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Clara Auroro De Brangenca and ors. Vs. Sylvia Angela Alvares and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Civil Appeal No. 68 of 1983
Judge
Reported inAIR1985Bom372
ActsSpecific Relief Act, 1963 - Sections 31; Powers of Attorney Act, 1882 - Sections 2; Code of Civil Procedure (CPC), 1908 - Sections 96 and 107 - Order 6, Rule 14 -Order 14, Rule 2 - Order 32, Rule 15 - Order 41, Rules 2 and 33; Lunacy Act, 1912 - Sections 34 and 36; Indian Contract Act, 1872 - Sections 12; Specific Relief Act, 1963 - Sections 31; Evidence Act, 1872 - Sections 101 and 104
AppellantClara Auroro De Brangenca and ors.
RespondentSylvia Angela Alvares and ors.
Appellant AdvocateS.K. Kakodkar, Adv.
Respondent AdvocateM.S. Usgaoncar and;S. Albuquerque, Advs.
Excerpt:
a) the case debated over the suit for cancellation of power of attorney- the power of attorney empowered person to execute partition deed in respect of specified property- however some of the executants of power of attorney were mentally unsound- the holder of power of attorney executed partition of other properties besides those specified- the court found that the power of attorney was not exhausted and cancellation of power of attorney under section 31 of the specific relief act, 1963 as void was justified. ; b) it was held that where in the suit challenging partition deed the defendant raised the preliminary objection that the suit was liable to be dismissed as the plaint was signed and verified by a person incompetent to do so- he however did not press it and gave it up in the trial.....couto, j.1. a suit for inter alia declaration of nullity of a power of attorney and a deed of partition and for cancellation thereof was instituted by the first six respondents in the court of the civil judge, senior division, mapusa against the appellants and the present respondents nos. 7, 8 and 9 and ultimately decreed by the impugned judgment dated 5th aug.1983.2. broadly, as set out in the plaint, the case of the first six respondents was that on the death of one inacio francisco braganza, father of the first appellant and grandfather of the respondents nos. 1, 3, 5, 6,7 and 8, inventory proceedings were initiated for the partition of the estate left behind by him. this partition was executed in the year 1913 in accordance with a court's order and allotment of specific properties was.....
Judgment:

Couto, J.

1. A suit for inter alia declaration of nullity of a Power of Attorney and a Deed of partition and for cancellation thereof was instituted by the first six respondents in the Court of the Civil Judge, Senior Division, Mapusa against the appellants and the present respondents Nos. 7, 8 and 9 and ultimately decreed by the impugned judgment dated 5th Aug.1983.

2. Broadly, as set out in the plaint, the case of the first six respondents was that on the death of one Inacio Francisco Braganza, father of the first appellant and grandfather of the Respondents Nos. 1, 3, 5, 6,7 and 8, Inventory proceedings were initiated for the partition of the estate left behind by him. This partition was executed in the year 1913 in accordance with a Court's Order and allotment of specific properties was individually made in favour of his widow Ana Severina and of his four children, namely (1) Maria Elizabeth, (2) Lucia Paula, (3) Clara Aurora (appellant No.1) and (4) Antonio Sebastiao Anacleto. Maria Elizabeth, who was married to one Damasceno Nazareth, died after her husband, leaving behind as her sole heirs the respondents Olivia and Francisco Xavier. Lucia Paula was married to William Gregory Alvares. She too died leaving as her heirs the respondents Sylvia, Filomena, Joseph Salvador and Bridget. Anacleto was a bachelor and died on 23rd Jan.1968. He left as his heirs his sister Clara (appellant No.1) and his nieces and nephews, the respondents Sylvia (R. 1), Filomena (R. 3), Joseph Salvador (R. 5), Bridget (R. 6), Olivia (R. 7) and Francisco Xavier (R. 8). Though the estate left behind by Inacio Francisco Braganza had been partitioned in the year 1913 and allotment of specific properties had been made to each of his heirs, his widow Ana Severina was managing all the properties that originally belonged to Inacio Francisco up to her death. Then, the management of the same properties was taken up by Anacleto and on the latter's death, appellant No.2, original defendant No.5 and husband of the first appellant, took over the administration thereof. On 6th April 1968, the second appellant got Power of Attorney executed in his favour by the respondents Sylvia, Filomena, Joseph Salvador and Bridget to act on their behalf for the purpose of executing a Deed of Partition as regards the estate left behind by the said Anacleto, though he very well knew that Joseph Salvador was of unsound mind and Bridget mentally retarded. On the same day, respondents Olivia and Sylvia executed, in their turn, Power of Attorney in favour of the third appellant, the original defendant No.6, for the same purpose. On the strength of and the authority conferred by these Powers of Attorney, a Deed of Partition was executed on 28th May, 1968 the second appellant having acted on behalf of respondents Sylvia Filomena, Joseph Salvador and Bridget, and third appellant on behalf of respondents Olivia and Francisco Xavier and the first appellant for herself. However, though the Powers of Attorney were conferred for the specific and sole purpose of executing a Partition Deed as regards the estate left behind by Anacleto only, the subject matter of the partition deed executed on 28th May, 1968 includes not only the estate of Anacleto, but also properties which had already been allotted in the year 1913 to Ana Severina, Maria Elizabeth, Lucia Paula and Clara in the Inventory proceedings instituted on the death of Inacio Francisco Braganza, and the partition was done in such a manner that the first appellant was given a lion's share, much beyond her right, in clear detriment of all the respondents. In the light of these facts, the first six respondents contended in the suit that the Power of Attorney executed in favour of the second appellant by respondents Joseph Salvador and Bridget is null and void on account of insanity and mental retardation. respectively, as null and void is the Deed of Partition not only because the second appellant intervened and acted on behalf of the same respondents in the execution of the said Deed on the strength of a void Power of Attorney, but also because, in any event, the second appellant admittedly acted in excess of the powers conferred to him. Therefore, they prayed for various declarations and for the cancellation of the said Power of Attorney and Partition Deed.

3. The suit so framed was resisted by the first two appellants, mainly on technical grounds. In fact, they raised quite a number of objections as regards the maintainability of the suit which, according to them, is bad for multifariousness, misjoinder of causes of action and parties and untenable under Ss. 31 and 34 of the Specific Relief Act, apart from the fact that the plaint is defective inasmuch as it is signed and verified by the second respondent as constituted Attorney. On merits, their stand has been that though ordinarily respondent Joseph Salvador is of unsound mind, he executed the challenged Power of Attorney during a period when he was lucid and in so far as respondent Bridget is concerned, she was not mentally retarded. They further took the defence that in any event, the partition deed was executed as per the wishes of all the parties concerned and accordingly drafted by Advocate Anastasio de Souza with the help of Advocate Usgaoncar.

4. On these pleadings, issues were framed, some of them being preliminary and covering objections raised in respect of the maintainability of the suit. By his judgment dated 24th Feb.1974, the learned trial Judge, without entering into the merits of the case, dismissed the suit in view of his findings on the preliminary issues. This judgment was, however, set aside in appeal by a Division Bench of this Court. While allowing the appeal, the Division Bench observed that even prima facie the findings of the learned trial Judge were unsustainable in law, but did not deal with the point in detail as the learned counsel for the parties agreed that the dismissal of the suit be set aside and the matter be remanded for trial of the suit on merits. The Division Bench, therefore, directed the learned Civil Judge to deal with the suit on its merits, clarifying however, that, in doing so, the trial Court would be entitled to determine with the final disposal of the suit the issues raised as preliminary along with the other issues. Complying with these directions, the learned trial Judge dealt with all the issues raised, whether preliminary or on merits, in his impugned judgment dated 5th Aug.1983 and partly decreed the suit. Particularly, he made the declarations prayed for as regards the estate of Anacleto, the nullity of the Power of Attorney executed by the respondents Joseph Salvador and Bridget and of the Deed of Partition executed on 28th May, 1968 and consequently ordered the cancellation thereof.

5. Appellants assail this judgment and decree dated 5th Aug.1983 mainly on three grounds, namely (1) that the suit was not maintainable under S. 31 of the Sp. R. Act, (2) that the plaint was signed and verified by an incompetent person, since it was signed and verified by the second respondent on behalf of the respondents Joseph Salvador and Bridget on the strength of the Power of Attorney executed by William Alvares in his favour in his alleged capacity of natural guardian of the said respondents and (3) that though unsoundness of mind of respondent Joseph Salvador is admitted, the evidence has established that he was in a period of lucidity when the Power of Attorney was executed, and as regards Bridget, the plaintiffs failed to prove that she was mentally retarded.

We will, therefore address ourselves to the said questions.

6. So far as the first point, the learned counsel for the appellants contended that the suit was not maintainable because the Power of Attorney was exhausted by the execution of the impugned Partition Deed. In fact, he argued, admittedly the Power of Attorney was executed to empower the second appellant to execute the Partition Deed in respect of the estate of Anacleto and, therefore, once used the question of its declaration of nullity and its cancellation does not at all arise. Apart from this, as admitted in the plaint itself the said Power of Attorney had been revoked prior to the institution of the suit and in any event, the Deed of Partition has been acted upon by all the parties concerned. In the circumstances, he submitted, S. 31 of the Sp. R. Act was not available to the plaintiffs because under the said provisions of law, cancellation of instruments can be ordered by the Court only when a void or voidable written instrument, if left outstanding, may cause serious injury to the person against whom such instrument is void or voidable. And in the case before us, no danger of injury exists on account of the Power of Attorney having been exhausted by its use and later revocation.

7. Undoubtedly. S. 31 of the Sp. R. Act can be taken recourse of only in a case where a person against whom a written instrument is void or voidable apprehends that, if such instrument is left outstanding, it may cause him serious injury. The Power of Attorney, declaration of nullity of which is sought, was executed in favour of the second appellant for the specific and sole purpose of executing a Deed of Partition as regards the estate left behind by Anacleto. The Deed of Partition in question was purportedly executed for partition of the said estate and hence, it would appear that once the said Power of Attorney was used for the execution of the said Deed of Partition, there was no reasonable ground for the plaintiffs to apprehend that if kept standing the same Power of Attorney may cause serious injury to the respondents Joseph Salvador and Bridget. In fact, it would appear that, in the circumstances, the said Power of Attorney was exhausted. But in a more careful and deep consideration of the material before us, we are of the firm view that it is not so. The evidence on record clearly established that not only the estate left behind by Anacleto was partitioned in the Deed of Partition executed on 28th May, 1968, but also properties belonging to Ana Severina, Maria Elizabeth, Lucia Paula and Clara by virtue of the allotment thereof made to them in the Inventory proceedings initiated on the death of lnacio Francisco Braganza were included. Therefore, the Power of Attorney in question was used for a purpose other than the one for which it had been executed. It thus follows that the same has not been exhausted. Hence, if the said Power of Attorney is kept standing, there is reasonable ground for apprehension that it may be used and such use may be to the detriment of the respondents Joseph Salvador and Bridget. In the premises, it would be erroneous to hold that S. 31 of the Sp. R. Act is not available to the plaintiffs. We may however, point out that even if recourse to the said provision of law could not have been taken by the plaintiffs on account of the revocation of the said Power of Attorney, the suit would not have turned untenable, because the validity of the said instrument has a direct and material bearing on the question of the validity of the partition Deed executed on 28th May. 1968.

8. If the Deed of Power of Attorney was executed when the executant was under a disability, any partition deed executed in pursuance thereof would undoubtedly have to be set aside. Merely because the partition deed had already been executed and the power vested under the General Power of Attorney stood exhausted, the Court cannot and should not decline to grant a declaration that the General Power of Attorney is a nullity or is void and cannot be acted upon. If the declaration in respect of the General Power of Attorney is not granted as prayed for, it would mean that the General Power of Attorney is still valid. When power to execute a partition deed is vested under Power of Attorney and that partition deed is set aside or declared not binding and enforceable, the Power of Attorney holder may claim that a proper partition deed could still be executed by him and execute and present another partition deed for registration. The continuance of the Deed of Power of Attorney without being declared a null and void document would expose the parties to further litigation. There is no provision of law which prevents the Court from granting a declaration in these circumstances. It is, therefore, necessary to grant the declaration prayed for. We are also unable to appreciate as to why the appellant still wants the Power of Attorney to continue if the authority vested thereunder stood exhausted. For the aforesaid reasons, the contention of the appellant that no declaration setting aside the Power of Attorney or declaring it to be a nullity should be granted stands rejected.

9. We may now turn to the next ground of challenge, according to which the suit was liable to be dismissed, since the plaint was verified and signed on behalf of the respondents Joseph Salvador and Bridget by a person who was incompetent to do so. In this regard, the learned counsel for the appellants invited our attention to Exh. PW.I/A which is an instrument of general Power of Attorney executed in favour of the second respondent by the respondents Sylvia and Filomena and by William Alvares on behalf of respondents Joseph Salvador and Bridget for the purpose of instituting a suit challenging the partition done by Deed dated 28th May. 1968. He contended that a plain reading thereof suffices to show that William Alvares purportedly intervened in the execution of the said instrument as natural guardian of the respondents Bridget and Joseph Salvador, alleging that they are mentally retarded and of unsound mind, respectively. The said William was not appointed guardian by the Court and hence, the learned counsel further submitted, he had no authority to institute the suit on behalf of the said respondents and much less to execute Power of Attorney on their behalf for the aforesaid purpose. The plaint was verified and signed by the second respondent on behalf of the plaintiffs, including the present respondents Joseph Salvador and Bridget, though he was incompetent to do so on behalf of the latter two respondents. In the premises, the learned counsel concluded, the plaint is materially defective and such defect makes the suit liable to he dismissed on that ground alone.

10. We find no merit in the above contentions. We may first mention that this point was raised by the second appellant in his written statement and, as such, a preliminary issue in respect thereof was framed and decided by the learned trial Judge in his original judgment dated 25th Feb.1974. However, after this judgment was set aside by the Division Bench with a direction to the trial Court to decide the suit on merits, determining also the preliminary issues raised, the appellants, as recorded in para 10 of the impugned judgment, did not press it, perhaps because they realised that, as observed by the Division Bench, even prima facie the findings of the trial Court in respect thereof in the judgment dated 25th Feb. 1974 were unsustainable in law. Thus, having given it up in the trial Court, it was not open to them to agitate it in this appeal. But, on merits also, the above submissions are unsustainable in the facts and circumstances of this case where it is clearly proved. as we will presently show, that respondents Joseph Salvador and Bridget were at the' material time of the institution of the suit. and still Continue to be, of unsound mind and mentally retarded, respectively, and it is not disputed that William Alvares was their father and de facto guardian. He had no interest adverse to theirs. William was, therefore, the natural guardian of the said respondents and would have been ordinarily so appointed to represent them in the suit, which was to safeguard and to restore their rights and their interests. He was admittedly, residing at Bombay and the suit had to be instituted in Goa. In the premises therefore, he had a good cause to authorise as natural and de facto guardian of the respondents Joseph Salvador and Bridget, the second respondent to sign the plaint on their behalf. We find no provision of law barring the delegation of powers by a guardian or next friend, nor the learned counsel for the appellants was able to point out any and on the contrary, in the context of the above facts, O.6, R. 14, C.P.C. makes such delegation entirely permissible. We therefore hold that the signing and verifying of the plaint by the second respondent on behalf of the respondents Joseph Salvador and Bridget does not constitute an irregularity and does not vitiate the suit.

11. It was however contended by the learned counsel for the appellants that in any event, the plaint is materially vitiated because the case of the plaintiffs being that the respondents Joseph Salvador and Bridget were at the relevant time of the institution of the suit of unsound mind and mentally retarded, respectively no inquiry as required by O. 32. R. 15 C.P.C. was held. This inquiry, he argued relying on the decision of a Division Bench of this Court in Somnath v. Tipanna Ramchandra Jannu, : AIR1973Bom276 , is an ex parte inquiry held for the purpose of enabling the Court to arrive at a finding as regards the soundness of mind of a plaintiff and the need of his being represented by a next friend or guardian. Such inquiry was not held at the time of the institution of the suit and hence, in the absence of a finding that Joseph Salvador was of unsound mind and Bridget mentally retarded, the second respondent becomes a person incompetent to file the suit on their behalf. This constitutes, according to the learned counsel, a defect that touches the jurisdiction and therefore, vitiates the suit. He further submitted that the inquiry held at a later stage pursuant to an Order dated l8th Aug.1979 passed by the learned Addl. J. C. does not cure the defect, since such inquiry was held at the appellate stage and for the purpose of determining the state of mind of Joseph Salvador and Bridget at the time of the filing of the appeal and not at the time of the institution of the suit.

12. We find it rather difficult to accept the views of the learned counsel. First of all appellants did not raise the point in their written statement and it was only now, at this stage of the proceedings that they for the first time, advanced such contention. No doubt the learned counsel for the appellants contended that it is not so for, according to him, the point was taken up in para 3 of the first appellant's written statement. This however, is not correct, because the question raised in the said para of the written statement is quite different from the one raised before us. But even if it is the same, the fact remains that the appellants did not press the point in the trial Court. In the circumstances, in our view, it is too late in the day for them to raise the point in this appeal. Secondly, on merits also, we find the submissions of the learned counsel unsustainable in the context of the facts of the case, the decision in Somnath's case (supra) being of no help for the appellants.

13. That was a case where a suit had been filed and the plaintiff had been described in the plaint as a major person but of unsound mind, or person incapable of taking care of his affairs and therefore, had sued through a next friend his wife. While opposing the suit on merits, the defendant had alleged, inter alia, in his written statement, that it was not true that the plaintiff was a person incapable of taking care of his own affairs and, as such, he challenged the presentation of the plaint as improper. The learned Civil Judge before whom the suit was pending, framed an Issue to determine whether the plaint has been properly presented by the plaintiff and holding that the presentation was not proper, dismissed the suit. This judgment of the learned Civil Judge was challenged in appeal before the High Court and. inter alia, it had been contended that the procedure followed by the learned trial Judge was not correct. These submissions of the appellant found favour with the Division Bench and it was held that the procedure adopted by the said Judge has no warrant in law. Therefore, the Division Bench felt it necessary to lay down some principles in order to serve as a guidance to the lower Courts as to how a Court shall deal with a suit presented by a next friend alleging the plaintiff to be a person of unsound mind. Therefore, the Division Bench observed that when the plaint is being examined for the purposes of admission, if it contains a statement as required by Cl. (d) of R. I of O.7 that the plaintiff is a person of unsound mind and that, the next friend is suing on his behalf, the Court must at once hold an inquiry for the purpose of recording a finding that the plaintiff is a person of unsound mind or mentally so infirm and incapable of protecting his own interests. It was further observed that it is the duty of the Court to do so and it is not necessary for the next friend to make a separate application for that purpose, for the provisions of R. 15 of O.32 make it possible for the next friend to sue on behalf of an adult person as his next friend only when the person is so adjudged by a Court of competent jurisdiction or if not so adjudged is found by the Court on inquiry to be so. The Division Bench, therefore, observed that this is the foundation, prima facie, for a next friend to avail and proceed with the suit, such inquiry being obviously an ex parte inquiry for the Court to give a finding and to admit the plaint and issue the process to the other side. At no stage of the aforesaid judgment, the Division Bench dealt with the question fallen for our consideration, namely whether if an inquiry is held, though not at the time of filing the suit, and it is found that the plaintiff was actually of unsound mind at the time of the institution thereof, the non-holding of the inquiry at the initial stage vitiates the suit. The Division Bench, as already said, has merely laid down the procedure that ordinarily has to be followed when a suit is filed by a person said to be of unsound mind, and thus, the said Division Bench decision is not an authority for the proposition that a suit filed by a person through a next friend is vitiated if inquiry under O. 32, R. 15, C.P.C. is not held at the time of the institution thereof. The said decision constitutes merely an authority for the proposition that an inquiry has necessarily to be held by the Court in order to record a finding as to whether or not a plaintiff who had sued through a next friend is of unsound mind.

14. In the case before us, the factual position is quite different from that which had fallen for consideration before the said Division Bench. First of all, the point has not been raised in the trial Court and even if raised, was not pressed. However, when an appeal was pending in the Judicial Commissioner's Court against the judgment dated 25th Feb.1974, the present appellants raised the question of the non-maintainability of the appeal as no inquiry under O.32, R. 15 C.P.C. has been held. While dealing with this contention, the learned Addl. J. C. observed in para 3 of his Order dated 18th Aug.1979 that though the learned trial Judge did not pass a specific order allowing the respondents Joseph Salvador and Bridget to be represented by a next friend, nevertheless it appeared from the records that no objection has been raised by the appellants before him in the suit on that count and consequently, the respondents Joseph Salvador and Bridget were allowed to be represented by their father as next friend. After making these observations, the learned Addl. J. C. held the view that though no finding as to whether the said respondents were or not of unsound mind had been recorded and though such an inquiry was to be held, it was futile to extend the same to the time when the Suit was filed. In other words, since the appellants had not objected to the aforesaid respondents being represented by a next friend and had further allowed them to be represented by their father, what the learned AddI. J. C. held is that though such inquiry has ordinarily to be held at the trial of the suit, nevertheless a suit will not be vitiated if the inquiry is held at a later stage, for what really matters is the finding recorded after inquiry that the plaintiff was of unsound mind at the time of the institution of the salt. This in our view, is the correct law because the requirement of the inquiry is for the purpose of enabling the Court to satisfy itself that the plaintiff was actually incapable of looking after his affairs at the time of the filing of the suit and thus, for preventing the filing of suit by a next friend, when a plaintiff is mentally sane. In the present case, as correctly observed by the learned AddI. J. C., on one hand, the appellants allowed, without any objection, the respondents Joseph Salvador and Bridget to be represented by a next friend and on the other, in their written statement took the stand that the plaint was defective and should be taken out of the record, precisely because the said respondents, being of unsound mind, no preliminary inquiry under O. 32, R. 15 C.P.C. has been held by the Court as to ascertain their state of mind. Therefore, there is a clear admission on the part of the appellants that Joseph Salvador and Bridget were of unsound mind at the relevant time of the filing of the suit and, in the circumstances, the very purpose of the inquiry was fully satisfied. Apart from this it may be pointed out that the evidence adduced in the course of the inquiry ordered by the learned Addl. J. C. has established beyond any reasonable doubt that Joseph Salvador was suffering from schizophrenia and was interned in an asylum or Mental Hospital at Thana at the material time of the institution of the suit. Similarly, the evidence shows that Bridget was and is mentally retarded.

15. O. 32, R. 1 C.P.C. provides that a minor may sue by a next friend and every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend. This provision is applicable to persons of unsound mind by virtue of R. 15 which provides that Rr. 1 to 14, except R. 2A. shall as far as may be apply to persons adjudged before or during the pendency of the suit to be of unsound mind and shall also apply to persons who though not so adjudged are found by the Court on inquiry to be incapable by reason of any mental infirmity of protecting their interests while suing or being sued. R. 15. Therefore requires only that a suit by a person of unsound mind should be instituted in his name by a next friend. It is no doubt true that the rule speaks of persons who had been adjudged as being of unsound mind or if not so adjudged are found by the Court on inquiry, to be incapable by reason of any mental infirmity of protecting their interests when suing or being sued. The rule, however clearly lays down that the provisions of Rr. 1 to 14 apply to persons adjudged to be of unsound mind or found to be incapable of protecting their interests by reasons of any mental infirmity before or during the pendency of the suit. Therefore the requirement of holding an inquiry in such a case is, under the rule, to be complied with either before or during the pendency of the suit. An appeal as it is well settled, is a continuation of the suit, and hence, since in the present case an inquiry was held and it was found that the respondents Joseph Salvador and Bridget were of unsound mind, it has necessarily to be held that the requirements of R. 15 of O. 32 had been duly satisfied. We may also point out that what is relevant is that at the time of the institution of the suit, a person is of unsound mind and in such cases, the suit can be instituted by such person only through a next friend. The need of a next friend is not a result or a consequence of the finding given by the Court that a person is of unsound mind, but it is a necessity which arises in view of the mental infirmity Itself. What the law requires is that once a plaintiff is of unsound mind a next friend should intervene on his behalf. In addition, as rightly pointed out by the learned counsel for the respondents if at all inquiry was to be held at the time of the filing of the suit the non-holding thereof at that time constitutes at the most, an irregularity which, being a question merely touching the procedure, is curable. We are fortified in this view by the decisions of the Calcutta high Court in Keshav Deo v. Jagadish Prasad, : AIR1973Cal83 and of our High Court in Gulabchand Nanulal v. Fulchand Hirachand, : AIR1959Bom232 . In the circumstances, therefore in our view, the plaint as instituted cannot he held to be defective only because no inquiry under O. 32, R. 15 C.P.C has been held at the time of the institution of the suit.

16. The learned counsel for the appellants last contended that, in any event, the suit was liable to be dismissed, since the basis thereof had not been proved by the plaintiffs. In fact, according to him, the plaint was filed on the footing that Joseph Salvador was of unsound mind and Bridget mentally retarded at the time of the execution of the Power of Attorney in favour of the second appellant and therefore, the Deed of Partition executed by using such Power of Attorney is materially and substantially vitiated and consequently is null and void. The learned counsel contended that the evidence on record has clearly established that the said Power of Attorney had been executed before the Presidency Magistrate, Bombay during a period of time when Joseph Salvador was on parole. This being so, though admittedly the said Joseph Salvador is mentally unsound, the evidence shows that the Power of Attorney bad been executed by him during a period of time when he was lucid. Similarly, the evidence brought on record in respect of the respondent Bridget is not sufficient to establish that she was mentally retarded. In the circumstances, therefore, according to the learned counsel, the basis of the suit had not been proved and consequently, the Power of Attorney as well as the Deed of Partition, could not have been declared null and void. We are unable to accept the above submissions of the learned counsel for the medical evidence on record has overwhelmingly established not only the unsoundness of mind of the said Joseph Salvador but also that Bridget was mentally retarded. We may refer to the evidence of Dr. Vaidya. P.W. 5. He stated that he is working in the Mental Hospital at Thana and from the records of the Hospital, which were produced by him, it is clear that Joseph Salvador was admitted to the said hospital for the first time on 5-11-65 under a detention order from the Deputy Commissioner of Police. He was suffering from schizophrenia and he was certified to be unsound mind by Dr. V. L. Chandurkar. He was discharged on parole on 11-2-66 and was again brought back to the Hospital under an order of the Deputy Commissioner of Police on 9-2-69. He was released also on parole, on 9-2-69, re-admitted on 25-6-71 and since then, he continues in the said Hospital. In her turn Dr. Adelia Costa stated while deposing in Court that she had examined the respondent Bridget and on such examination, has arrived at a clear finding that she was mentally, retarded. This medical evidence finds ample corroboration in the evidence of the second appellant himself who admitted in cross-examination that the respondent Joseph Salvador had been admitted in the Mental Hospital of Thana and was there since 1965. He has drafted a letter to get him admitted in the Hospital. He further stated that Joseph Salvador had been discharged on parole several times, but, each time, he had been taken back to the same Hospital since he was incurable. He further stated that he never discussed the matter relating to the partition of the properties with the said Joseph Salvador. He also admitted that Bridget is not of normal intelligence. This being the position, the evidence on record clearly establishes the mental insanity of Joseph Salvador and the mental retardation of Bridget.

17. The only point that thus remains to be considered is whether the evidence on record justifies the submission made by the learned counsel for the appellants that the respondent Joseph Salvador was in a period of lucidity when he executed the Power of Attorney in favour of the second appellant. Our answer to this question is clearly in the negative. In fact, as we already stated, the medical evidence of Dr. Vaidya has clearly established that the said respondent has been an inmate of the Mental Hospital of Than since somewhere in the year 1965. He had been discharged on parole and he was not in the Hospital at the relevant time when the Power of Attorney was executed in favour of the second appellant. However, he had not been discharged under S. 34 of the Lunacy Act, 1912 and consequently, it has to be held that he had beep discharged from the Hospital only because a member of his family was at the relevant time able to look after him. He had been interned in view of the fact that he was a schizophrenic of a violent nature, and as such, the discharge on parole means only that, at the relevant time, he was not violent on account of his mental illness. We have also to bear in mind the provisions of S. 36 of the Lunacy Act which provides that if a lunatic is not returned to a Mental Hospital at the end of he period of parole, he can be captured and brought back to the Hospital. This being so, in he absence of any order of discharge under S. 34 of the Lunacy Act, we have to hold that Joseph Salvador was still a lunatic during the period he was on parole and when he executed he Power of Attorney in favour of the second appellant. In addition, we may point out, as contended by the learned counsel for the first six respondents, it was necessary for the appellants to establish by way of sufficient evidence that Joseph Salvador was capable of understanding the meaning of Power of Attorney and of forming a rational judgment as to its effect upon his interest in view of the provisions of S. 12 of the Contract Act. The appellants have failed to prove this fact and consequently, they had not discharged the burden which was lying on them to prove that Joseph Salvador was of sound mind or was in a period of lucidity when the Power of Attorney was executed by him in favour of the second appellant thus, we have no doubt whatsoever in holding that in the facts and circumstances of the case, it is not possible to say that Joseph Salvador was in a period of lucidity when he executed the Power of Attorney in favour of the second appellant.

18. In the result, this appeal fails, and is accordingly dismissed with costs.

19. Appeal dismissed.


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