Dismissed

M.K.Mukundan v. Korothan Dineshan

Kerala HC10 Aug 2022RSA/18/2016

Case brief

AI extract

What is this about?

In this regular second appeal, the appellant challenged the dismissal of a suit for declaration and injunction claiming the plaintiff was mentally infirm at the time of executing a sale deed. The High Court upheld the lower courts' findings that the medical evidence was insufficient to establish incapacity and that the registered document was validly executed, finding no substantial question of la

What did the court decide?

The appeal was dismissed as devoid of merit, upholding the judgment and decree of the lower courts.

M.K.Mukundan Vs Korothan Dineshan — Property and Title | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE M.R.ANITHA

¶4

WEDNESDAY, THE 10^TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944

¶5

RSA NO. 18 OF 2016

¶6

AGAINST THE JUDGMENT AND DECREE DATED 4.7.2015 IN AS

¶7

133/2010 OF PRINCIPAL SUB COURT, THALASSERY

¶8

AND AGAINST THE JUDGMENT AND DECREE DATED 3.3.2010 IN OS

¶9

265/2006 DATED 31.3.2010 OF MUNSIF COURT, KUTHUPARAMBA

¶10

APPELLANT/APPELLANT/SUPPLEMENTAL 2ND PLAINTIFF:

¶11

M.K.MUKUNDAN

¶12

AGED 57 YEARS

¶13

S/O.RAMAN,PARAKANDY HOUSE,MUNDERI AMSOM,MACHERI DESOM,P.O.MOUVENCHERRY.

¶14

BY ADV SRI.P.U.SHAILAJAN

¶15

RESPONDENTS/DEFENDANTS & SUPPLEMENTAL DEFENDANTS:

¶16

1 KOROTHAN DINESHAN AGED 41 YEARS S/O MANDAN,P.O.KOLARI-670702.

¶17

2 M.P.GANGADHARAN,(DIED) (LHR IMPLEADED) AGED 49 YEARS

¶18

S/O.RAMAN,PANDALAPARAMBIL,KALLUR,P.O.MATTANUR670702.

¶19

3 M.P.SOBHANA AGED 51 YEARS

¶20

D/O.RAMAN,PANDALAPARAMBIL,KALLUR,P.O.MATTANUR670702.

¶21

4 DR.A.JOSEPH AGED 68 YEARS

¶22

S/O.JOSEPH,KANDAMKUNNU AMSOM,KAITHERI DESOM, P.O.NIRMALAGIRI-670701.

¶23

R.S.A.No.18/2016

¶24

¶25

5 M.K..NARAYANAN,(DIED) (LHRS IMPLEADED) AGED 70 YEARS S/O.RAMAN,PREM NIVAS,475,PILLAYARKOVIL STREET, PARAMARTHALINGAPURAM,KANYAKUMARI.

¶26

6 M.P.BALAN AGED 65 YEARS

¶27

S/O.RAMAN,NEAR MANJID,NELLOONNI,PAZHASSI AMSOM DESOM,PIN-670702. 7 M.P.SANTHA AGED 61 YEARS S/O.RAMAN,PINDALAPARAMBU HOUSE,KOLARI AMSOM, KALLUR DESOM-670702. 8 M.P.RAMANI AGED 60 YEARS D/O.RAMAN,KANHANGAD,KOTTACHERY,KASARAGOD-671315. 9 PREMALATHA W/O.LATE NARAYANAN,PREMA NIVAS,PARAMARTHALINGAPURAM,KANNYAKUMAR,TAMIL NADU-629 702. 10 NAMITHA D/O.LATE NARAYANAN,PREMA NIVAS,PARAMARTHALINGAPURAM,KANNYAKUMAR,TAMIL NADU-629 702.

¶28

11 NIMEESH S/O.LATE NARAYANAN,PREMA NIVAS,PARAMARTHALINGAPURAM,KANNYAKUMAR,TAMIL NADU-629 702.

¶29

LEGAL HEIRS OF DECEASED R5 ARE IMPLEADED AS ADDL.R9 TO R11 AS PER ORDER DATED 30.06.2022 IN IA.3/2020, 12 CHULLIYATT PUTHIYAVEETTIL MRIDULA W/O.SAJEEVAN,SAMRUDHI,KUMMANAM,DEEZHALLUR AMSOM,ELAMPARA DESOM,P.O.ELAMPARA,KANNUR DISTRICT,PIN-670 595. ADDL.RESPONDENT 12 IS IMPLEADED AS PER ORDER DATED 30.06.2022 IN IA.5/2020.

¶30

R.S.A.No.18/2016

¶31

¶32

13 SUJANA T. AGED ABOUT 43 YEARS,THARAMMEL HOUSE,MUYYAM,VADAKKANCHERRY P.O.,KARIMBAM (VIA),KANNUR DISTRICT,PIN-670 142. LEGAL HEIR OF DECEASED R2 IS IMPLEADED AS ADDL.R13 AS PER ORDER DATED 30.06.2022 IN IA.1/2021 BY ADVS. SRI.P.BHARATHAN SRI.GRASHIOUS KURIAKOSE SR. SRI.GEORGE MATHEWS

¶33

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2022, THE COURT ON 10.08.2022 DELIVERED THE FOLLOWING:

R.S.A.No.18/2016

M.R.ANITHA, J

****************** R.S.A.No.18 of 2016

¶38

Dated this the 10^th day of August, 2022

¶39

JUDGMENT

¶40

This Regular Second Appeal has been directed against the judgment and decree in A.S.No.133/2010 on the file of Principal Sub Court, Thalassery which arouse out of the judgment and decree in O.S.No.265/2006 on the file of Munsiff's Court, Koothuparamba. (Parties would hereafter be referred as per their status before the trial court)

¶41

The suit was one for declaration and consequential injunction originally filed by the plaintiff through the next friend alleging that the plaintiff is mentally infirm. The plaint schedule property was obtained by the plaintiff as per partition deed No.1050/1980. It is alleged that plaintiff is infirm due to senility

¶42

R.S.A.No.18/2016

¶43

¶44

and connected ailments and hence he is represented by his son, the next friend. Defendants 2 and 3 are also his children. Plaintiff had executed a registered Will No.72/99 of S.R.O, Mattannur in favour of his next friend bequeathing half of the plaint schedule property in favour of the next friend. Pending the proceedings, plaintiff died and the next friend has been impleaded as the supplemental second plaintiff and it is alleged that the possession of the portion of property so bequeathed was entrusted with the supplemental second plaintiff. Before one year of the filing of the suit, the plaintiff met with an accident and sustained serious injuries and thereafter he was unable to walk and was confined to his house. All the expenses for the treatment was met by the supplemental plaintiff. So, for the last six months, the plaintiff was mentally and physically infirm and hence he is incapable of knowing the nature of his acts and forming a rational judgment as to their impact upon him. The plaintiff had been under the custody and control of second and third defendants. The supplemental plaintiff went abroad in

¶45

R.S.A.No.18/2016

¶46

¶47

search of job. While so, he got information from his wife that the second and third defendants manipulated some documents with respect to the plaint schedule property and it was learnt that second and third defendants taking advantage of the mental infirmity of the plaintiff got executed document No.1862/06 of S.R.O Mattannur in favour of the first defendant. Then, the supplemental plaintiff returned from abroad and plaintiff was ignorant of such transaction. The first defendant is a close friend of the second defendant and the plaint schedule property is situated on the side of T.C. Road and property will fetch a value of Rs.20,000/- to Rs.25,000/- per cent and would have fetched an amount of Rs.4,00,000/- in total but it has been shown as sold for a meager amount of Rs.64,000/-. The plaintiff has no need to sell the property. According to the supplemental plaintiff, plaintiff has not executed the said document and he was incapable of protecting his interest and hence the document No.1862/2006 of S.R.O Mattannur is invalid and unlawful and is not binding on the plaintiff and the plaint schedule property.

¶48

R.S.A.No.18/2016

¶49

¶50

Hence suit has been filed by the plaintiff through the next friend.

¶51

Pending the proceedings plaintiff died and the

¶52

remaining legal representatives were impleaded as defendants 5 to 8 and defendants 2 and 3 were also recorded as legal representatives of deceased plaintiff.

¶53

Defendants 1 to 4 and 6 to 8 filed written statement. 6^th defendant remained ex parte. The entire allegation regarding the mental infirmity of the plaintiff is stoutly denied. The plaintiff did not suffer any senility and ailments. The supplemental plaintiff is not entitled to represent the plaintiff and hence the suit is liable to be dismissed on that ground. Memory of the plaintiff never faded away and he was sufficiently intelligent and logical and his speech was coherent. Document No.1826/2006 was executed by the plaintiff in favour of the 1^st defendant which is a valid assignment. The consideration was fixed by negotiation and it was the plaintiff who instructed the scribe to prepare and register the document. It is denied that the consideration of Rs.64,000/- fixed to the property is meager. First defendant sold

¶54

R.S.A.No.18/2016

¶55

¶56

the property in favour of one Dr.A.Joseph who has been subsequently impleaded as the 4^th defendant.

¶57

Defendants 2 and 3 also filed separate written statement supporting the other defendants. Earlier, O.S.No.202/2006 was filed for the very same purpose and a Commissioner was appointed in that case who examined the plaintiff and reported that the plaintiff has no mental infirmity and accordingly that suit was dismissed as not pressed. Supplemental plaintiff was not contributing anything towards the treatment of the plaintiff. Plaintiff himself executed document No.1860/2006 in the name of the 1^st defendant and before that he executed a Will by going to the same Sub Registrar office. After the execution of the Will in favour of the supplemental plaintiff he was not looking after the affairs of the plaintiff and hence the plaintiff assigned the plaint schedule property to meet his expenses.

¶58

Fourth defendant filed separate written statement contending that the plaint schedule property was assigned in

¶59

R.S.A.No.18/2016

¶60

¶61

favour of first defendant on 01/08/2006 on valid consideration. Thereafter, he purchased plaint schedule property from the 1^st defendant as per sale deed dated 10.09.2006 for valid consideration and he is a bona fide purchaser. Allegation regarding infirmity and mental incapacity of the plaintiff is denied. 6^th defendant filed separate written statement supporting the contentions of the other defendants. Defendants 7 and 8, the other legal representatives of the plaintiff, also supported the contentions of other defendants.

¶62

PW1 to PW6 examined and Exts.A1 to A12 marked

¶63

from the side of the plaintiff. DW1 to DW3 marked and Exts.B1 to B6 marked from the side of the defendants. CW1 Advocate Commissioner was further examined and Ext.C1 also marked.

¶64

On evaluating the facts and circumstances and evidence learned Munsiff dismissed the suit finding that supplemental plaintiff failed to prove that plaintiff, deceased Raman was incapable of knowing the nature of his acts and was incompetent to make a rational judgment at the time of

¶65

R.S.A.No.18/2016

¶66

¶67

execution of the sale deed Ext.A5 and accordingly the suit was dismissed, against which A.S.No.133/2000 was filed before the Subordinate Judge's Court, Thalassery. On re-appreciation of facts and circumstances and evidence, the first appellate court confirmed the judgment and decree passed by the learned Munsiff. Aggrieved by the same, appellant approached this Court in this Regular Second Appeal.

¶68

Notice was issued to the respondents. Pending the proceedings 5^th defendant died and his legal heirs were subsequently impleaded as supplemental respondents 9 to 11.

¶69

When the matter came up for admission, learned counsel for the appellant as well as Senior Adv.Grashious Kuriakose who appeared for the 4^th respondent were heard. According to the learned counsel for the appellant, supplemental plaintiff through oral and documentary evidence by examining PWs 4 and 6 could prove that the plaintiff was insane and was

¶70

not mentally competent to execute Ext.A5 sale deed in favour of the 1^st defendant. Evidence of CW1 and Ext.C1 report would

¶71

R.S.A.No.18/2016

¶72

¶73

convincingly establish that deceased Raman was incapable of understanding things and take rational decisions during the time of execution of Ext.A5 and hence according to him, there is ample evidence including medical evidence to support the allegations in the plaint that the plaintiff was not mentally sane and firm at the time of execution of Ext.A5 and hence it will not sustain in law.

¶74

Learned counsel for the 4^th respondent, on the other hand, would vehemently contend that concurrent findings of facts by the two courts with regard to mental condition of the plaintiff at the time of execution of Ext.A5 cannot be challenged in the second appeal by the supplemental plaintiff. He would also contend that as per Sub Section (3) of Section 34 of the Registration Act, 1908, there is a duty cast upon the Registering Officer to enquire about the genuineness of the registered documents. He placed reliance on Prem Singh and Ors. v.

¶75

Birbal and Ors. : AIR 2006 SC 3608 : (2006) 5 SCC 353 : MANU/SC/8139/2006 . Plaintiff has no allegation against the

¶76

R.S.A.No.18/2016

¶77

¶78

Sub Registrar concerned who registered Ext.A5 document and hence on evaluating the facts and circumstances, according to him, there is nothing in evidence to substantiate the allegations of the plaintiff against the execution of the sale deed. He would further contend that evidence of PW4 and PW6, Doctors will not establish that the plaintiff was insane or was incapable of understanding the things or to execute the document during the relevant time and the document marked through them also are only prescriptions and no medical certificates have been produced. So, according to him, there is no reason whatsoever to interfere with the factual findings correctly entered into by the two fact finding bodies and in order to entertain a second appeal this Court should be satisfied of substantial question emerges for consideration. Learned counsel placed reliance on Avtar Singh v. Bimla Devi : 2021 (5) KLT 1133 (SC) : 2021 (5) KLT OnLine 1133 (SC) and S.Subramanian v. S.Ramasamy and Others : (2019) 6 SCC 46 and also Gurnam Singh v. Lehna Singh : (2019) 7 SCC 641 , in this context.

¶79

R.S.A.No.18/2016

¶80

¶81

Learned counsel for the appellant mainly attacks the concurrent judgments based on the finding of the capacity of the deceased plaintiff to execute Ext.A5 sale deed. CW1 is the Commissioner deputed from the Court to examine the plaintiff and to report about his mental and physical conditions.

¶82

The report of the Commissioner is to the effect that at the time of his examination plaintiff was not mentally sane or firm due to senility and ailments and his physical condition is also reported to be weak and speech was unstable and co-ordination and flow of memory is also reported to be weak.

¶83

Supplemental plaintiff further relies on the evidence of PW4 and PW6 the Doctors who issued Exts.A3 and A4 prescriptions. PW4 is a Doctor practising at Lakshmi Memorial Hospital and Ext.A3 prescription is proved to have been issued by him and according to him, the deceased plaintiff was having COPD (Chronic Obstructive Pulmonary Disease) and dementia.

¶84

According to him, it is not possible for such a patient to do anything with such skill and intelligence. At the same time, he

¶85

R.S.A.No.18/2016

¶86

¶87

admitted that dementia is an old age disease and main types of dementia are senile dementia and multi infarct dementia and he also deposed that senile dementia is incurable and medicine prescribed in Ext.A3 is only supportive medicine. Even in chief examination he would depose that on seeing a patient, it is not possible to diagnose dementia and it is possible only by intelligent examination of the patient and that sometimes he may answer questions properly. But, during cross examination, he categorically admit that he was examining the deceased Raman for the first time and further admitted that he was not treated as an inpatient though he is running a hospital and further admitted that no scientific test is conducted to ascertain the type of dementia and it was only a provisional diagnosis. Further, he categorically admitted that he is not a Psychiatrist and he has not referred the patient to a specialist and it is not possible to say how long he was suffering from the disease and it may be of long duration. Further, he categorically admitted that dementia may have lucid intervals and during those periods the patient would

¶88

R.S.A.No.18/2016

¶89

¶90

be more oriented and he could understand things somewhat during this period. So, on evaluating the evidence of PW3 it is difficult to come to a conclusion that the deceased/plaintiff was in such a condition of incapable of understanding the acts done by him or that he is an insane person. Moreover, no medical certificate has been issued by him and according to him, this is the first examination of the patient and further that the patient would have lucid intervals and during that time he would be able to understand things to some extent and would be more oriented. Admittedly, he is not a Psychiatrist also. He had conducted only a clinical examination of the patient and no X-ray scanning or any specialised management was also not advised by him and the patient was also not admitted in the hospital. From all those factors, it can be reasonably be concluded that the evidence of PW4 is quite insufficient to come to a conclusion that the deceased was incapable of understanding things or the consequence of acts done by him.

¶91

R.S.A.No.18/2016

¶92

¶93

PW6 was the Assistant Surgeon at Government Hospital, Mattannur who issued Ext.A4 prescription. On

¶94

examining the deceased plaintiff on 20.07.2006, the illness noted is senile dementia with depressive illness and according to him usually this illness would affect old age people and complete recovery is impossible and according to him, the main effect of senile dementia is lack of memory and shortage of arithmetical ability and rational instability and there will not be any creative thinking to such persons and intelligence would be affected. He also admitted during cross-examination that he is seeing the patient for first time and in Ext.A4 either the history of the patient or clinical findings or investigation have not been noted. He also do not remember whether the patient has come alone or with anybody else. The mental condition of the person affected with senile dementia may not be the same always and sometimes if matters are made clear they can understand matters. He also cannot answer as to whether there will be any obstruction to power of thinking due to depressive illness.

¶95

R.S.A.No.18/2016

¶96

¶97

During cross-examination, further he admit that, to confirm dementia comprehensive examination is necessary and there are several steps for understanding or diagnose dementia. Further, he deposed that since he had not noted any findings he cannot say how he diagnosed the disease and according to him, there are three types of dementia and some dementia are curable. So, on evaluating the evidence of PW6 also it could be seen that without conducting proper test and analysis, on a first examination, PW6 diagnosed the disease as senility with depressive illness and nothing is discernible from Ext.A4 about the history or the clinical findings or investigation done by him to diagnose the disease. He also even do not remember whether the patient came alone to consult him. So, all those factors only leads to an inference that the patient referred in Ext.A4 is not that much affected by the disease and only a general opinion or diagnosis has been made by PW6 and hence the evidence of PW4 and PW6 cannot be relied on as an authority to find that the deceased Raman was suffering from mental infirmity or

¶98

R.S.A.No.18/2016

¶99

¶100

incapability for understanding things at the time of execution of Ext.A5 as has been rightly found by both the courts below.

¶101

Defendants have got a specific contention that on 09.01.2006 supplemental plaintiff along with the father had gone to Mattannur Sub Registrar Office, Mattannur. Evidence of PW1 supplemental plaintiff, in this context, would be relevant. He would plead lack of memory whether he had gone along with father on 09.01.2006 to the Sub Registrar Office. But, he would further categorically admit that there was a shop near Mattannur Syna Talkies belonging to the father and as per the Will it was set apart to him and father had gone along with him to sell that property, though he further added that it was the second defendant who brought the father. But he categorically further admitted that the property was sold together by himself and father and certified copy of that sale deed is also produced as Ext.B1. So, the above evidence of PW1 also would go to show that himself has sold a property of the father in the year 2006 by getting the document executed together by himself and father. It

¶102

R.S.A.No.18/2016

¶103

¶104

is in the same year that Ext.A5 document now sought to be set aside is also executed by the father. So, it is in this context that the evidence adduced by the defence assumes importance.

¶105

It has come out in evidence that one of the other brothers of the plaintiff had filed O.S.No.202/2006 with the very same relief for setting aside the document. Along with that case, a Commissioner was appointed to know the physical and mental condition of the father and that Commissioner was examined as DW3 and certified copy of the report is marked as Ext.B6. Learned counsel for the plaintiff would vehemently contend that the said suit was filed in collusion between the defendants, brothers and the person who examined by the Commissioner actually is not the deceased plaintiff. Ext.B6 Commission report would go to show that on 14.09.2006 the Commissioner visited the house of the deceased plaintiff and questioned him in the presence of second and third defendants as well as in the presence of his wife Cheerutti. Commissioner also reported that though attempt was made to issue notice to the first defendant

¶106

R.S.A.No.18/2016

¶107

¶108

he was not present in the house and hence notice could not be served and on questioning the deceased plaintiff on that day the Commissioner has categorically reported that the plaintiff has answered properly to the questions put to him without taking time for answering the questions and hence the deceased plaintiff has no diseases like dementia and he is sane. Supplemental plaintiff during examination, though denied the visit of the Commissioner and examination of the father by the commissioner on further questioning during cross-examination, he would admit that when the Commissioner in that case came, his mother and some siblings were present in the house and his wife was not present. So, that also would indicate that DW3, the Commissioner had visited the house of the plaintiff at the time of filing O.S.No.202/2006 and reported about the mental stability of the plaintiff and his capacity to answer the questions put to him by the Commissioner rationally.

¶109

It has also come out in evidence that the deceased plaintiff sustained a road traffic accident and Ext.A11 is the

¶110

R.S.A.No.18/2016

¶111

¶112

treatment certificate dated 04.12.2006 issued from A.K.G Memorial Co-operative Hospital to deceased Raman and the injury noted is tenderness on his left hip and X-ray shown left hip fracture and he was admitted from 11.10.2005 (mistakenly stated as 11.10.2006) to 26.10.2005. Ext.B4 is the pass book of the deceased plaintiff which would show that he has account at Kolarai Service Co-operative Bank, Mattannur and it was opened on 08.12.2006 and a cheque for Rs.39,779/- was encashed and credited to his account on 09.12.2006 and that amount was withdrawn by the plaintiff on 09.12.2006. Ext.B5 is the copy of the award of Lok Adalath in O.P.(M.V) No.432/2006 which is the claim petition filed by the deceased plaintiff for the compensation for the injuries sustained by him in the road traffic accident. That would also indicate that even during 2006, the plaintiff was conducting his case by himself by filing O.P.(M.V) No.432/2006 and not through a next friend and received the compensation by himself. The disputed document in this case has been executed by the deceased Raman on 01.08.2006, that is, even before the

¶113

R.S.A.No.18/2016

¶114

¶115

receipt of compensation by him in the motor accident claim. Moreover, the supplemental plaintiff and deceased plaintiff together had executed a sale deed on 09.01.2006 for selling a property with respect to which a Will was executed in favour of supplemental plaintiff in 1999.

¶116

So, all those factors would only probabilise the case of the defendants that the deceased/plaintiff was not suffering from any mental infirmity making him incapable of doing things or taking decisions rationally.

¶117

Learned counsel for the respondent would further contend that Ext.A5 is a registered document and there is a presumption regarding its genuineness and he would also contend that as per Sub Section (3) of Section 34 of the Registration Act there is a duty cast upon the Registering Officer to enquire whether or not the document was executed by the person by whom it purports to have been executed and satisfy himself as to the identity of the persons appearing before him. So, only on satisfying the genuineness of the execution of the

¶118

R.S.A.No.18/2016

¶119

¶120

document and identity of the executor, Sub Registrar would register the document. The supplemental plaintiff has no complaint against the Sub Registrar who registered the document and during his examination, he has categorically admitted that he does not even know who is the Sub Registrar during the relevant time and it would indicate that he had not made any enquiries in that regard. There is also a presumption under Section 114(e) of the Evidence Act that official acts have been regularly performed.

¶121

Learned counsel, in this context, bring to my attention Prem Singh wherein it has been held that there is a presumption that a registered document is validly executed. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. Learned counsel also bring to my attention Bhasi v. Thomman : MANU/KE/1444/2022 on this aspect.

¶122

In the present case, even though the supplemental plaintiff made attempts to establish that the deceased plaintiff was not mentally sound in executing the disputed document, he

¶123

R.S.A.No.18/2016

¶124

¶125

could not establish through medical evidence or otherwise about the mental incapacity of the deceased plaintiff.

¶126

The learned counsel for the 4^th respondent would also contend that there is no substantial question of law emerging for consideration so as to entertain this second appeal. The learned counsel placed reliance on Avtar Singh wherein it has been held that mere findings of fact cannot be interfered with in exercise of the second appeal jurisdiction. In S.Subramanian , relied on by the counsel, two Judge Bench of the Apex Court while dealing with Section 100 of the Code of Civil Procedure held that second appeal would be maintainable only on substantial question of law and it does not lie on question of facts or law and existence of substantial question of law is essential for the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. It is categorically held that substantial question of law can be said to have been arisen (a) when material or relevant evidence is not considered, which, if considered, would have led to an opposite conclusion and (b) where a finding has been arrived at by the

¶127

R.S.A.No.18/2016

¶128

¶129

appellate court by placing reliance on inadmissible evidence which if it was omitted an opposite conclusion is possible. It is also held that while deciding the second appeal High Court is not required to re-appreciate the evidence on record and come to its own conclusion and findings of facts recorded by lower court cannot be set aside. Findings on appreciation of facts of first appellate court is final unless and until the findings recorded by courts below is found to be manifestly perverse and contrary to evidence on record.

¶130

In the present case, supplemental plaintiff attempted to establish that to execute the document the plaintiff was not mentally sound, he miserably failed to establish that fact by adducing any convincing evidence.

¶131

The learned counsel for the appellant would vehemently contend that the judgment passed by the courts below are perverse since the Doctors' evidence were not appreciated. But, it has been discussed at length in previous paragraphs that the evidence adduced by the plaintiff through

¶132

R.S.A.No.18/2016

¶133

¶134

PWs 4 and 6, the Doctors, will not in any way prove that the deceased plaintiff was having any serious mental illness or incapacity making him incapable to execute the sale deed. The other circumstances like the conduct of a motor accident claim by filing a claim petition and execution of sale deed by the deceased plaintiff together with supplemental plaintiff during the same year etc. also have been discussed at length in the previous paragraphs. Both courts below discussed the medical evidence and also the evidence adduced through other witnesses in a correct perspective.

¶135

On the side of the defendant, 1^st defendant was examined as DW1, 2^nd defendant as DW2 and the Advocate Commissioner in the earlier suit as DW3. On evaluation of the facts and circumstances, I am of the considered view that courts below have appreciated the facts and circumstances in a correct perspective and rightly dismissed the suit, I do not find any question of law much less any substantial question of law which emerges for consideration in this second appeal.

¶136

R.S.A.No.18/2016

¶137

¶138

In the result, appeal is found to be devoid of any merit and

¶139

hence dismissed.

¶140

(sd/-) M.R.ANITHA, JUDGE

¶141

jsr

¶142