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Monosseh Jacob Monosseh Vs. Shapurji Hormusji Harver - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 406 of 1907
Judge
Reported in(1908)10BOMLR1004
AppellantMonosseh Jacob Monosseh
RespondentShapurji Hormusji Harver
DispositionAppeal allowed
Excerpt:
lunatic, contracts, by-lunacy not known to the other contracting party-contract act (ix of 1872), sections 12, 30-specific relief act (1 of 1877), sections 38, 41 - general presumption of insanity, rebuttal) of-expert opinion in questions of insanity-value of expert opinion-burden of proof in cases of insanity-general rules of estimating evidence as to insanity.; if a party to a contract seeks to enforce a contract which is void under section 12 of the contract act on account of the absence of capacity to contract in the other contracting party, it is not permissible to give equitable relief. however, statutory relief can be given under sections 38 and 41 of the specific relief act when recession of a contract is asked for on this ground.; where a person is not proved to be a lunatic on.....macleod, j.1. the plaintiff sues for the balance due on two mortgages executed by the defendant, (1) on the 5th june 1905 to secure an advance of rs. 22,000 ; (2) on the 23rd february 1900 to secure a further advance of rs. 15,000.2. after the suit was filed the plaintiff apprehending that defendant was not of sound mind obtained an order for the appointment of defendant's brother sorabjee as guardian ad litem. it is now contended that the plaintiff cannot recover on the ground that the defendant when he executed the said mortgages was not of sound mind and that therefore he was not competent to contract within the meaning of section 12 of the contract act.3. defendant's sister bai aimai died in october 1902 and under her will defendant became entitled to a legacy of rs. 4,000 and a fifth.....
Judgment:

Macleod, J.

1. The plaintiff sues for the balance due on two mortgages executed by the defendant, (1) on the 5th June 1905 to secure an advance of Rs. 22,000 ; (2) on the 23rd February 1900 to secure a further advance of Rs. 15,000.

2. After the suit was filed the plaintiff apprehending that defendant was not of sound mind obtained an order for the appointment of defendant's brother Sorabjee as guardian ad litem. It is now contended that the plaintiff cannot recover on the ground that the defendant when he executed the said mortgages was not of sound mind and that therefore he was not competent to contract within the meaning of Section 12 of the Contract Act.

3. Defendant's sister Bai Aimai died in October 1902 and under her will defendant became entitled to a legacy of Rs. 4,000 and a fifth share in the residue of her estate, which was sworn for purposes of probate at nearly four lakhs. This one-fifth share was the subject of the abovementioned mortgages. Defendant was present at the reading of the will and its terms were explained to him in detail a few days afterwards by Mr. Kola, solicitor for the executrices. He must then have become acquainted with the fact that a one-fifth share of the residue would amount to a very considerable sum, at least fifty or sixty thousand rupees. Defendant left school about 1892 and lived with his mother until her death in 1896. After that he lived with his sister Soonabai and apparently had never attempted to earn his own livelihood. His health was not good and in 1901 he had been examined by Dr. Baker and Dr. Eduljee Nusserwanji. From the evidence of hisbrother Sorabjee he appears to have been then suffering from general debility. In 1903 he went to live by himself in Mori Road Mahim and remained there till the beginning of 1906, when he went to live at the Taj Hotel. In December 1906 he was asked by the hotel management to leave and from that time until August 1907 when he was admitted on the application of Sorabjee to the Colaba Lunatic Asylum, there is no record of his having any settled abode. In January 1906 the defendant paid to the plaintiff Rs. 7,700 On account of the capital amount due on the first mortgage and continued to pay interest on both mortgages regularly up till September 1906. At the time the suit was filed in June 1907 interest was in arrears since September 1906 and the plaintiff was entitled to exercise his power of sale under the mortgage deeds. It was contended that the suit is premature and that it should not have been filed until the periods mentioned in the mortgage deeds for repayment of the principal amounts had expired, but it is obvious that if the terms of the contracts had been broken and the plaintiff was entitled to sell he was entitled to come to Court and ask for a decree.

4. If at the time he executed these mortgages the defendant was of unsound mind, then they are void; nor will the provisions of Section 65 apply as there never were any contracts which could be discovered to be void. Mohori Bibee v. Dharmodas Ghose ILR (1903) Cal. 539 . P.C.. By English law a person of unsound mind is no more capable of entering into a contract than he is under the Indian Contract Act, but the rule which now prevails both at law and in equity, in reference to contracts entered into by a person of apparently sound mind, and not known by the other contracting party to-be insane, is that such contracts if executed and completed and if fair and bona fide will not be held void or set aside. In Molton v. Camroux (1849) 18 L.J. Exh. 356 Lord Cranworth said after stating the principle, that it was a doctrine of necessity and a contrary doctrine would render all ordinary dealings between man and man unsafe. Even though such a contract might be void at law it will only be set aside in equity for fraud : Hassard v. Smith (1872) Ir. Rep. 6 Eq. 429. But the case is different if a contract is void; by statutory enactment. In Mohori Bibee v. Dharmodas Ghose their Lordships of the Privy Council referred, with approval to the following passage from the judgment of Homer L.J. in Thurstan v. Nottingham Permanent Benefit Building Society [1902] 1 Ch. 1: ' The short answer is that a Court of Equity cannot say that it is equitable to compel a person to pay any moneys in respect of a transaction which as against that person the Legislature has declared to be void.'

5. Therefore if one party seeks to enforce a contract which is void under Section 12 of the Contract Act on account of the absence of capacity to contract in the other contracting party, it is not permissible to give equitable relief However statutory relief can be given under Sections 38 and 4 of the Specific Relief Act when rescission of a contract is asked for on this ground. The question then in this case is one of fact which the Court has to determine as a jury. Was the defendant capable of understanding these two mortgage transactions and was he capable of forming a rational judgment as to their effect on his interests

6. I am satisfied that, the plaintiff had no suspicion that defendant was in any way mentally deficient so as to make it possible that he might not be capable of understanding these transactions or of forming a rational judgment of their effect upon his interest. The defendant had not been proved to be lunatic on inquisition and therefore the general presumption of sanity has to be rebutted. This can be done by proving that the defendant's mind was completely deranged so that he was incompetent to enter into any contract, or by proving that he was of unsound mind with regard to these two particular contracts. Mr. Bahadurji asks me to hold that at any rate from the beginning of 1905 defendant was suffering from complete dementia and that therefore it lies on the plaintiff to show that those contracts were executed, during lucid intervals In dealing with the evidence on this point I shall give effect to the doctrine of necessity referred to above as far as I can by following the principle adopted as the basis for their decision by the Privy Council in Atar Singh v. Thakar Singh : (1908)10BOMLR790 , namely, that when the onus lies as it does in this case on the defendant in seeking to set aside on the ground of incompetency to contract a solemn deed executed by him conjecture cannot be accepted as a substitute for proof.

7. This is not a case for weighing probabilities. There must be conclusive proof that the defendant was incapable of entering into these contracts. Dealing first with the present condition of the defendant he is said to be suffering now from general paralysis of the insane. But it appears from the medical evidence in the case that that disease derives its name from the symptoms apparent only in the very last stages and that it cannot in its early stages be distinguished from delusional insanity. It can only be diagnosed with certainty when the motor symptoms become apparent, such as irregular dilation of the pupils, and tremors of the facial muscles and tongue. When the defendant was admitted to the asylum on the (sic) August 1907 the certifying doctors stated he was suffering from delusional insanity. Dr. George, the Resident Doctor, has told us he diagnosed that defendant was suffering from general paralysis of the insane about a month after his admission, but nothing was recorded regarding this until May 1908. Dr. Tucker, the presentSuperintendent, says he first examined the defendant on the 27th April 1908 and found that the motor symptoms were present. I may take it as proved then that these were certainly not discovered before September 1907. though I am not satisfied that they were, as a matter of fact discovered before Dr. Tucker took over charge asSuperintendent in April 1908. When I consider that delusional insanity is often cured, but that once a patient is found to be suffering from general paralysis of theinsane it amounts to sentence of death, it is incomprehensible to me that the diagnosis if made in September 1907 should not have been recorded immediately. Doctor Massina, who examined the defendant after the hearing of the case had commenced, observed these motor symptoms, whilst Dr. Barry who examined the defendant on the 26th August deposed that in his opinion these symptoms were not present. These motor symptoms are apparently the first signs of paresis or muscular weakness which should end in general paralysis. It is quite possible that Dr. Barry did not have the defendant under observation sufficiently long to enable him to ascertain positively whether these motor symptoms were never present and I must take it that these symptoms have been observed by Dr. Tucker, Dr. George and Dr. Massina. All agree the defendant is now a lunatic but while Dr. Barry considered he was in a good state of health and might live for a normal period of years, Dr. Tucker considered his disease was so acute that he could only live another year at the most, and Dr. George considered this case an exceptionally slow one so that defendant might live for severalyears more. That is a question which can only be proved by time. I think the effect of this conflicting evidence may be summarized by saying that the defendant is now mad' and shows signs though not constant of muscular weakness which may or may not end in general paralysis thus justifying a present diagnosis of general paralysis of the insane. It seems clear that that though a man may be said to be technically suffering from general paralysis of the insane from the moment the disease attacks him, general paralysis involving complete absence of control of the muscles and the senses may not supervene until after many years.

8. Admitting that the defendant is now a lunatic, is there sufficient evidence to satisfy me that so far back as February 1905 he was generally speaking of unsound mind.

9. From the evidence regarding the defendant's general conduct from 1896, I think there can be little doubt that he was suffering between 1896 and 1902 from general debility and that by 1902 he was subject to certain delusions, the character of which I shall deal with hereafter. Dr. Tucker, judging from his experience of the defendant's 'condition since April 1908 and the evidence which had been put before him of defendant'sbehavior before admission, has expressed the opinion that the disease of general paralysis of the insane began in 1902 and passed rapidly from the first to the second stage. In his report (Exh. 10) at the end he says : 'Defendant was a confirmed general paralytic in 1903 and at the time of the making of the two contracts in June 1905 and February 1906 he was hopelessly insane. That may be so from a medical point of view. But the phrase 'general paralytic' must be used with extreme caution from a lay point of view. To a doctor a man who suffers from delusions is mad and as general paralysis of the insane is incurable, assuming the defendant's disease is now correctly diagnosed as general paralysis of the insane, it follows the disease was incurable from the beginning, but it by no means follows that the defendant was in law generally incompetent to contract from the time the disease began. Dr. Tucker had to base his opinion on his present diagnosis taken together with facts which he was told would be given in evidence in the case. Some of these facts are not in evidence at all, some have been given in a modified form, while the effect of cross-examination on the witnesses and inferences which the Court is entitled to draw as to the truth or otherwise of their statements must be taken into consideration. It is permissible for an expert witness to say that if it is proved that a man behaved in a certain way at a certain time he must have been mad, but the Court has power to decide whether the facts have been proved, and if they are proved what is the correct inference to be drawn, since expert evidence will always differ as to what inference should be drawn even from proved facts. Mr. Bahadurji argued that the Court was bound to accept an inference drawn by an expert, but I cannot accept this contention. The opinion of an expert on facts proved or admitted is only relevant when the Court has to form an opinion on a point of science or art. Expert opinion even on admitted or proved facts will differ and then the Court has to decide which opinion it will rely on. But when the facts are not admitted the Court has first to come to a conclusion on the evidence as to what facts have been proved and then apply to such facts the various expert opinions which have been offered. But if it is not a point of science or art, the Court or jury can form an opinion without expert evidence, though the line where there no longer remains a point of science or art on which the Court has to form an opinion is not always very clearly defined. For instance, if it had been proved that the motor symptoms were present in defendant in 1905 it would require an expert to say of what disease those symptoms were the signs. But inferences from defendant's conduct may easily be drawn by the Court or a jury without the assistance of an expert. On the other hand, it may require an expert to deduce from particular acts that a certain disease is present. The case of Birkin v. Wing (1890) 63 L.T. 80 is most instructive on this question. The plaintiff filed a suit against the executor of a deceased person in the Chancery Division for specific performance of a contract made by the deceased to sell an estate. The defence of insanity was set up, it being alleged that the deceased suffered from delusions and general mental incapacity. In giving judgment Kekewich, J. said: ' It may be necessary for me to say a few words about defendant's incapacity to understand or transact any business whatever; but that is not the issue; the issue is, was Mr. Patchitt capable of transacting, and did he, in fact; understand this particular piece of business? That is the real issue, and the issue which, in one form or another, would be put to a jury if the case came before a jury; the rest of it is collateral.' The learned Judge then pointed out the difference between contractual and testamentary capacity. 'It may be that in the case of a contract quite as large a mental capacity is required (as in the case of a will) ; it is not at all difficult to conceive a case in which a man may be called upon at a critical time of life with reference to himself or his family to enter into or reject a contract which may be the making or the marring of his and their happiness, or his or their fortune. But if it is a mere question of selling a particular property for a particular sum of money, or purchasing a particular property for a particular sum of money on certain conditions, the capacity required is not, at least necessarily, so great as that required in a testamentary disposition of any complication.' It was held on the evidence that the deceased was suffering from delusions and also from general enfeeblement of mind. One of such delusions did to some extent enter into the matter of the contract but in the opinion of the Court not so far as to form the foundation of it. There was a conflict between the medical and lay evidence as to the capacity of the deceased to understand the contract he entered into and it was argued as in this case that the Court was not at liberty to accept the lay evidence as countervailing the medical evidence. On this point the learned judge said : 'I have no doubt that my duty is to weigh all the evidence and without in the least disparaging the medical evidence I think that if I come to the conclusion on the best attention I can give to the whole evidence, that there was capacity, I must find capacity, notwithstanding that the doctors unanimously and strongly say that there was incapacity,'

10. I must, therefore, first come to a conclusion as to what has been proved regarding the defendant's actions from 1902 until he was admitted into the asylum and then consider the expert evidence in the light of the facts I consider proved. Gustadji Cowasji, Head Clerk in the Esplanade Police Court, deposed that five or six years ago (1902 or 1903) defendant rushed into the Chief Presidency Magistrate's Court one day in an excited condition and made some rambling statements about his family wanting to poison him and get at his vast wealth. This was probably after Bai Aimai's death. Under her will she left Rs. 5000 each to defendant's brothers Dosabhoy and Dadabhoy, nothing to defendant's brother Sorabji. From absolute poverty the defendant became entitled to what must have appeared to him considerable wealth. I have little doubt that defendant's brothers were somewhat annoyed at his getting so much more than they did and made themselves unpleasant over it. I am not satisfied that he had the delusion of wealth before he became a residuary legatee under his sister's will, and the sudden access of what no doubt was considerable wealth, coupled with his weak state of health and the conditions under which he lived, may have given rise to delusions of wealth and grandeur and the fear that his relatives wished to poison him.

11. It is necessary, however, to observe that this is not the case of a man who having nothing at all is under the delusion that he is possessed of great wealth, but rather the case of a man who having become unexpectedly entitled to a considerable sum of money exaggerated the amount which would come to his hands and the position in the world to which he would be able to attain by means thereof.

12. Putting on one side for the present the evidence given by solicitors, and by the doctors who did not see defendant until after his admission to the asylum, there is no necessity for me to go through in detail the evidence of the other witnesses who came across the defendant during the years 1903 to 1906. A good deal of it appeared to me unworthy of credence, and most of what remained as possible to believe was greatly exaggerated. It appeared to me as if some of the evidence wasbassed by knowledge of the defendant's present condition and even if the witnesses were correctly stating what they had observed, they could easily antedate their observations. For instance, the evidence of several witnesses who said they saw the defendant in 1904 going about the streets with dirty clothes, unkempt hair and long nails must either have been concocted or antedated. Dr. Barry said he found the defendant in quite a different condition to what he had been led to expect from having read and heard the evidence given in Court and I cannot feel that the defendant's brothers are altogether free from blame in the matter. It is they who stand to profit in the end if the plaintiff cannot recover his money.

13. I am not concerned with defendant's actions after the 23rd February 1906, the date of the second mortgage, except so far as they may throw a light on the evidence of actions previous to that state. But allegations that his habits and appearance were dirty before the end of 1906, I am satisfied, are absolutely false. During the latter month of 1906 his condition must have been rapidly deteriorating, by December 1906 he had begun to drink and from then until he was admitted into the asylum his circumstances must have been piteous in the extreme. But it is inconceivable that he could have lived for several months at the Taj without anything peculiar being noticed about him beyond his taking his stick and hat into the dining room, if his appearance had been such as is described by some of the witnesses. The manager of the Taj Hotel has not been called but if defendant had appeared day after day in the public rooms of the hotel in that condition it must have been noticed. Nothing has been found against the defendant up till February 1906 except that he had certain delusions and behaved in an eccentric manner. And Doctor Tucker admitted in answer to a question put to him by the Court that he could not deduce anything more than that from the evidence he has heard. It was only possible to contend that the defendant was generally incapable by considering that evidence together with his present condition. In my opinion that is not permissible under the principle which I have laid down must guide the Court. It only amounts to conjecture and not to proof. The defendant, therefore, has not even made out acase for general incapacity which has to be rebutted by the plaintiff, but assuming he has, as long as the onus rests on him to prove general dementia it is open to the plaintiff to rely on defendant's conduct in transacting business in general and in particular in putting through the impugned transactions as evidence of capacity.

14. On the other hand it is open to the defendant to show that though he was not generally incapable he was incapable as regards these two contracts either on the ground that he suffered from delusions which influenced the contracts in such a way that his delusion formed the foundation of the contracts or on the ground that owing to general enfeeblement of mind he did not understand these particular contracts.

15. I shall therefore deal with the evidence of defendant's conduct in regard to his business transaction in general and the two contracts in particular having regard to these three questions, namely :-

(1) Whether he was generally incapable.

(2) Whether he suffered from delusions which influenced the contracts and formed the foundation for them.

(3) Whether owing to enfeeblement of mind he did not understand these two contracts.

16. From 1903 till the middle of 1906 defendant was constantly going to his solicitors, Messrs. Craigie, Lynch and Owen, with regard to his share in his sister's estate. Mr. Craigie said ' when first he came I did not notice anything peculiar about his appearance, but I always thought he was rather an eccentric man. He seemed to me as time went on to become more and more eccentric.' 'He talked more nonsense and for about I or 1 1/2 year before he left us he became unfit to manage his affairs.' In cross-examination he said: ' I never thought he was a lunatic, only his intellect was weak. He grew weaker and weaker and latterly he seemed an fit to manage his affairs. I can't fix the date exactly.' Now many people are in the opinion of others unfit to manage their own affairs but it does not necessarily follow that they are on that account incompetent to contract within the meaning of Section 12. Mr. Craigie had three large files of correspondence in connection with defendant's affairs. It is not suggested that any one came with defendant to Mr. Craigie's office so that the defendant must have been giving instructions to enable his solicitors to carry on that correspondence. Mr. Craigie said that he found defendant in his office on one occasion in 1906 and did not recognize him, he looked like a wild man from the bush. Mr. Craigie could not fix the date but he had only four interviews in 1906 with the defendant, on the 10th January, 20th February, 31st May and 27th June, and Mr. Craigie thought it was on the last interview but one which would be on the 31st May. But while defendant was employing Messrs Craigie, Lynch and Owen as his solicitors for the purpose of getting what was due to him from his sister's executrices, he was dealing with his prospective share without their advice and Mr. Craigie referred to this as a sign of eccentricity.

17. The evidence of Ardesir Jehangir Haivoy who was called by the defendant tells us what these dealings were. Ardesir was a managing clerk of Messrs Mulla and Mulla, solicitors of this Court, but he also did business on his own account as loan broker and law agent. It must be confessed that his connection with the defendant was extremely profitable to himself but that is outside the question. I am satisfied that defendant understood perfectly (sic) that he was entitled to a share in his sister's estate which he estimated would come to about Rs. 50,000. He was impatient of the delays which necessarily arose from the administration of an estate consisting mostly of immoveable property. Two years had passed since his sister had died and he was anxious to see some of the money. Ardesir says defendant came to him in December 1904 and wanted to raise a loan on his share. Negotiations were opened with plaintiff and then Messrs. Mulla and Mulla were instructed to. write to Messrs. Pestonjee, Rustim and Kola and ask for inspection. This was refused at first and Ardesir himself advanced Rs. 3000 to defendant on the 18th January 1905 on a first mortgage of his share. Then Ardesir arranged a second mortgage with one Master for Rs. 12,000 which was executed on the 18th February 1905, On. 4th April defendant himself brought Rs. 100 to Messrs. Mulla and Mulla for the costs of Messrs. Pestonjee, Rustim and Kola for giving inspection and then negotiations with plaintiff were reopened. Ardesir brought the parties together in Mr. Mulla's office and defendant took a capable part in the discussions as to the terms. Defendant himself suggested that as he might get some of his share from the executrices before the period of the mortgage expired, he might in the event of this happening be allowed to pay off the capital pro tanto, and accordingly Ex. B was executed at the same time as the first mortgage to plaintiff. On the same day Ardesir's mortgage was paid off. Defendant thereafter used constantly to see Ardesir about his affairs and complained of the delay in getting his money from the executrices. In August 1905 defendant agreed to purchase a certain godown situated on land leased from the Port Trust for Rs. 21,000 but it was not until April 1906 that the assigment of the lease was executed, defendant paid Rs. 11,000 out of his own monies and borrowed the rest on mortgage, Ardesir advancing Rs. 6,000 on a second mortgage and getting possession of the godown. In January 1906 defendant was anxious to raise a further loan on his share in his sister's estate. Ardesir negotiated the loan and on the 23rd February 1906 the second mortgage to plaintiff was executed for Rs. 15,000.

18. Mr. Bahadurji asked leave to cross-examine Ardesir, but I did not see the slightest reason for granting such permission. There was no necessity for defendant to have called him as a witness and he gave his evidence perfectly fairly, except that he was not straightforward about the amount of brokerage and commissions he had charged to the defendant. In answer to Mr. Jardine he said he had no suspicion from the defendant's conduct that he was in any way incompetent to contract either in January 1905 or February 1906, and I believe him. The witness must have been perfectly well acquainted with the risk involved in lending money to a lunatic or any one who might be suspected of being a lunatic and it was most unlikely he should risk damaging his own business for the sake of the commission he got from defendant. Exs. O, H, and J show that defendant was quite capable of writing a sensible business letter to the extent required by the transactions in question. Mr. Sorabjee Mulla had several interviews with the defendant between April and June 1906 with regard to the first mortgage In June 1906 defendant went to Mr. Rustomjee Mull a and asked him to arrange for paying off both Master and the plaintiff, and defendant had several interviews with Mr. Rustomjee between June 1906 and the end of the year. It was only on receipt of a letter of the 25th January 1907 from Messrs. Pestonjee, Rustim and Kola that Mr. Rustomjee was first put on inquiry as to defendant's state of mind. He had never noticed anything peculiar about defendant and had always found him capable of discussing business transactions. The evidence of Mr. Kola also supports this conclusion. In June 1906 the defendant was taken by Kaikobad Mehrjibhai to seeDr. Massina. The defendant answered the doctor's questions in a rambling manner so the doctor told Kaikobad he could not receive defendant into his hospital. Doctor Massina says he formed the opinion that defendant was suffering from chronic insanity but this appeared to me a diagnosis based on insufficient grounds which have been rebutted by the evidence of Mr. Rustomji Mulla who certainly had more opportunities about that time of ascertaining whether the defendant was able to understand business matters. But in considering the evidence given of defendant's conduct up to February 1906 I see no reason why any expert evidence should be required to enable the Court or a Jury to come to a conclusion on the real issue whether defendant understood the two contracts in question. The evidence does not require particular science or art to elucidate it. I am satisfied therefore on the evidence that it has not been proved that defendant from January 1906 up till February 1906 was suffering from such general dementia as to make him incompetent to enter into any contract.

19. In the next place was defendant incapable to enter into these two contracts owing to his suffering from delusions.

20. A man who is suffering from delusions may very well perform acts which are not influenced by such delusions, and when it is attempted to set aside a transaction entered into by a man suffering from delusions the Court or a Jury has to decide whether the delusions influenced the disposition or contract, and if so to what extent. These contracts were perfectly rational acts performed in a perfectly rational manner and it is impossible to hold that any of the delusions to which it is said defendant was subject in June 1905 and February 1906 influenced these two mortgages.

21. Even assuming that they did influence these two mortgages they did not form the foundation of them. Without going so far as to say the defendant had no delusions the delusions which it alleged did exist were of a very shadowy character. The suggestions that he left Sonabai's house and went to live first with the Irani and then at Mahim because defendant was afraid of being poisoned by his relatives can easily be met by the suggestion that it can also be deduced from his conduct that he did from his admitted money transactions, there is nothing to show that he ever had any exaggerated ideas of what he had actually in hand. He may have dealt foolishly with his money, and speculated but he operated on his bank amount in a perfectly rational manner. It was never overdrawn where assupposing the delusion of wealth existed one would expect to find him distributing cheques for large amounts beyond his means. However the fact that a man shows signs of insanity by the way he spends his money would only be relevant to the question whether he understood the transactions whereby he obtained the money under certain circumstances. It would not be safe for any one to lend money if the transaction wa liable to be set aside merely because the borrower had spent his money foolishly or even under the influence of certain delusions It is suggested the defendant thought himself a person of considerable importance whose duty it was to subscribe largely to the Royal Visit Fund He did subscribe Rs. 2,000 to the fund, but this is the solitary instance that can be alleged of such a delusion having any effect on his expenditure. Even supposing he spent large sums in maintaining an imaginary position, why should it follow that he did not understand perfectly well the transactions by which he borrowed the money? I feel doubtful however whether too much importance has not been placed on this particular expenditure It does not necessarily follow because he gave Rs 2.00 to the Royal Visit Fund that he did so owing to his suffering from a delusion. He was free to spend his money as he pleased and the memory of this act affords him still great pleasure Though some people might think he gave beyond his means it cannot be considered more than an extravagance.

22. On the third and last question it might still be argued that there is sufficient evidence on which the Court might come to the conclusion that defendant though not completely demented had not sufficient mental capacity with respect to these two contracts. If the transactions had been of an extremely complicated nature, I might have felt some doubt whether defendant was capable of understanding them, but as they are of the simplest possible nature I am satisfied the defendant understood perfectly well what he was doing and what effect they would have on his interests. This argument can be of no avail.

23. The plaintiff is entitled to a decree for the amounts due under the mortgage and further charge less the sum of Rs. 7,700 with interest at four per cent from the date of payment, with liberty to recover the amount from the moneys due to defendant in the hands of the executrices. The plaintiff is entitled to add to his decree the costs of the suit including the costs of the rule for the appointment of a Receiver and all costs charges and expenses incurred by him. Liberty to the guardian ad litem to apply to the Court regarding his costs. Simple interest on decretal amount at nine per cent and interest on costs at six per cent.


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