly executed the document. Though registration by itself is not evidence of due execution, it goes a long way in proving the due execution in the absence of any suspicious circumstance. 24. That, the appellant settled in favour of the respondents 20 cents out of the total extent of 59.5 cents belonging to him is not a ground to show that the appellant was not able to form a rational judgment in matters affecting him. 25. From the circumstances above stated what could be said at the best is that the appellant may have been suffering from a mild form of affective psychosis for which he has taking mild dose of medicines even during the relevant time, that did not ## **S.A. No. 444 of 2002** ## -: 16 :- affect his capacity to understand things and form rational judgment on matters affecting him. The appellant has failed to show that during the time Ext.B1 was executed, he was suffering from such mental disorder which made him incapable of forming rational judgment on matters affecting him and executing a document. At any rte, the evidence shows that the appellant was having lucid intervals and that Ext.B1 was granted on such an occasion. In that view of the matter, the challenge to Ext.B1 on the ground that it was executed by a person of unsound mind has to fail as rightly found by the first appellate court. The appellant is bound by Ext.B1. 26. The substantial questions of law framed are answered as above. Resultantly, - (i) The Second Appeal is dismissed. - (ii) Parties shall suffer their costs in this appeal. - All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv