Nasib Dei deceased through Lrs. Smt. Satya Devi Vs Tarshem Singh (deceased) through LRs Rajesh Kumar and others

For the Appellants No.1(a), : Mr. Ashwani K. Sharma, Senior 1(b) and proposed LRs of Advocate, with Ms. Nisha Nalot, appellants No.2, 3 and 4. Advocate.

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For Respondents No.1(a) : Proceeded ex-parte. and 1(b), 2(a)(i) to 2(a)(iv)

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For Respondents No.3(a), : None. 3(b) and 4.

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Respondent No.2(a) has expired.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment

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and decree dated 31.12.2004, passed by the learned Additional District Judge, Ghumarwin, H.P. (learned Appellate Court), vide which the judgment and decree dated 26.8.1997, passed by the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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learned Sub Judge, First Class, Ghumarwin, District Bilaspur, H.P. (learned Trial Court), were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience .

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Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a declaration that the suit land described in para. 1 of the plaint is owned and possessed by her. The plaintiff has a hearing and speech disability. She is not in a position to understand her good and bad and is incompetent to execute any gift or any document. She had not executed the Gift Deed dated 28.11.1989. A consequential relief of permanent prohibitory injunction restraining the defendants from interfering with the suit land and an alternative relief of possession by demolition of the structure, if any, constructed during the pendency of the suit were also sought. It was asserted that the plaintiff is 80 years old and an infirm person who has a hearing, speech and cognitive disability since her birth. She does not understand her good or bad. Fateh Chand Guleria is taking care of her. Defendants Nos. 1 and 2 claimed that the plaintiff had executed a gift deed in their favour on 3.12.1989. They asked the plaintiff to vacate the suit

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land. The plaintiff is unable to execute any gift deed or any other document. She is the owner in possession of the suit land, and the gift deed set up by the defendants is null and void, which does not affect her rights. Hence, the suit was filed to seek the relief mentioned above.

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The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi, jurisdiction and cause of action, the suit being bad for non-joinder and mis-joinder of parties, and the suit having not been properly valued for the purpose of Court fees and jurisdiction. The contents of the plaint were denied on the merits. It was asserted that the plaintiff had executed a gift deed in the defendants’ favour voluntarily. A false suit was filed by the plaintiff’s next friend. Therefore, it was prayed that the suit be dismissed.

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A replication denying the contents of the written statement and afÏrming those of the plaint was filed.

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Learned Trial Court framed the following issues on 21.10.1991: -

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Whether the plaintiff is the owner in possession of the suit land as alleged? OPP.

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Whether the plaintiff is entitled for the declaration that the gift deed executed in favour of the defendants by the plaintiff dated 28.11.1989 is false, forged, illegal and void as alleged? OPP.

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Whether the plaintiff is entitled to the relief of a permanent prohibitory injunction as alleged? OPP.

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Whether the plaintiff is entitled for possession of the suit land by demolishing the structure if constructed during the pendency of the suit as alleged? OPP.

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Whether the plaintiff is deaf and dumb and of unsound mind by birth, if so its effect? OPD.

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Whether the suit is not maintainable in the present form? OPD.

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Whether the plaintiff has no locus standi to file the present suit? OPD.

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Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.

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Whether the suit has not been properly valued for the purpose of the court fee and jurisdiction? OPD.

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Whether this Court has no jurisdiction to hear and decide the suit? OPD.

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Whether the plaintiff has no cause of action? OPD.

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Whether the defendants are in possession of the suit land by virtue of a gift deed dated 28.11.1989, if so its effect? OPD.

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Relief.

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The parties were called upon to produce evidence, and the plaintiff examined Fateh Chand (PW1), Bansi Lal (PW2), Budhi Singh (PW3), Sharwan Kumar (PW4) and Harnam Singh (PW5). The defendants examined Tarsem Singh (DW1), I.D.

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Sharma (DW2), Kuldeep (DW3), Chander Shekhar (DW4) and Chandu Ram (DW5).

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The learned Trial Court held that the scribe and the attesting witness to the gift deed stated that the plaintiff was in her sound disposing state of mind. The Gift Deed was read over and explained to the plaintiff. She put her thumb impression after acknowledging its correctness, and the Sub Registrar duly registered it. The medical certificate (Ex. D4) issued by a Surgical Specialist proved that the plaintiff was hard of hearing but of sound mind. Hence, the learned Trial Court answered Issue No.12 in the afÏrmative, Issues No.1 to 11 in the negative and dismissed the suit.

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Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned Additional District Judge, Ghumarwin, District Bilaspur, HP (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the execution and attestation of the gift deed were duly proved on record. The Surgical Specialist, District Hospital, Mandi, had issued a certificate that the

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plaintiff was hard of hearing, but she could understand every word on loud speaking. Her mental status was alert, and she was well oriented. The Sub Registrar was the responsible ofÏcer, and his certification that the gift deed was read over and explained to the plaintiff has to be accepted as correct. Learned Trial Court had rightly appreciated the evidence. Hence, the learned Trial Court dismissed the appeal.

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Being aggrieved by the judgment and decree passed by the learned Appellate Court, the legal representatives of the plaintiff have filed the present appeal, which was admitted on the following substantial questions of law on 17.11.2008: -

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Whether Courts below have erred in concluding that Smt. Rumal Dei was mentally sound in the year 1989 at the time of registration and attestation of mutation as regards Gift Deed, and what is the evidentiary value of the medical certificate (Ex.DY) to arrive at such a conclusion?

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Whether the Courts below committed a serious error of law by not appreciating that mere registration of the Gift Deed shall not clothe the same with validity as the satisfaction recorded by the Assistant Collector, while attesting the mutation on the basis of the Gift Deed, on the objections set up before him by the plaintiff, is subject to scrutiny by the Civil Court?

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Whether the Gift Deed was registered and the mutation No.129 was attested by the concerned authorities after properly ascertaining and ensuring the disposing state of mind of the executant as regards execution of the Gift Deed?

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I have heard Mr Ashwani Sharma, learned Senior Advocate, assisted by Ms Nisha Nalot, learned counsel for the appellants/plaintiffs.

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Mr Ashwani Sharma, learned Senior Counsel for the appellants/plaintiffs, submitted that the learned Courts below erred in appreciating the evidence on record. The certificate was issued by the Surgical Specialist, who was not competent to issue it. The execution of the gift deed is shrouded in suspicious circumstances, and learned Courts below erred in upholding its validity. Therefore, he prayed that the present appeal be allowed and the decree passed by the learned Courts below be set aside.

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I have given a considerable thought to the submissions made on behalf of the appellants/plaintiffs and have gone through the records carefully.

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Substantial Question of Law Nos. 1 to 3:

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All these substantial questions of law are interlinked and interconnected; therefore, they are being taken up together for consideration.

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Plaintiff had filed a civil suit through the next friend claiming that she was of unsound mind. Order 32 Rule 15 of the

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Civil Procedure Code (CPC) deals with a suit filed by a person adjudged before or during the pendency of the suit to be of unsound mind, and also to the person who, though not so adjudged, is found on the Inquiry to be incapable by reason of any mental infirmity of protecting their interest when suing or being sued. Therefore, it is essential that the person filing a suit claiming himself/herself to be of unsound mind through his next friend has to be adjudged of the unsound mind, or the Court has to conduct an inquiry regarding the soundness of the mind. It was laid down by the Hon’ble Supreme Court in Kasturibai v. Anguri Chaudhary , (2003) 3 SCC 225: 2003 SCC OnLine SC 174 that the Court can only appoint a guardian where the person is adjudged or found on inquiry to be of unsound mind. It was observed at page 228:

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“11. On a bare perusal of the said provision, it is evident that the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by the court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. The respondent did not contend that Appellant 1 herein is of unsound mind. As noticed hereinbefore, the respondent herself had filed an application before the trial court for holding an inquiry to the effect that she suffers from mental infirmity.”

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It was laid down by the Gauhati High Court in Jhabarmal Panda v. Bhagawati Prasad Kedia , 1989 SCC OnLine Gau

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4: AIR 1990 Gau 35, that it is essential to conduct an inquiry regarding the soundness of the mind, and only thereafter can the Court proceed further. It was observed: -

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“4. I have heard Mr P.K. Goswami, learned Counsel appearing on behalf of the petitioner, as well as Mr D.N. Barua, learned Counsel appearing on behalf of the opposite party. Before I appreciate the contentions raised by the learned Counsel of both the parties, it would be apposite to consider the provisions of O. 32, R. 15 of the C.P.C. which run as follows: —

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“The provisions contained in Rr. 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who, though not so adjudged, are found by the Court on enquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interest when suing or being sued.”

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On bare perusal of the aforesaid Rule, it appears that the above Rule contemplates two kinds of cases where a person is already adjudged to be of unsound mind as defined under the Lunacy Act. That would be the first category of persons of unsound mind whose cases are covered by the provisions of R. 15 of O. 32. There may be another category of persons who are of unsound mind and not so adjudged by the Court. The second part of the provisions of R. 15 shows that in case of such persons who are not adjudged as persons of unsound mind but are found by the Court on enquiry that by reason of unsoundness of mind or mental infirmity to be incapable of protecting their interest when suing or being sued. Once this finding is arrived at, the provisions of Rr. 1 to 14

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so far may be applicable automatically get extended to the persons of those type. Rules 1 to 14 of O. 32 deal with the procedure to be followed when the plaintiff or the defendant is a minor. In case of persons of unsound mind, whether he is plaintiff or defendant, the provisions of R. 15 of O. 32 shall apply. The enquiry, as contemplated by the provisions of R. 15 of O. 32, appears to be an ex parte enquiry in the absence of the other party, if the person happens to be the plaintiff. But if he happens to be the defendant, he must make a prayer to the Court through his next friend to allow him to be represented by his next friend. It further appears that the aforesaid R. 15 provides an enquiry by the Court to be satisfied prima facie and to give a finding that the provision of O. 32, Rr. 1 to 14 gets extended because the person appears to be of unsound mind or having such mental infirmity, thus making him incapable of protecting his own interest. This view also finds support from the view expressed in Somnath v. Tipanna Ram Chandra Janu as reported in AIR 1973 Bom 276 . It is clear that if the plaintiff happens to be a person of unsound mind, not being capable of protecting his interest, he must file the suit through his next friend and the next friend should first apply and obtain a finding of the Court under the provisions of O. 32, R. 15 that the plaintiff is, in fact, a person of unsound mind. Similarly, if the defendant happens to be a man of unsound mind and not capable of protecting his interest, the next friend must make an application supported by an afÏdavit to detain a decision from the Court after an enquiry under O. 32, R. 15 of the C.P.C. Therefore, in the present case, the second part of the aforesaid R. 15 is attracted.

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6. I have perused the decisions as cited before me by the learned Counsel for the petitioner. It appears that the ratio of the aforesaid decisions contemplate that as and when a petition is made by next friend praying for an enquiry under the provisions of O. 32, R. 15 of C.P.C. the Court is to enquire and after being satisfied that in fact

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the defendant or plaintiff, as the case may be, is of unsound mind and not capable of protecting his interest in the litigation, allow the next friend to avail and proceed with the suit.”

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Madras High Court also held in Shakunthala Devi v. K.S. Naidu, AIR 2005 Mad 56, that the Court has to conduct an inquiry. It was observed: -

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“13. As per Order XXXII, Rule 15, CPC, persons of unsound mind or persons so adjudged in the same position as minors for the purpose of Rules 1 to 14 (except Rule 2-A) and for that purpose, the trial Court should examine the alleged lunatic either in open Court or in Chambers and in the presence of the medical expert. The trial Court has got ample power to compel the attendance of the alleged lunatic, viz., plaintiff, before it and to submit herself for medical examination.”

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In the present case, no such inquiry was conducted.

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The plaintiff never appeared before the Court, and no expert was examined to prove that the plaintiff was of unsound mind. The Court only issued the summons in routine without adjudicating the fact that the plaintiff was of unsound mind. Thus, the very premise of the suit that the plaintiff was of unsound mind is not established.

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Bansi Lal (PW2) and Budhi Singh (PW3) stated that the plaintiff suffers from speech, hearing and cognitive

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disability; however, they are not medical experts and their testimonies to this effect cannot be relied upon.

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Harnam Singh (PW5) stated that he had attested Mutation No.129. He had made inquiries of the plaintiff Rumal Dei. She disclosed her name and the name of Biasa and did not reply to any other question. She did not appear to be mentally challenged, but he had called for the medical certificate. A medical certificate was produced before him, and he had attested the mutation. His testimony is not sufÏcient to prove that the plaintiff, Rumal Dei, was suffering from cognitive disability. A certificate (Ex. DY) issued by a Surgical Specialist was produced before him, in which it was mentioned that Rumal Dei was hearing impaired, but could hear if talked to loudly. It was submitted that the Surgical Specialist was not competent to issue a certificate regarding the mental faculties of a person. Be that as it may, he is more competent than a layperson to depose about the mental conditions of a person, and the certificate cannot be discarded because he has no qualification regarding the mental faculties.

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I.D. Sharma (DW2) stated that he had scribed the gift

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deed (Ex.DW1/A) as per the wishes of Rumal Dei in the presence of Ashok, Kuldeep and Prem Chand. He read over and explained it to Rumal Dei, who acknowledged its correctness. He stated in his cross-examination that Tarsem had called him, and the money was paid by Tarsem. Sub Registrar accompanied him. The gift deed was written inside the house. He denied that the plaintiff was suffering from speech and hearing disability.

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Kuldeep (DW3) stated that Rumal Dei had got written a gift deed (Ex.DW2/A) in his presence, which was read over and explained to her. She acknowledged its correctness and put her thumbprint. He, Ashok Kumar and Prem Chand were present. He signed the gift deed. He stated in his cross-examination that he was called by Tarsem. He did not know who had called Inder Dev and the Tehsildar. The gift deed was written inside the room.

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Chander Shekhar (DW4) stated that the gift deed was written in his presence by I.D. Sharma at the instance of Rumal Dei. He, Hari Singh and Ashok had witnessed the execution. The gift deed was read over and explained to Rumal Dei, who acknowledged its correctness and put her thumbprint. He

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identified his signatures. He stated in his cross-examination that Rumal Dei had visited Ghumarwin with Tarsem and Biasa. The documents were purchased at Ghumarwin. Rumal Dei became ill, and she was taken home.

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Chander Dev, Tehsildar, stated that the gift deed was presented by Rumal Dei. She was identified by Chander Shekhar and Hari Ram. He made inquiries from Rumal Dei, and she answered them. She put her thumbprint. He stated in his crossexamination that I.D. Sharma and the clerk had accompanied him. Rumal Dei and Biasa had not accompanied him. The gift deed was written in the house of Rumal Dei.

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Learned Courts below had rightly pointed out that the statements of the witnesses produced by the defendants corroborated each other. This was a pure finding of fact, and there is no perversity in it.

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Therefore, the plaintiff had failed to prove that she was mentally challenged and incapable of executing a gift deed. The evidence led by the defendant, on the other hand, proved that Rumal Dei was hearing and speech impaired but not mentally challenged. She had executed the gift deed in her sound

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disposing mind, which was duly read over and explained to her.

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Therefore, learned Courts below had rightly held that the plaintiff had executed the gift deed in her sound disposing state of mind, and the authorities had rightly registered the gift deed and the mutations. These substantial questions of law are answered accordingly.

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Final Order:

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