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K. Kusuma Kumari Vs. Grandhi Surya Bhaghawan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 886 of 1975 and Tr. Appeal No. 187 of 1978
Judge
Reported inAIR1982AP163
ActsEvidence Act, 1872 - Sections 101, 112 and 114
AppellantK. Kusuma Kumari
RespondentGrandhi Surya Bhaghawan and ors.
Appellant AdvocateAdv. General, ;P. Naga Seshala and ;P. Venkata Muni Reddy, Advs.
Respondent AdvocateT. Ramachandra Rao, ;Mangu Venkata Rao and ;P. V. Seshaiah, Advs.
Excerpt:
civil - congenital idiocy - sections 101, 112 and 114 of indian evidence act, 1872 - whether 'a' was born congenital idiot - 'a' not proved to have been born congenital idiot - evidences and circumstances further reinforced the point that he was not born congenital idiot - his idiocy developed between 3 to five years of age ever since he became epileptic - held, 'a' was not born congenital idiot. - - the same presumption backward regarding the illegitimacy of a child should be drawn in this case as well as was done in mahendra v. saran janaki, air 1974 mys 61. dw-2 who was widowed early in her life, lived in the house of padmaraju assisting the mother of these children looking after all her deliveries and she has no favours to give to the 1st defendant and had no animosity against.....p. ramachandra raju, j. 1. these two appeals arise respectively out of the judgment and decree dated 6-9-75 in o. s. no. 197/71 and o. s. no 7/67 disposed of by a common judgment by the subordinate judge, visakhapatnam. the appeal against o. s. no. 7/67 was originally filed before the district judge, visakhapatnam, as a. s. no. 100/76 which, on transfer to this court, was numbered as transferred appeal no. 187 of 1978, a. s. no. 886/75 arising out of o. s. no. 197/71 is the substantial appeal and for purposes of convenience, the parties are referred to in the rest of this judgment according to their position in the said o. s. no. 197/71.2. the main controversy in the suit turns round the question as to whether one grandhi ramakrishna who died on 27-12-1970 was born a congenital idiot in.....
Judgment:

P. Ramachandra Raju, J.

1. These two appeals arise respectively out of the judgment and decree dated 6-9-75 in O. S. No. 197/71 and O. S. No 7/67 disposed of by a common judgment by the Subordinate Judge, Visakhapatnam. The appeal against O. S. No. 7/67 was originally filed before the District Judge, Visakhapatnam, as A. S. No. 100/76 which, on transfer to this court, was numbered as Transferred Appeal No. 187 of 1978, A. S. No. 886/75 arising out of O. S. No. 197/71 is the substantial appeal and for purposes of convenience, the parties are referred to in the rest of this judgment according to their position in the said O. S. No. 197/71.

2. The main controversy in the suit turns round the question as to whether one Grandhi Ramakrishna who died on 27-12-1970 was born a congenital idiot in 1941. The Sub Judge. Visakhapatnam held that Ramakrishana was by birth a congenital idiot and as a necessary consequence of that finding, dismissed both the suits referred to above which came to be filed in the background of the material facts detailed below.

3. One Grandhi Padmaraju was owning extensive properties. By his first wife, he had no issues. After the death of his first wife, he married for a second time who, in all, gave birth to four daughters and three sons. They are respectively the plaintiff (P. W. 2) the first daughter born in the year 1937; Savitri (D-3) born in the year 1938; Parvathi (D-4) who figured in the suit as PW-3 born in the year 1940; Ramakrishna, the deceased born in the year 1941; Surya Bhagawan (D-1) who figured as D. W. 1 born in the year 1943; Mahalakshmi (D-5) born in the Year 1945 and Kamaraju (D-2) born in the year 1947. The plaintiff was married to one Dr. K. Kameswara Rao (PW-1) some time early during the year 1950 and two months later, the plaintiff's mother died. P. W.-1 was the son of the sister of Padmaraju. After PW-1 married the plaintiff, both of them lived in the house of Padmaraju. In about the year 1952, Padmaraju suffered a heart attack. By 1-1-1958, all his three sons were still minors.

Padmaraju was involved in a partition suit earlier in O. S. No. 20/1920 and he wanted to avoid family litigation between him and his son regarding partition of the properties. Exercising the right of Hindu father to effect a partition between himself and his three minor sons, he partitioned the family properties under a partition deed dated 1-1-1958, the registration extract of which has been filed as Ex. A-1. There is no dispute raised by either of defendants 1 and 2 that the partition brought about by late Padmaraju was unequal. They did not also raise the dispute at any earlier point of time that Ramakrishna was not entitled to any share. Both these defendants attained their respective majorities during the years 1961 and 1965.

In terms of that partition, the 'A' schedule immovable properties and items 2, 3, 4 and 5 of the plaint 'B' schedule moveable properties were allotted to the share of Ramakrishna. During his lifetime and till his death on 30-11-1964,Padmaraju himself was managing the properties of Ramakrishnna. There was an amount due from one Nachu Guruvulu Chetty under a promissory note D/- 9-5-1961 to the credit of Ramakrishna to recover which, O. S. No. 78/65 was filed by PW-1 acting as a power of attorney agent of Ramakrishna, the power of attorney being dated 17-6-1963. This outstanding is described as item 3 of the plaint 'C' schedule. By the date of death of Padmaraju, an amount of Rs. 48,000/- was found due to Ramakrishna in the books of accounts maintained by Padmaraju.

After the death of Padmaraju, defendants 1 and 2 formed themselves into a partnership and utilised the amount of Rs. 48,000/- belonging to Ramakrishna for which utilisation interest is payable at 12% per annum according to the trade custom and the prevailing rate of interest. All such amounts belonging to Ramakrishna utilised by the 1st defendants for the partnership business together with interest was estimated at Rs. 60,000/- which is described as item 1 of 'C' Schedule. For about a year after the death of Padmaraju, the plaintiff (PW-2) and her husband (PW-1) lived in the house of Padmaraju with a joint mess during which period, both PW-1 and the 1st defendant were looking after the person and property of Ramakrishna as it suited their convenience. But subsequently the plaintiff and her husband who continued to live in the same house, had set up a separate mess taking into their care Ramakrishna.

Disputes, however, arose between the parties regarding certain amounts collected by the 1st defendant on behalf of Ramakrishna. PW-1 claiming under a general power of attorney dated 17-6-1963 allegedly executed in his favour by Ramakrishna, filed O. S. No. 7/67, claiming from the 1st defendant, a proper and correct account of all the rents and other monies collected by the 1st defendant during the period 30-11-1964 till August 1966. That suit was valued at Rs. 5,100/- and that amount was shown as Item 2 of the plaint 'C' schedule. The suit O. S. No. 7/67 was originally resisted by the 1st defendant disputing the right of PW-1 to ask for an account and claiming that the 1st defendant himself was constituted agent by Ramakrishna to manage his properties.

During the course of that litigation, the 1st defendant filed an application to have Ramakrishna produced before court. Pursuant to an order made by the court, Ramakrishna was produced on 25-7-1968 and he was examined in court. Having regard to the answers given to the questions put by the court on that day, Ramakrishna was sent to the Mental Hospital for observation and one Dr. Appalla Raju, Superintendent, Government Mental Hospital, Waltair, after observing Ramakrishna, gave the certificate that the psychological test revealed that Ramakrishna is of the level of an imbecile with a mental age of 5 years and was suffering from periodical attacks of epilepsy. The evidence of Dr. Appala Raju in cross-examination was :

'The test revealed that Ramakrishna is a person of a level of imbecile with a mental age of five years. It means that the mental capacity is equal to a boy of five years; from the age of five, the mental capacity of Ramakrishna did not at all progress, but appears to have stagnated to a certain extent. Ramakrishna remained in the same mental state from his fifth year onwards till now.'

4. Though Dr. Appalla Raju has not been examined in these litigations, both the parties have relied upon the evidence recorded in those Interlocutory Proceedings in O. S. No. 7/67 as supporting their respective contentions. The Sub Judge, Visakhapatnam, by his order dated 3-12-1968 dropped further proceedings in O. S. No. 7/67 till such time as Ramakrishna was properly represented in the litigation. PW-1 thereupon initiated proceedings under Secs. 62, 67 and 72 of the Lunacy Act in O. P. No. 1/69 on the file of the District Judge, Visakhapatnam and applied for being appointed guardian for the person and properties of Ramakrishna, Ex. B-4 is the certified copy of the petition in the said O. P. Ex. B-5 is the certified copy of the written statement filed by the 1st defendant in that O. P. and for the first time in the counter filed on 3-4-1969 in the said O. P. the 1st defendant has taken up the position that Ramakrishna was a congenital idiot and so was disqualified from getting any share in the family properties.

An effort appears to have been made to invite a finding in the O. P. whether Ramakrishana was congenital idiot but the District Judge. Visakhapatnam by his order Ex. B-9 dated 14-7-1969 held that it was beyond the scope of the enquiry to determine whether Ramakrishna was a congenital idiot and that Ramakrishna was a lunatic. Subsequently by his order Ex. B-6 dated 168-1969 the 3rd defendant and her husband were appointed Managers for the person of Ramakrishna and Sri. W. V. C. Ramalingam, Advocate, was appointed manager of the properties of the lunatic. During the course of the management of the properties, the guardian deposited the amount collected by him and that amount is shown as item 6 of the plaint 'B' Schedule. Some rents due to Late Ramakrishna on his house properties described in the plaint 'A' Schedule form item 1 of 'B' Schedule.

Some time prior to Dec. 1970, Ramakrishna took seriously ill. He was removed to the American Hospital during Feb. 1967 and shortly thereafter removed to the plaintiff's house and he died on 27-12-1970. Consequent on his death, the plaintiff filed O. S. No. 197/71 claiming 1/6th share in the properties of Ramakrishna. She also came on record as the 2nd plaintiff in O. S. No. 7/67 as one of the legal representative of Ramakrishna and impleaded to that suit defendants 2 to 5 also as legal representatives, entitled to an equal share along with her in the properties of Ramakrishna. By an additional written statement filed by the 1st defendant in O. S. No. 7/67, the defendant has put forward the plea that Ramakrishna was not entitled to any share because of his congenital idiocy and that neither the plaintiff nor her three sisters defendants 3 to 5 are entitled to any share in the properties of Ramakrishna or to demand any account from him of the monies collected by the 1st defendant during his management.

5. The additional issue NO. 1 framed in O. S. No. 7/67 and issue No. 2 framed in O. S. No. 197/71 have correctly thrown the burden of proof on the 1st defendant to establish that late Ramakrishna was a congenital idiot. The evidence was accordingly let in by the 1st defendant who examined himself as DW-1 on 28-6-1975. DW-2, the junior maternal aunt of the parties, was examined on 19-7-1975. DW-3 who retired as a Amin from the District Court, Visakhapatnam and who was knowing the family of Padmaraju gave his evidence on 25-7-75. As against this oral evidence let in by the 1st defendant, the plaintiff's husband was examined as PW-1 on 26-7-1975. PW-2 the plaintiff in the suit and PW-3. 4th defendant in the suit were both examined on 8-8-1975.

The evidence of Dws. 1 and 3 was directed to establish that Ramakrishna was a congenital idiot while the evidence of Pws. 1 to 3 was let in to establish that Ramakrishna was born as a normal child but he developed epilepsy from about his age of 7 years and thereafter there was deterioration in his mental health from which he never recovered and though at the time the disputes arose between the parties, Ramakrishna was not able to look after either himself or his properties, he was not a congenital idiot. The Sub Judge felt that the evidence of PW-2 being that of a party is interested and that Pws. 1, 3 were not competent to say anything about the mental state of Ramakrishna in the early years of his life and the evidence let in by the plaintiff does not go to establish that Ramakrishna was born a normal person or that he developed idiocy subsequently due to supervening circumstances.

The 1st defendant is also a party and was born later than Ramakrishna. The Sub Judge felt that the 1st defendant was not a competent witness to say anything about the mental health of Ramakrishna in the early years of Ramakrishna's life. He considered Dws. 2 and 3 to be actively interested in supporting the case of the 1st defendant and, therefore, did not attach any importance to the evidence of Dws. 2 and 3. The result is that the Sub Judge discarded the oral evidence in the case adduced by either of the parties as not of a determinative nature and he considered the various circumstances as supporting his conclusion that those circumstances established the congenital idiocy of Ramakrishna.

6. The Advocate-General, learned counsel appearing for the plaintiff-appellant has submitted that if the Sub Judge did not choose to give weight to the oral evidence adduced by either of the parties, he should he found that the defendant did not discharge the burden of proof which was on him to establish the congenital idiocy of Ramakrishna and the Sub Judge should have accordingly found that congenital idiocy of Ramakrishna was not established. His further submission is that in the evidence of Pws. 1 to 3 important admissions shown, the normal mental health of Ramakrishna have been made and they have not been given proper weight by the Sub Judge. According to him, the various circumstances relied upon by the Sub Judge relate to the period subsequent to 1964 and even assuming that Ramakrishna was an idiot during that period, the presumption backward cannot be made that Ramakrishna would have been an idiot from his birth. He relied on various circumstances based on conduct which, according to him, go to establish that Ramakrishna was treated so having been born with normal mental health.

7. Mr. Ramachandra Rao, learned counsel appearing for the 1st defendant has, however, submitted that idiocy is normally congenital and such presumption was rightly drawn by the trial Judge. He supported his submission n the basis of some observation s made by text book writers and the manner in which idiocy has been defined in various dictionaries and in particular, he placed reliance on K. Lata v. Damodar Reddy (1973) 2 APLJ 414. His further submissions are that if idiocy, is due to any supervening circumstance, it is for the plaintiff to establish the existence of that supervening circumstance and its adequacy to have impaired the otherwise normal mental health of Ramakrishna and to have made him an idiot and that in this case the plaintiff did not adduce any evidence in that behalf. The epileptical fits are not such as to have impaired the mental health of Ramakrishna to have turned him as an idiot in his later life. The same presumption backward regarding the illegitimacy of a child should be drawn in this case as well as was done in Mahendra v. Sushila Mahendra. : [1964]7SCR267 and B. Michael Raju v. Saran Janaki, AIR 1974 Mys 61.

DW-2 who was widowed early in her life, lived in the house of Padmaraju assisting the mother of these children looking after all her deliveries and she has no favours to give to the 1st defendant and had no animosity against the plaintiff and her sisters and the Sub Judge should have accepted the evidence of DW-2 as reliable and if her evidence is so evaluated, the inference is irresistible that Ramakrishna was in fact a congenital idiot. In similar strain it is submitted that DW-3 is an independent witness and his evidence should have been accepted as reliable. The admissions allegedly made by Dws. 1 to 3 are not such as to establish in any manner that Ramakrishna was born with normal mental health. The various circumstances based on conduct relied upon for the plaintiff have all to yield to the explanations offered by the 1st defendant.

8. Idiocy has been defined in various manners by different dictionary writers. It has not been defined as such in any of the Indian enactments. As idiocy takes several forms, that word has been defined to convey meanings in varying contexts. After noticing the description of the said word made in Webster's New International Dictionary, Vol. 1 Second Edition at page 1237, Stroud's Judicial Dictionary Vol. 2 Third Edition at page 1367 and Blackstone's definition of 'idiot' in Corpus Juris Secundum (Vol. XLIV at page 32), a Bench of this court in K. Lata v. Damodar Reddy (supra) held, that the 'meanings given to the expression 'Idiot' in Stroud's Judicial Dictionary and Corpurs Juris Secundum lay the correct guidelines in determining in any given cases whether a particular personis an idoit. According to Stroud, 'idiot' is he that is afoole natural from his birth; and knoweth not how to account or number twenty pence, or cannot name his father or mother, not of what age himself, is or such like easie and common matters, so that it appear these hath no manner of understanding of reason or government of himself, which is for his profit or disprofit etc.'

In Corpus Juris Secundum, 'an idiot' is defined as 'one what hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any' and an idiot has been defined as a fool by birth; a natural fool a human being in form but destitute of reason from birth'. In Whartons Law Lexicon (Fourteenth Edition pate 491) 'idiot' is described as a person born without a mind. Wharton includes idiot as one of the four mentally defective persons defined by the Mental Deficiency Act, 1927, the other three categories being termed as imbeciles, feebleminded persons and moral defectives. Biswas in his book on Encyclopaedic Law Dictionary 1979 Edition described 'idiot as a feeble-minded person; a person born without a mind. The term is applied to the lowest grade of feeble-mindedness, attaining when adult, a mental age of not more than two years or an IQ not above 25.' Agarwal in his Dictionary of Legal Terms 1975 Edition at page 62 defines 'idiot' the absence of understanding, with lucid intervals, from birth. A natural fool. Albert Crew and Aylwin Gibson in their Dictionary of Medico-legal Terms, 1937 Edition at page 41 described 'idiot':

'One who is mentally deficient from birth by a perpetual infirmity without lucid intervals. A person in whose case there exists mental defectiveness of such a degree that he is unable to guard himself against common physical dangers Jowitt's Dictionary of English Law, Volume-1 1977 Edition page 936 describes idiot: An idiot or fool natural is a person who from his birth, by a perpetual or incurable infirmity, is of unsound mind, Idiots, imbeciles feeble-minded persons, and moral defectives constituted the four kinds of persons defined as mentally defective by the Mental Deficiency Act, 1927, S. 1, idiots being defined as person in whose case there exists mental defectiveness of such degree that they are unable to guard themselves against common physical dangers'.

9. Though prior to 1959 the four-fold classification of mental defective persons as referred to above was maintained in English, by virtue of the Mental Health Act, 1959, the classification of mentally disordered persons was divided by the use of the terms 'serve subnormality', 'subnormality' and 'phychopathic disorder'.

10. Modi in his book on Medical Jurisprudence, 19th Edition at page 388 classified mental defectiveness as falling chiefly under three grades known as idiocy, imbecility and feeble-mindedness, Dealing with idiocy, he observed:

'This is a congenital condition due to the defective development of the mental faculties. All grades of this condition exist from the helpless life mere vegetable organism to one which can be compared with the life of young children, as far as mental development is concerned. An idiot is wanting in merely and willpower, is devoid of emotions, has no initiative of any kind, is unable to fix attention any subject and 'is unable to guard himself against common physical dangers'. He is usually quiet, gentle and timid, though he can be easily irritated. He cannot express himself by articulate language, but he may be able to make himself understood by certain signs, cries or sounds. In some cases he is able to recognise his relatives, and learn with great difficulty. He is usually filthy in his habit and had no concern as to what he eats or drinks. He is very often depraved in morals, and is sometimes cruel to weaker children as well as animals. There is always some bodily deformity or peculiarity, such as a small (Microcephalic), large (Microcephalic, hydrocephalic) or misshapen head, cleft or highly arched palate, irregularly set teeth, enlarged tonsils, adenoids, curved bones etc'.

Dealing then with imbecility, Modi observed :

'This is a minor form of idiocy, any may or may not be congenital. Imbeciles are 'incapable of managing themselves or their affairs or in the case of children, of being taught to do so,'. They are able to speak, though their command of language is very poor. Their memory is very feeble. In some cases it is highly developed, though not the intellect. They can mechanically repeat without any mistake what is taught to them, but cannot understand its meaning. They are easily roused to passion, and may consequently become dangerous. They commit theft or even murder. Owing to their repulsive manners and habits it is not possible to associate with them, but with a little patience and perseverance they can be taught to dress decently, to eat properly and to control their animal instincts.'

Dealing then with feeble-mindedness, Modi observed:

'Under the Mental Deficiency (England) Act, 1913 feeble-minded persons or mornes are defined as persons in whose early age mental defectiveness not amounting to imbecility, yet so pronounced that they require care, supervision and control for their own protection, or for the protection of others, or, in the case of children that they by reason of such defectiveness appear to be permanently incapable of receiving proper benefit from instruction of ordinary schools. Feeble-minded individuals do not as a rule, present bodily deformities and stigmata of degeneration, and are often capable of making their own living although they lack in initiative and ability or any work of responsibility. Such persons, however, develop various or criminal propensities, especially of a sexual nature, and are apt to commit assaults or even murders, as are incapable of restraining their impulses.'

Taylor in his Principles and Practice of Medical Jurisprudence Volume-I, 11th Edition at page 545 stated that sanity must be presumed, and insanity proved to the satisfaction of a Judge, before it can be legally accepted. He classified mentally defective persons as idiots, imbeciles and feeble-minded persons. Under the heading idiots, imbeciles or feeble-minded persons, he described all these three exists from birth or from an early age, mental defectiveness of varying degrees as stated by him. The definition of idiot as made by Taylor is clear that idiocy is not always congenital. It can be either congenital or the mental defectiveness may set in from an early age. True, Modi has described idiocy as a congenital condition, but in saying so the opinion expressed by Modi runs counter to that expressed by Taylor. The dictionary writers have described idiocy as a necessary congenital condition but in so defining the term, the definition runs counter to the views expressed by Taylor in his Principles and Practice of Medical Jurisprudence.

11. In Pakkiri Swamy Mudaliar v. Krishna Swamy, : AIR1973Mad36 a suit was filed by the wife as next friend of the plaintiff who was described as a person of defective understanding and an imbecile and as such incapable of protecting his own interest. The objection was taken that under the Hindu Law, a congenital idiot was not entitled to inheritance or obtain a share in the family property and two medical certificates were relied upon, one dated 8-10-1956 and another dated 21-9-1960 to contend that they established congenital idiocy. The trial judge held that those certificates and the description made in the plaint established congenital idiocy. It was held by the Bench :

'The learned trial Judge himself has not referred to any principle or authority on the basis of which such presumption can be raised....................The defence taken by the fifth defendant in this behalf cannot be upheld on the basis of any presumption, as the learned trial Judge has done.'

In a very early case in Surti v. Narain Das. (1890) ILR 12 All 530 the meaning to be given to the word 'Jad' and the relative value to be given to those words was considered. It was observed :-

'In dealing with these general and vague phrases and terms such as Unmataka and Jad, one must not be guided merely by their philological signification, but must be satisfied as to what the law-givers who used those terms themselves understood'.

The mental capacity of one Mathu Lal arose for consideration in that case. On facts it was found that Mathu Lal was not proved to be either an idiot or an insane person. It was observed:

'The rule Hindu law which disqualifies 'idiots' and 'madmen' from inheritance should be enforced only upon the most clear and satisfactory proof that its requirements are satisfied. The rule does no contemplate the disqualification of persons who are merely of weak intellect in the sense that they are not up to the average standard of human intelligence, or endued with the business capacity to manage their affairs properly'.

Referring to the certificate granted by one Dr. Hilson on 27-11-1879, it was observed :

'His whole evidence proves nothing more than a mere suspicion that there may have been a congenital idiocy or weakness of mind. But that is not sufficient in my opinion to prove that it was so either at the birth of Mathu Lal or the death of Salig Ram on the 10th September 1879.'

In Tirumanagal Ammal v. Ramaswami Ayyangar. (1863) 1 Mad HCR 214 the congenital idiocy was established and in the inheritance sought for on behalf of such a congenital idiot was rejected. The Bench, however observed :

'The question of unsoundness and imbecility is to be determined not upon wire-drawn speculations but upon tangible and unmistakable fact and being clearly of opinion that there are such facts in this case, that this unhappy youth is congenitally imbecile and therefore incapable of inheriting we dismiss this appeal with costs.'

In Ran Birjai Bahadur Singh v. Jagatpal Singh, (1891) ILR 18 Cal 111 the Privy Council observed :

'Exclusion, under the Hindu Law, of a claimant from the inheritance on the ground of insanity could not be inferred merely from his being described in the plaint as insane, from his suing by a guardian certified under Act XXXV of 1858. Although he might be incompetent to commence the suit or to proceed with it except by a guardian , this did not establish that he was excluded when the succession opened'.

All these cases have, therefore laid down that mere proof of idiocy at a point of time does not establish congenital idiocy and that is a fact to be proved as any other fact and cannot be presumed; the presumption on the other hand being that sanity must be presumed unless congenital idiocy is established. In K. Lata v. Damodar Reddy, (1973) 2 AP LJ 414 (supra) the question arose whether at the time the two parties were married in May 1966, Lata was an idiot. Under, the Hindu Marriage Act, a marriage may be solemnised if neither party is an idiot at the time of marriage. The husband applied for annulment of the marriage on the ground that Lata was an idiot at the time of the marriage. The question did not arise in that case whether Lata was a congenital idiot. A bench of this court, however, proceeded to observe that the husband must further establish that the mental faculties of the wife are such that she lost the power of understanding or reason from her birth and that it is not a case of perversion of understanding and confirmed the finding that Lata, aged 17 years at the time of her marriage, was devoid or destitute of reason or understanding or intelligence from birth.

Mr. Ramachandra Rao, learned counsel has placed strong reliance on these observations to submit that once idiocy is established as was established in this case, the court should presume congenital idiocy as was done in Lata's case, there was no need for the court to have gone into the question of the congenital idiocy of Lata. It was enough if Lata was established to be an idiot at the time of her marriage and once that was established, there was no further need on the part of the husband to establish congenital idiocy of Lata. The observations made by the Bench that the husband had to establish congenital idiocy go beyond the requirements of the Act and are, therefore treated as obiter.

12. We do not also find any force in the submission made by Mr. Ramachandra Rao that we would draw any presumption in favour of the congenital idiocy by taking any recourse to a presumption arising under Ss. 112 and 114 of the Evidence Act. In Mahendra v. Sushila Mahendra : [1964]7SCR267 (supra) and in E. Michel Raju v. Sarah Janaki (AIR 1974 Mys 61) (supra) the paternity of the children was disputed. Those children were born fully developed but the husband had access to the wife only from a time cutting into the full period of gestation. In both the cases it was held that as the child was conceived before the consummation of the marriage, the child must be held to have been born to the wife by some person other then the husband. We do not consider that the presumption drawn in such cases ought to be drawn in favour of holding Ramakrishna, born in the year 1941, a congenital idiot because there was proof that he was an idiot by the year 1964 or from some years after his birth.

13. Under S.3 (5) of the Lunacy Act, a lunatic means an idiot or person of unsound mind. It is not the case of either of the parties that Ramakrishna was a person of unsound mind. The adjudication of Ramakrishna as a lunatic made in O. P. No. 1/69 on the file of the district Judge. Vishakapatnam, is a strong circumstance to hold that Ramakrishna was an idiot by the date the said O. P. was filed. We have been taken through the judgment in which the certificate and the evidence of Dr. Appala Raju have been extracted. We have also considered the record of examination of Ramakrishna made by the Sub-Judge resulting in his order dated 3-12-1968 and also that made by the District Judge in O. P. No. 1/69.

From the manner in which Ramakrishna gave answers to some of the questions put to him during such examination, we have no doubt whatsoever that Ramakrishna answers the description of person who is mentally defective to such a degree as not to able to guard himself against common physical dangers and was, therefore, an idiot by at least 1968. As an imbecile is only variant of an idiot, the certificate granted by Dr. Appala Raju that Ramakrishna was an imbecile does not support the extreme submission made by the learned Advocate General that the imbecility of Ramakrishna is not sufficient to establish idiocy. In the view we have taken that congenital idiocy is to be exclusively established by the 1st defendant, there is no burden cast on the plaintiff to establish from which particular age Ramakrishna began to show signs of idiocy and for which specific supervening circumstance.

14. We have been taken in detail through the oral evidence of D. Was. 1 to 3 and P. Was. 1 to 3. An analysis made of such evidence brings to the forefront the following facts regarding the mental and physical condition of Ramakrishna ranging from the moment of his birth in the year 1941 till his death in the year 1970. Ramakrishna would appear to have had normal physical growth. He grew to a height of 5 feet 4 inches and was weighing about 160 pounds by the date of his death. His eye-sight was normal. He was not deaf. He used to take food normally though at times he was suffering with constipation. The size of the head was normal. At his age of about 6 years he was admitted in St. Joseph's School at Vishakapatnam in Baby Class. He was going to the school in a rickshaw along with the 1st defendant. Both of them were getting their mid-day meals sent to the school in a carrier.

Ramakrishna, however studied in the school only for a brief period of one or two months and during this period he could learn only the first six letters of the Telugu alphabet. He did not continue his studies thereafter. He developed epileptical fits from his age of 3 or 5 years from which he suffered till his death. He was being taken to cinemas now and then. He was having the preference for upma and idli in the matter of his food habits. For the epileptical fits from which he has been suffering from his age of about 3 years he was treated successively by Dr. Patrudu of Chodavaram and by another Dr. Krishna Rao, who , it is in evidence, is since dead. He was also taken to Madras for being treated by Dr. Ramamurthy, a Neurosurgeion and also by some doctors at Cuttack, whose particulars are not available. None of these doctors who treated Ramakrishna in his childhood years from his 3rd year onwards have been examined to say about the mental condition of Ramakrishna.

DW-2 made a statement that at times Ramakrishna used to understand what they were telling him. According to DW-2 the father's death had a serious impact on the health of Ramakrishna and with the treatment given to him in the Mental Hospital, Ramakrishna had even lost any small intelligence he was having previously and he stopped taking food and used to always lie down. The witnesses have, however, given divergent versions regarding other details. D. Was. 1 to 3 were saying that Ramakrishna was talking to them, was accosting visitors, was listening to radio and was spending some time every night in the company of his father, narrating to his father the events of the day and the story of the pictures he had witnessed, D. Was. 1 to 3, however, subscribed to a version that Ramakrishna was living a vegetable life and was not in a position to comprehend anything and was even passing urine and stools in his clothes.

To the extent to which the admissions referred to above have been made by D. Was. 1 to 3 , they do not give us any impression that Ramakrishna was a congenital idiot. If he was a congenital idiot, he would not have been sent to the convent school and he would not have even picked up the first six letters of the Telugu alphabet. He would not have been in a position to express his preference for certain tiffins like upma and idli; The evidence of D. W. 2 that Ramakrishna did not have any other ailments excepting the fits indicates that the onset of fits from about the third year of Ramakrishna had adversely affected the mental health of Ramakrishna. The certificate issued by Dr. Appala Raju that the mental condition of Ramakrishna did not develop beyond the 5 years assumes importance. The certificate indicates that the mental health was present as in a boy aged 5 years and it is not a case of a total absence of mental health.

Mr. Ramachandra Rao has been at pains to persuade us to accept the evidence of D. Was. 2 and 3. A reading of the evidence of D. W. 2 leaves no doubt whatsoever that whatever be the affection with which she looked after Ramakrishna, her present alignment to support the cause of the 1st defendant is fatal. The amount of Rs. 3,000/- which she got by selling her husband's property after she became a widow is under the control of the 1st defendant. She is being maintained by the 1st defendant. He is also paying her a monthly allowance of Rs. 20/-. Living in the protection and care of the 1st defendant, she cannot be expected to have deposed in any other manner. We have been taken through the evidence of D. W. 3 as well. We agree with the assessment of the evidence of D. Was. 2 and 3 as made by the Sub-Judge and we do not consider D. Was. 2 and 3 as witnesses, on whose evidence, reliance could be placed.

14A. There are some circumstances relating to the conduct of parties which go to indicate that Ramakrishna was never considered to be a congenital idiot. Padmaraju in executing the registered partition deed under Ex. A1 made a reference regarding Ramakrishna in the following manner :

'Ramakrishna, my eldest son, is innocent and has since some years become a weak-minded person, unable to understand matters of business'.

If really Ramakrishna was a congenital idiot, Padmaraju would have described Ramakrishna as lacking in intellect from the moment of his birth and he would not have referred to Ramakrishna in the manner he did Ex. A1. In the year 1963 he made Ramakrishna execute a power of attorney in favour of P. W. I and that power of attorney was attested amongst others by the 1st defendant as well. The 1st defendant gave an explanation that during his lifetime Padmaraju was not allowing his sons to contradict him in any manner and he, therefore, attested the power of attorney at the behest of his father. By the date of the power of attorney, the 1st defendant was major he having attained his majority in about the year, 1961. His share in his family property was also separated by then. He need not have apprehended any retribution at the hands of his father, if he had refused to attest the power of attorney.

The power of attorney is a registered document and the normal presumption is that the Sub-Registrar would have made equiry of Ramakrishna as to whether he executed the power of attorney in favour of P. W. 1 and he would have registered that document only after the Sub-Registrar was satisfied that Ramakrishna expressed before him that he in fact executed the power of attorney. The circumstance that Ramakrishna was given an equal share in the property along with his brothers and he executed the power of attorney in favour of P. W. 1 which was attested by the 1st defendant are strong circumstances to indicate that Ramakrishna was not a congenital idiot. When disputes arose between P. W. 1 on the one hand and the 1st defendant on the other hand regarding the right to manage the properties of Ramakrishna, the 1st defendant had originally taken the plea that Ramakrishna cancelled the power of attorney executed in favour of P. W. 1 and had asked the 1st defendant himself to manage his share of the properties. I was even alleged by the 1st defendant that Ramakrishna executed will, a statement made by the 1st defendant which can be consistent only with the hypothesis that Ramakrishna was having rights in the property in terms of the partition deed.

The congenital idiocy of Ramakrishna was set up much later during the proceedings in O. S. No. 7/67. This is again a strong circumstance which militates against the version put forward by the 1st defendant that Ramakrishna was a congenital idiot. After Ramakrishna was admitted in the American Hospital in 1967, he expressed a desire to be taken home from the hospital. He was, therefore, aware of the surroundings in which he was living and was expressing himself to be shifted to more congenital surroundings. The answer put to him by either the Sub-Judge or by the District Judge reveal that he was conscious of his name, conscious of his parents, brothers and sisters and conscious of his disease. He was no doubt not conscious of his rights in the properties nor was he conscious regarding the number of his brothers and sisters. That mental state reflected in his answers go to indicate that he was not then in a position to look after his affairs but do not establish any congenital idiocy. Ramakrishna was both an income tax and wealth tax assessee. He was being assessed to those taxes sparately till his death.

All the 'A' Schedule properties which fell to the share of Ramakrishna were under the occupation of tenants. The 1st defendant was collecting the rents and was crediting those rents to the account of Ramakrishna. Though defendants 1 and 2 started a new partnership business, they have opened a separate account in the name of Ramakrishna showing the amounts due to him as per accounts and the 1st defendant never made any demur regarding the various amounts outstanding to the credit of Ramakrishna or the payment of separate income tax and wealth tax by Ramakrishna. The Municipal Taxes payable on the properties allotted to the share of Ramakrishna were being paid from the amounts collected on behalf of Ramakrishna and the 1st defendant did not at any time apply to the municipality for mutating the properties allotted to Ramakrishna in the name of either himself or that of his brother, the 2nd defendant. This conduct on the part of the 1st defendant, even after the death of Padmaraju, is a strong circumstance to hold that defendants 1 and 2 did not dispute the right of Ramakrishna for an allotment of an equal share in the family properties in the family partition effected by Padmaraju.

15. A reading of the judgment of the learned Sub Judge reveals that he drew the presumption backward of the mental state of Ramakrishna because of the observations made by a Bench of this Court in Lata's case (1973) 2 APLJ 414. We have explained how those observations were to be treated as obiter. If, therefore, the presumption backward regarding the mental state of Ramakrishna is not legally permissible, there is no escape from the conclusion that Ramakrishna was not proved to have been a congenital idiot and the evidence and the circumstances referred to by us amply establish that Ramakrishna was not a congenital idiot, but his idiocy developed from his age of 3 or 5 years ever since he became epileptic, the only disease he suffered from after his birth.

16. Though during trial and effort was made to say that after the Hindu Succession Act of 1956 congenital idiocy ceased to be a disqualification from inheritance, the Advocate-General has frankly conceded that as in this case Ramakrishna was born in the year 1941 and was claiming right in the family properties by birth, the changes made in the law of inheritance by the Hindu Succession Act of 1956 are not applicable to Ramakrishna and that Ramakrishna would quality for a share in the family properties only if he is not a congenital idiot. We have, therefore, no hesitation in holding that Ramakrishna was not a congenital idiot.

17. On the death of Ramakrishna, plaintiff and defendants 1 to 5 have each become entitled to claim a 1/6th share in those properties.

18. No other submissions have been made before us by either of the learned counsel.

19. A. S. No. 886/75 is allowed, granting the decree in favour of the plaintiff in O. S. No. 197/71 is indicated below. A preliminary decree for partition is accordingly passed directing the partition of the plaint 'A' Schedule by metes and bounds and alloting one such share each to plaintiff and defendants 2 to 5. Items 2 to 5 of the plaint 'B' Schedule are moveables whose value is Rs. 17,868-48 P. The plaintiff and defendants 1 to 5 will be each entitled to an amount of Rs. 2,978-08 P. plaintiff and defendants 2 to 5 are each granted a decree for Rs. 2,978-08 P. as against the 1st defendant alloting at the same time items 2 to 5 of the plaint 'B' Schedule and the balance amount in items 6 of the plaint 'B' Schedule to the share of the 1st defendant. Items 1 to 3 of the plaint 'C' Schedule and Item 1 of the plaint 'B' Schedule are outstandings due to the estate of Ramakrishna. Of them, item 2 is the amount at which the relief of accounting sought for by the plaintiff was valued in O. S. NO. 7/67. There cannot, therefore, be a preliminary decree for partition in respect of these items.

The 1st defendant who managed the affairs of the Ramakrishna is, therefore, made accountable in respect of all such monies referable to the estate of Ramakrishna from 30-11-1964, the date on which Padmaraju died, till the date of passing the final decree and in taking such accounts, deductions are directed to be given for all amounts collected by the Manager appointed for the properties of Ramakrishna in the lunacy proceedings and the expenses incurred by the said manager either towards his remuneration or for expenses incurred by him during the course of his management. The balance, amount so ascertained if the course of final decree proceedings is directed to be divided into 6 shares and a decree for the amounts payable to plaintiff and defendants 2 to 5 is directed to be passed against the 1st defendant, making such provision for interest from a date and at rates which are legally permissible. We find that though the plaintiff's right to a 1/6th share was denied even before she filed O. S. No. 197/71, the plaintiff has paid only a fixed court fee of Rs. 200/-.

The payment of a fixed court fee is not correct and the plaintiff should be called upon to pay the ad valorem court fee payable both on the plaint in O. S. No. 197 of 1971 and on the memorandum of appeal in appeal suit No. 886/75 at the time she applies for passing of a final decree in the suit. The court fee payable by each of defendants 2 to 5 on their respective 1/6th shares in the plaint 'A' Schedule items and plaint 'B' Schedule items 2 to 6 is also directed to be collected before the final decree is passed in their favour as well. Such court fee, as is if any payable, while passing the final decree in respect of item 1 of plaint 'B' Schedule and items 1 to 3 of plaint 'C' Schedule is also directed to be collected from each of plaintiff and defendants 2 to 5 at the time the final decree is passed in their favour towards their respective 1/6th shares in those specified items of the plaint schedule properties. The 1st defendant is directed to pay the plaintiff her costs both in the suit in A. S. No. 886/75. The other parties will bear their costs.

20. So far as Transferred Appeal No. 187/78 is concerned the relief of accounting sought for in that suit has been provided for in the decree to be passed in A. S. No. 886/75. It is, therefore, not necessary to pass any separate decree for accounting in the said transferred appeal and it is accordingly dismissed directing the parties to bear their respective costs throughout so far as O. S. No. 7/67 and Transferred Appeal No. 187/78 are concerned.

21. An oral request on behalf of the first defendant in the suit for leave to appeal is made. We do not consider that any question of law of substantial importance requiring the decision by the Supreme Court arises in this case. The oral request is, accordingly, refused.

22. Order accordingly.


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