1. This is a defendants' appeal out of a suit brought for a declaration that a certain kobala which had been executed by one Bir Bahadur Singh 'alias' Kalika Singh Chhetri was a void one as the alleged vendor was a person of unsound mind and did not fully comprehend the effects of the acts done by him. The suit had a chequered career.
2. The mother of the alleged lunatic had filed a suit making herself and her son plaintiffs. She had applied for leave to sue as a pauper. She was allowed to do so. No formal leave was at the initial stage taken for the proper representation of the alleged lunatic. Such defects were cured when the suit came up for hearing before the final stage.
The suit had been dismissed at one stage as no proper steps were taken. An application for rehearing was subsequently filed and the suit was revived. This is how the suit had been pending from the end of 1947 till the end of 1949 when the trial came to an end in the Lower Court. The declaration, as prayed for, has been made. The defendants, one of whom was the transferee under the conveyance, have both appealed.
3. The principal questions for consideration in this case are whether Kalika was a person of unsound mind and on whom would the onus lie in the facts of the present case, and what was the mental condition of Kalika at the relevant time.
4. The plaintiffs' case was that Sardar Bahadur Chhetri, father of Kalika, died in September, 1944, leaving the widow Kumkuma Chhetrini and a son Kalika. He had other issues also, but it is not necessary to advert to the same for the purpose of the decision in this case. According to the mother Kumkuma, her son Kalika was of Insane mind for several years before the death of her husband and had on certain occasions been sent to the Asylum at Darjeeling and also to Ranchi as the mother had difficulties in managing him.
It was further alleged that on 21-8-1945, Kalika purported to have executed a sale deed in favour of Lachmi Devi wife of Bahadur Singh Chhettri (both of whom have been impleaded as defendants) of the property which belonged to the father of Kalika. It is alleged that Kalika was pf unsound mind at the time when the transaction had taken place.
On the other hand, the defendants pleaded that Kalika was a man of perfectly sound mind and was healthy and no fraud had been perpetrated as alleged. The title had been properly conveyed in favour of the defendants. Other questions also had been raised which will be referred to at the proper place after we consider the question as to the procedure which should be followed in a case of this description.
5. When a transaction is attempted to be impeached on the ground that the person who has executed the document was a man of unsound mind, the initial onus undoubtedly lies on the person who comes up with the case that the executant was a person of unsound mind. Normally, the presumption is of sanity. In the present case, therefore, the initial onus is on the plaintiffs to show that Kalika was a man of unsound mind.
If, however, there is sufficient evidence to prove that the person whose mental condition and capacity are in doubt had been adjudged under the Lunacy Act to have been a lunatic, the burden shifts to the person who alleges his sanity. Lord Langdale in 'Snook v. Watts' (1848) 11 Beav 105 (A) pointed out that though the finding of a person being insane did not bind third parties, yet it cast the burden of proving the person's sanity on the party alleging it.
It was pointed out that when a man was found to have been insane at a particular period, the mere proof of one stray act apparently in the manner of a man of sound mind would not, if unaccompanied by other proofs, be sufficient to demonstrate that the person had been acting as a normal man during a lucid interval.
6. Reference may also be made to the observations of Thurlow, L. C. in the 'Attorney General v. Parnther' (1792) 3 Bro CC 441 (B). The Lord Chancellor pointed out,
'There is an infinite, nay almost an insurmountable difficulty, in laying down abstract propositions upon a subject which depends upon such a variety of circumstances as the present must necessarily do. General rules are easily framed; but the application of them creates considerable difficulty in all cases in which the rule is not sufficiently comprehensive to meet each circumstance, which may enter into, and materially affect the particular case.
There can be no difficulty in saying that if a mind be possessed of itself, and that at the period of time such mind acted, that it ought to act efficiently. But this rule goes very little way towards that point which is necessary to the present subject; for though it be true, that a mind in such possession of itself, ought, when acting, to act efficiently, yet it is extremely difficult to lay down with tolerable precision, the rules by which such state of mind can be tried.
The course of procedure, for the purpose of trying the state of any party's mind, allows of rules. If derangement be alleged it is clearly incumbent on the party alleging it, to prove such derangement. If such derangement be proved, or be admitted to have existed at any particular period, but a lucid interval be alleged to have prevailed at the period particularly referred to, then the burden of proof attaches on the party alleging such lucid interval, who must show sanity and competence at the period when the act was done and to which the lucid interval refers. (See 'Cartwright v. Cartwright' (1793) 1 Phill Ecc 90 at p. 100(C), 'Hall v. Warren' (1804) 9 Ves 605 at p. 611 (D) 'White v. Wilson' (1806) 13 Ves 87 at p. 88 (E). See also 'Van Gritten v. Foxwell' (1897) AC 658 (F); 'Hill v. Clifford' (1907) 2 Ch 236 (G)).
7. The principles referred to above have been applied in Indian Courts as well. In 'Seshemma v. Padmanabha Rao' AIR 1917 Mad 265 (H), where a person was found to be a lunatic under Act 35 of 1858 a presumption was raised that he continued to be of unsound mind until the contrary was shown. The onus was placed on those who asserted to prove that he was of sound mind when he made the alleged adoption.
8. The provisions contained in Section 12, Contract Act supported the proposition referred to above. In the first paragraph of that section the initial onus is placed upon the person who alleges that one is of unsound mind. The second paragraph of that section refers to a case where a person is usually of unsound mind but occasionally of sound mind as being competent to make a contract when he is of sound mind. In such a case, it is for the person who alleges that it was during the lucid interval that the contract had been made to prove that fact.
9. If there is no finding under the provisions of the Lunacy Act but if there is sufficients evidence to show that a person had at a certain stage been of unsound mind, the same principles as had been applied in the case of a finding under the Lunacy Act would be attracted. The general principles enunciated in 'Attorney General v. Parnther', (B), were applied by the Nagpur High Court in 'Mohanlal v. Vinayak' AIR 1941 Nag 251 (I). See also 'U. Aung Ya v. Ma E. Mai' AIR 1932 Rang 24 CJ).
10. Bearing these principles in mind we may now refer to the proved facts in the present case. Kalika is alleged by some of the plaintiffs' witnesses to have developed signs of unsteadiness at an early age, but it is not possible for us to come to any conclusion on such scrappy materials, particularly when the admitted fact is that he was studying in a school, had passed the Matriculation examination and had also subsequently entered the police service.
The proved fact, thereafter, however, assumes a more definite character. He had to give up service in the police because of aberrations; the exact nature of such aberration is not, however, available to us.
11. There are certain materials, however, which conclusively show the mental condition and the general behaviour of Kalika from the beginning of 1942. (After considering the materials the judgment proceeds:) Apart from the oral evidence to which we have not yet made any reference, the documentary evidence as referred to above indicates that he was of unbalanced mind and had to be kept under detention and observation on, at least, three occasions during a period about two years and a half. Did he improve after the last report referred to above and cease to show signs of insanity or unstableness and become a normal man again?
The facts such as above would place the onus on the party who alleged that Kalika had recovered and become a normal man fit to appreciate the consequence of his own acts fully. The evidence as to the subsequent period, therefore, will have to be analysed keeping in view the onus which lies on the defendants to show whether Kalika was in a normal and fit mental condition. (After analysing the evidence as to the subsequent period, the judgment proceeded:) Prom the analysis of the evidence as made above it appears that Kalika during the day when the conveyance was being drafted or executed did not show any signs of insanity or instability.
This solitary fact with regard to the incidents of a day or two, however, though at the crucial moment, will not be sufficient to prove conclusively as is required according to the authorities, in the case of a person who had been either insane or not in a fit mental condition for a long time for a period of about two years, that he was in a position to execute duly and legally a deed of conveyance. The evidence in support of the conclusion that Kalika was in a normal condition and had no further attack or derangement should be just as strong as is necessary in the case of a normal person to establish derangement.
12. In the present case, if we refer to the subsequent development, the physical and mental deterioration of Kalika, as disclosed during the trial and noted by the learned Judge himself, there is not much doubt that what is attempted by the defendant in the present case is to show that Kalika had got a lucid interval when the document was executed
When such an attempt is made and there is evidence about instability or lunacy both before the transaction as also subsequent to the transaction the onus is on the defendant to prove sanity and that has to be discharged more satisfactorily than by adducing evidence of the nature referred to above. We find that Kalika had been a victim of venereal diseases. The mental equilibrium of such a person is affected materially.
Where person with a past history of mental derangements is attacked with such diseases very cogent and satisfactory evidence will be required to prove a lucid interval to support due and proper execution of a deed.
13. We must on such evidence come to the conclusion that the evidence as to the sanity or Kalika has not been sufficient and the onus has not been duly discharged.
14. There is another aspect of the case, to which reference may be made and that is as regards the passing of consideration. While discussing the evidence as regards the mental condition of Kalika during the period when this transaction was being gone through, reference has been made to the absence of any sufficient evidence to prove the passing of consideration.
The payment of the consideration in the presence of the sub-registrar will in the absence of any other evidence have to be proved more strictly; particularly in this case defendant 1 keeps away and makes defendant 2 purchaser, and from the manner in which necessary funds are collected and in the course of a few hours, it must be stated that defendant 2 has not been able to show that she had the necessary means or could collect the necessary funds to pay the consideration which is mentioned in the document.
The fact that the consideration was not paid in the presence of the pleader who was engaged for drafting or of any one of the witnesses, including the identifier leaves a lacuna which has not been filled up by the mere note left by the sub-registrar that the consideration had been paid in his presence.
A suggestion has been made that in such cases where there is earlier history and subsequent corroboration as to the mental derangement of the party in question, such payment of consideration may be an eye wash to be taken back after the registration is complete. We hold, therefore, in agreement with the trial Court that the consideration for the transaction had not been paid.
15. In view of the conclusions reached by us, it is not necessary to deal with the other question as regards the title to the property, whether it was an agricultural property or a non-agricultural one for determining whether Kumkuma had any interest in that property or not.
On the conclusion reached that Kalika was of unsound mind and was required to be represented by a next friend and the mother was the proper person to represent him, she represented not only herself, but the son as well.
16. On the conclusion, reached by us this appeal will stand dismissed.
17. In the circumstances of this case, there will be no order as to costs in this Court.
P.K. Sarkar, J.
18. I agree.