Kerala High Court
Sherly D'Souza vs Marie Celine D'Souza on 23 October, 2024
RSA NO. 190 OF 2016 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM CR
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
RSA NO. 190 OF 2016
AGAINST THE JUDGMENT&DECREE DATED 26.11.2015 IN AS
NO.68 OF 2014 OF III ADDITIONAL DISTRICT COURT, KOLLAM
ARISING OUT OF THE JUDGMENT&DECREE DATED 26.11.2013 IN OS
NO.760 OF 2011 OF PRINCIPAL MUNSIFF COURT , KOLLAM
APPELLANT/RESPONDENT/DEFENDANT:
SHERLY D'SOUZA
W/O.DENZIL D'SOUZA, MILLIE LODGE, HOUSE NO.64,WARD
NO.51, THANGASSERY, KOLLAM WEST VILLAGE,KOLLAM
TALUK, KOLLAM - 691 007, REPRESENTED BY HER POWER
OF ATTORNEY HOLDER, DENZIL D'SOUZA,AGED 68 YEARS
S/O.CECIL D'SOUZA, RESIDING AT MILLIE LODGE,BISHOP
PALACE NAGAR, HOUSE NO.64, WARD NO.51,THANGASSERY,
KOLLAM.
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.SAJU J PANICKER
RESPONDENTS/APPELLANTS/PLAINTIFFS:
1 MARIE CELINE D'SOUZA
RETD.PROFESSOR, D/O.LATE DUNCAN FERNANDEZ,MILLIE
LODGE, HOUSE NO.64, WARD NO.51, THANGASSERY KOLLAM
RSA NO. 190 OF 2016 2
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WEST VILLAGE, KOLLAM TALUK, KOLLAM.(CORRECT
ADDRESS- NEVIL DALE, PEOPLES NAGAR - 2,NEAR FIRE
STATION, KADAPPAKKADA, KOLLAM).
2 MAXWELL FERNANDEZ @ MAXIMUS FERNANDEZ
S/O.LATE DUNCAN FERNANDEZ, MILLIE LODGE,HOUSE
NO.64, WARD NO.51, THANGASSERY,KOLLAM WEST
VILLAGE, KOLLAM TALUK, KOLLAM.(CORRECT ADDRESS'
15, "SHILPA", NRA 142,VADAKKAMBAKKOM, KOLLAM EAST
VILLAGE, KOLLAM).
3 RENIE FERNANDEZ
D/O.LATE DUNCAN FERNANDEZ, MILLIE LODGE,
HOUSENO.64, WARD NO.51, THANGASSERY, KOLLAM WEST
VILLAGE, KOLLAM TALUK, KOLLAM.(CORRECT ADDRESS-
A1-NO.24, 3RD A CROSS, D'ZIRE,HRBR LAYOUT,
BANGALORE - 43).
BY ADVS.
R1 & R2 BY ADV.SRI.A.JANI(KOLLAM)
R1 & R2 BY ADV. SRI.P.MARTIN JOSE
R1 & R2 BY ADV. SRI.P.PRIJITH
r1 & R2 BY ADV. SRI.THOMAS P.KURUVILLA
R2 & R3 BY ADV. SRI.R.MOHANA BABU
R2 & R3 BY ADV. SRI.M.AJITH (KARICODE)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 04.10.2024, THE COURT ON 23.10.2024 DELIVERED THE
FOLLOWING:
RSA NO. 190 OF 2016 3
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CR
JUDGMENT
1. Appellant is the sole defendant, and the respondents are the plaintiffs in O.S.NO.760/2011 filed before the Munsiff's Court, Kollam, on 27/10/2011 for partition and incidental reliefs. The parties are siblings. The plaintiffs, who are three in number, filed the suit for partition of the plaint schedule property having 48 cents belonged to the father of the plaintiffs and the defendant, Late Sri.Duncan Fernandez as per Ext.A1 Release Deed of the year 1981, among the plaintiffs and the defendant by allotting 24/150 shares each to the Plaintiffs 1 and 2 and 51/150 shares each to the 3 rd plaintiff and the defendant.
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2. Sri.Duncan Fernandez died on 05/02/1989. His wife Smt.Annabel Fernandez, who is the mother of the plaintiffs and the defendant, died on 30/11/2004. Apart from the plaintiffs and the defendants, Sri. Duncan Fernandez and Smt.Annabel Fernandez had another son Sri.Wilfred Fernandez who had died on 28/06/1996. On the death of Duncan Fernandez, Annabel Fernandez was entitled to get 50/150 share and each of the 5 children was entitled to get 20/150 share over the property of Duncan Fernandez. On the death of Gilfred Fernadez, Annabel Fernandez and the remaining 4 children is entitled to get 4/150 share each out of 20/150 share of Wilfred Fernandez. Smt.Annabel Fernandez executed Ext.A4 Sale Deed of the year 2003 conveying her share (54/150) to the 3rd Plaintiff and the RSA NO. 190 OF 2016 5 2024:KER:78390 defendant equally. Thus, as on the date of filing the suit, the plaintiffs 1 and 2 are entitled to get 24/150 shares each and the 3rd plaintiff and the defendant are entitled to get 51/150 shares each out of the plaint schedule property.
3.The defendant filed a Written Statement dated 12/03/2012 admitting that the plaint schedule property originally belonged to Duncan Fernandez but disputing the partition contending, inter alia, that the plaintiffs 1 and 2 had fraudulently created a Settlement Deed No.2243/1984 as if it is created by Duncan Fernandez in favour of them settling the plaint schedule property in favour of them. Duncan Fernandez and the 3rd plaintiff had filed O.S.No.133/1985 before the Sub Court, Kollam for setting aside the said settlement Deed in which the plaintiffs 1 & 2 herein were the defendants 1 & 2. The plaintiffs in the said suit contended RSA NO. 190 OF 2016 6 2024:KER:78390 that the said Settlement Deed is a fraudulent document and it has no legal validity and that Duncan Fernandez was laid up and he had not voluntarily executed the said Settlement Deed. The defendants therein, who are the plaintiffs 1 & 2 herein, contended that the settlement Deed is legally valid, and they have absolute title over the plaint schedule property. The said suit was seriously contested and the suit was decreed in terms of the Plaint on 11/01/1991. (Certified copy of the Judgment in O.S.No.133/1985 was marked in evidence before the First Appellate Court as Ext.B8). The plaintiffs 1&2 herein filed A.S.No.598/1991 in this Court and the same was dismissed as per Ext.B6 judgment dated 03/02/1998. The Second Appeal filed by plaintiffs 1& 2 herein in this Court as A.F.A No.22/1999 was dismissed for non-prosecution as per Ext.A3 judgment dated 02/02/2012 as the advocate for the appellants submitted that they are RSA NO. 190 OF 2016 7 2024:KER:78390 not interested in prosecuting the appeal. The suit is barred by res judicata on account of the decision in O.S.No.133/1985 and barred under Order 2 Rule 2 CPC. The suit is barred by ouster and limitation. On 16/12/1986, Duncan Fernandez, after recovering from illness, voluntarily executed Ext.B3 settlement giving the plaint schedule property to the 3rd plaintiff and the defendant. At that time, Duncan Fernandez was enjoying good health, and he was capable of understanding things properly. The 3rd plaintiff and the defendant effected mutation on the basis of Ext.B3 Settlement and they have been paying land tax since 1986. The plaintiffs have suppressed these material facts and filed the suit colluding with each other. Since there are several other properties, the suit is barred on the ground of partial partition. The suit is barred by limitation. RSA NO. 190 OF 2016 8
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4.The Trial Court dismissed the suit as per judgment dated 26/11/2013 holding that the plaint schedule property is not partible holding that the plaintiffs did not challenge Ext.B3 Settlement Deed though the defendant raised a contention with respect to the same in the Written Statement; that the finding in the earlier suit O.S.No.133/1985 is not relevant in the present suit as the plaintiffs have to prove that Ext.B3 which was executed subsequently in the year 1986 is also vitiated by the mental and physical incapacity of Duncan Fernandez; that the plaintiffs have no case that Duncan Fernandez was continuing in the same state of conditions as found in the former suit.
5.The plaintiffs filed A.S.No.68/2014 before the First Appellate Court, and the First Appellate Court allowed the appeal as per the judgment dated 26/11/2015, setting aside the judgment and decree of the Trial court and passing a RSA NO. 190 OF 2016 9 2024:KER:78390 preliminary decree for partition in accordance with the shares claimed in the suit. The First Appellate Court found that Duncan Fernandez had mental illness and he was incapable of protecting his interest from July 1984 and no evidence is adduced to prove that he recovered from mental illness thereafter; that he was not in a competent mental state to execute Ext.B3 Settlement; that Ext.B3 is void and non est in the eye of law; and that Ext.B3 need not be set aside and no prayer for the same is necessary.
6. This Court admitted this Regular Second Appeal as per Order dated 24/02/216 framing the following four substantial questions of law.
i. Whether the suit for partition was maintainable in the absence of a prayer for setting aside the settlement deed executed by the predecessor in favour of the appellant? RSA NO. 190 OF 2016 10
2024:KER:78390 ii. Was it legal for the appellate court to consider the question of validity of the settlement deed in the absence of pleadings and issue in that regard?
iii. Whether the finding of the court below that the settlement deed is void is based on evidence?
iv. Whether the court below was right in holding that a finding in an earlier suit that a document executed by the settler was obtained by undue influence as he was mentally infirm?
7. I heard the learned Senior Counsel for the appellant, Sri. S.V. Balakrishna Iyer, instructed by Adv. Sri. Saju. J. Panicker, and the learned Counsel for the respondents 2 and 3, Sri. R. Mohana Babu.
8. The learned Senior Counsel for the appellant contended in view of the admitted existence of Ext.B3 Settlement with respect to the plaint schedule property, a simple suit for RSA NO. 190 OF 2016 11 2024:KER:78390 partition is not sufficient. Prayer by way of setting aside or declaration challenging Ext.B3 Settlement deed is necessary. Even such suit is hopelessly barred as the limitation period is three years under Article 59 of the Limitation Act. A suit under Section 31 or 34 of the Specific Relief Act should have been filed by the plaintiff. There is no pleading in the Plaint that Ext.B3 is void, even though the plaintiffs were well aware of the existence of Ext.B3, at the least when it was produced as Ext.B9 in the Ext.B8 suit, much prior to the present suit. At any rate, the plaintiffs ought to have amended the Plaint incorporating necessary pleading & prayers and to have paid the necessary court fee when the defendant has filed a Written Statement opposing partition relying on Ext.B3. Merely because a next friend was appointed in an earlier suit under Order 32 Rule 15 CPC, it could not be held that the person with respect to whom the RSA NO. 190 OF 2016 12 2024:KER:78390 next friend was appointed is mentally ill. The Presumption is always in favour of sanity. Enquiry should have been conducted under the provisions of the Lunacy Act or Mental Health Act to arrive at a finding that a person is mentally ill. Learned Senior Counsel advanced his arguments referring to S. 7 of the Transfer of Property Act, and Ss. 10 to 12 of the Indian Contract Act. Senior Counsel cited the decision of the Patna High Court in Indar Singh and others v. Parmeshwar Dhari Singh and another [AIR 1957 Patna 491] to substantiate the point that the party contracting must have the capacity to arrive at a reasoned judgment as to the consequence of the contract he is entering into and it does not necessarily mean that a man suffering from lunacy to disable him from entering into a contract.
9. Learned Senior Counsel contended that the normal presumption is that a person is sane, and the onus is on the RSA NO. 190 OF 2016 13 2024:KER:78390 one who alleges insanity. Learned Senior Counsel cited the decision in Mohammad Yakub and others v. Abdul Quddus and others [AIR 1923 Patna 187], Shamnath Madan v. Mohamad Abdullah and others [AIR 1967 J&K 85] and Jyotindra Bhattacharjee v. Sona Bala Bora and others [AIR 2005 Guwahati 12] in support of this proposition.
10. Learned Senior Counsel contended that a person who could be subject to undue influence and thereby becomes unable to exercise his judgment freely could not be brought under S.12 of the Contract Act. Senior Counsel cited the decision in Ram Sundar Saha v. Rajkumar Sen Chowdhuri [AIR 1927 Calcutta 889] which is confirmed by the Privy Council in Rajkumar Sen Chowdhuri and others v. Ramsundar Saha and others. [AIR 1932 PC 69] and the decision of the Privy Council in Sayad Muhammed v. RSA NO. 190 OF 2016 14
2024:KER:78390 Fatteh Muhammad [(1894) ILR 22 PC 324] in support of this proposition.
11.Learned Senior Counsel argued that serious mental disorder or frail mental health is not relevant to decide the mental disorder or frail mental health at a later point of time. Senior Counsel cited the decision of the High Court of Punjab and Haryana in Lakshmi v. Ajaykumar and others [AIR 2006 P&H 77] in support of this proposition.
12.Learned Senior Counsel argued that enquiry into the mental state under Order 32 Rule 15 CPC is as on the date of filing the suit, and it does not have anything to do with the mental state involved in the suit. Senior Counsel cited the decision of the High Court of Andra Pradesh in Durduri Papi Reddi and others v. Duvvuri Rami Reddi [AIR 1969 AP 362] in which it is held that it must be remembered that any order RSA NO. 190 OF 2016 15 2024:KER:78390 passed under Order 32 Rule 15 does not finally decide as to whether the plaintiff was insane at the time when the transaction attacked in the suit were entered into by him and that the order appointing next friend does not deal with the subject matter of the suit or the issues involved in.
13.Learned Senior Counsel contended that the scope of enquiry under the Lunacy Act and under Order 32 Rule 15 CPC are quite different. Learned Counsel cited the decision of the High Court of Allahabad in Chatardhuj v. Harnandan Lal [AIR 1928 ALL 108] in support of this proposition. Senior Counsel contended that the enquiry under Order 32 Rule 15 CPC is entirely between the Court and the party for whose benefit the application under Order 32 Rule 15 CPC is filed and prosecuted. Senior Counsel cited the decision of the Patna High Court in Godawari Devi v. Radha Pyari Devi and others [AIR 1985 Patna 366] to substantiate this RSA NO. 190 OF 2016 16 2024:KER:78390 proposition.
14. Learned Senior Counsel cited the decision of the Delhi High Court in Nilima Ghosh v. Harjeet Kaur and others [AIR 2011 DEL 104] to substantiate the point that an unsound mind must be proved as on the date of execution of the contract.
15. Learned Senior Counsel argued that weakness of mind is not unsoundness of mind. The state of mind is sufficient to appreciate the nature of the act, the same is sufficient to hold the act valid. Senior Counsel cited the High Court of Nagpur in Kanhaiya Lal v. Harsing Laxman Wanjari [AIR 1944 Nag. 232] in support of this proposition.
16.The learned Senior Counsel argued that there must be prayer for declaring the document to be void for adjudging the document to be void under S.31 of the Specific Relief RSA NO. 190 OF 2016 17 2024:KER:78390 Act. An enquiry into the mental state is involved, and the court fee payable is under S.25 of the Kerala Court Fees and Suit Valuation Act. Senior Counsel cited the decision of this Court in Kumaran v. Chandran, [1985 KLT SN 69] in which it is held that in a suit for declaration that a document is null and void and does not affect the suit property, plaintiff has to pay court fee under S.25(b) of the Kerala Court Fees and Suit Valuation Act, 1959. Senior Counsel cited the Full Bench decision of this Court in Pankajaksha Kurup v. Fatima [1998(1) KLT 668] in which it is held that if a decree is null and void it is not necessary to set aside the same and the prayer for declaration is sufficient and the court fee has to be paid under S.25(b) of the Kerala Court Fees and Suit Valuation Act. Senior counsel cited the decision in Narayani Ammal v. Sanjeev [2001(2) KLT 588] in which it is held that in the case of voidable documents, the prayer can only be to RSA NO. 190 OF 2016 18 2024:KER:78390 set aside the document and not to declare the same as invalid and the court fee is payable under S.40 and not under S.25(b) of the Kerala Court Fees and Suit Valuation Act, 1959. Senior Counsel cited the decision of this Court in Karuna Kuries and Finance v. Kunju Vareeth [1999(2) KLT 118] in which it is held that if a decree is null and void it is not necessary to set aside the same and therefore, the prayer for declaration is sufficient and the court fee need to be paid under S.25(b) of the Kerala Court Fees and Suit Valuation Act and it is not necessary to pay court fee under S.40.
17. Senior Counsel cited the decision of the Hon'ble Supreme Court in Abdul Rahim and others v. Abdul Zabar and others [2009 (6) SCC 160] to substantiate the proposition that the plaintiff cannot seek partition without avoiding the instrument that stands an insurmountable obstacle in their RSA NO. 190 OF 2016 19 2024:KER:78390 way intestate succession.
18.Learned Senior counsel cited the decision of the Hon'ble Supreme Court in Asok Kumar TG v. Govindammal and another [2010 (14) SCC 370] to explain the principle of Lis pendens underlying Section 52 of the Transfer of Property Act in which it is held that if during the pendency of any suit in a Court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit; that if ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected; that on the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the RSA NO. 190 OF 2016 20 2024:KER:78390 transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion and that if the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property.
19.Learned Senior counsel cited the decision of the Hon'ble Supreme Court in Nawab John A and others v. V.N Subramaniam [2012(7) SCC 738] & Thomson Press India Ltd. V. Nanak Builders and Investors P Lts. [2013 (5) SCC 397] in which it is held that the effect of S.52 is not to render transfers affected during the pendency of a suit by a party to the suit void but only to render such transfers RSA NO. 190 OF 2016 21 2024:KER:78390 subservient to the right of the parties to such suit, as may be eventually, determined in the suit. In other words, the transfer remains valid, subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vender as may be eventually determined by the Court.
20.On the other hand, the learned Counsel for the respondents 2 and 3 contended that it is proved that Ext.B3 was executed during the period when Duncan Fernandez was mentally ill, and hence the said document is a nullity. It can plainly be ignored. No challenge against the same is required in a suit for partition. Ext.B3, which was executed during the pendency of O.S.No.133/1985, is prohibited under Section 52 of the Transfer of Property Act, and hence it is illegal. The defendant did not enter into the box to give evidence with respect to her case in the Written Statement. Her husband RSA NO. 190 OF 2016 22 2024:KER:78390 was examined as DW1. Ext.A4 document executed by the mother with respect to her share in favour of the 3 rd plaintiff and defendant in the year 2003 would also clearly reveal that the property is partible.
21. Learned Counsel cited the decision of the Hon'ble Supreme Court in Ramathan and others v. K.Rajamany (dead) through LRs and another. [2023 SAR online (SC) 971], in which it is held that when it is alleged that the document of sale is void then no cancellation would be necessary. Such a document can be ignored under law and that cancellation of a sale deed would be necessary only where it is alleged to be voidable on facts.
22. Learned Counsel cited the decision of the Hon'ble Supreme Court in Umadevi Nambiar v. Thamarassery Roman Catholic Diocese [2022 (7) SCC 90] in which it is held that RSA NO. 190 OF 2016 23 2024:KER:78390 it is not necessary for the plaintiff in a suit for partition to seek the cancellation of alienation.
23. Learned Counsel cited the decision of the Hon'ble Supreme Court in Prem Singh v. Birbal [2006(2) KLT 863 SC], in which it is held that when a document is void ab initio a decree for setting aside the same would not be necessary as the same is non est in the eye of law as it would be a nullity.
24. Learned Counsel cited the decision of the Hon'ble Supreme Court in Kewal Krishan v. Rajeshkumar and others [2021 SAR online (SC) 694] in which it is held that it is not necessary to specifically claim declaration as regards the void sale deeds by way of amendment to the plaint, the reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. It is held that a document that is void need not be challenged by claiming RSA NO. 190 OF 2016 24 2024:KER:78390 a declaration as the said plea can be set up and proved in collateral proceedings.
25. Learned Counsel cited the decision of the Hon'ble Supreme Court in Bhagwati Prasad v Chandramaul [AIR 1966 SC 735] in which it is held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by an evidence.
26. Learned Counsel cited the decision of the Hon'ble Supreme Court in Ram Sarup Gupta (dead) by LRs v. Vishun Narain Intercollege and others [1987 (2) SCC 555] dealing with pleadings, in which, it is held that in order to have fair trial it is imperative that the parties should state the essential RSA NO. 190 OF 2016 25 2024:KER:78390 material facts so that other party may not be taken by surprise; that the object and purpose of pleadings are to enable the adversary party to know the case it has to meet; and that the pleadings should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. It is also held that once it is found that in spite of deficiency in the pleadings, parties knew the case, and they proceeded to trial on those issues by producing evidence, in that event, it would not be open to a party to raise the question of absence of pleadings in appeal.
27.Learned Counsel cited the decision of this Court in Sreedevi v. Inspector General of Registration in WPC No.26248/2011 in which it is held that registration of cancellation deed is illegal when there is no reservation in the Settlement Deed for cancellation by the executant RSA NO. 190 OF 2016 26 2024:KER:78390 unilaterally. Learned Counsel cited the decision of this Court in Kakkoth Radha v. Vathakkathalakkal Datlak Musthaffa [2024 (4) KHC 339], in which it is held that in the absence of any right or revocation of the deed, in the deed itself, unilateral execution of the cancellation deed to cancel the gift deed is bad in law and is legally unsustainable. The remedy of the executant of such deed is under the specific relief Act to cancel such deed before the Civil Court. Ext.B3 document cancelling earlier Settlement Deed No.2243/1984 is in valid.
28.Learned Counsel cited the decision of this Court in Beevi Umma v. State of Kerala [2024 (2) KHC 25] in which it is held that S.52 of the Transfer of Property Act prohibits any transfer of property while proceedings are pending before any Court except under the authority of the Court and on such terms as it may impose and that the Court referred to RSA NO. 190 OF 2016 27 2024:KER:78390 S.52, is the Civil Court where the suit is pending consideration. Counsel contended that since Ext.B3 was executed during the pendency of O.S.No.133/1985, it is illegal.
29. Learned Counsel cited the decision of the Hon'ble Supreme Court in Thota Ganga Laxmi v. Government of A.P [2010(15) SCC 207] in which it is held that it is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties and that in case there is no declaration by a competent court both cancellation deed as well as registration thereof were wholly void and non est and meaningless transaction.
30. Learned Counsel cited the decision of this Court in Mary v. Leelamma [AIR online 2020 KER 332], in which it is held RSA NO. 190 OF 2016 28 2024:KER:78390 that the word mental infirmity, which is used in Order 32 Rule 15, is wider and would encompass something more than the word unsoundness of mind would cover. If a transaction appears to be unconscionable, then the burden of proving that it was induced by undue influence lies upon the person who was in a position to dominate the will of the other.
31. Learned Counsel cited the decision of this Court in Marci Celine D'Souza v. Renie Fernadez [1998 (1) KLT 888] in which it is held that the Court is not expected to conduct an elaborate enquiry under Order 32 rule 15 CPC, it is sufficient that a finding that person by reason of unsoundness of mind or mental infirmity is incapable of protecting his interest. It is always open to the defendants to take out another application to have the order revoked when the Court can fully go into the matter. In the case on hand, none of the parties have filed any application in O.S No. 133/1985. RSA NO. 190 OF 2016 29
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32. Learned Counsel cited the Division Bench decision of this Court in Vinesh v Raji Radhakrishnan [2024 KHC 936] in which it is held that Order 32 Rule 15 CPC shall apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and also to persons who though not so adjudged, are found by the Court, on enquiry to be incapable, by reason of any mental infirmity of protecting interest when suing or being sued.
33. Learned Counsel cited the decision of the Hon'ble Supreme Court in Chacko and another v. Mahadevan [2007(7) SCC 363] in which it is held that in a Second Appeal filed under S.100 CPC, High Court cannot interfere with the finding of fact of the First Appellate Court, and it is confined to only questions of law.
34. Learned Counsel cited the decision of the Hon'ble Supreme RSA NO. 190 OF 2016 30 2024:KER:78390 Court in Kesari Hanumar Goud S v. Aanjum Jahan and others [2013(12) SCC 64] to substantiate the legal proposition that the power of attorney holder cannot depose in place of the principal. It is held that the power of attorney holder cannot depose for the principal in respect of a matter, as regards which only the principal can have personal knowledge and in respect of which the principal can be entitled to cross-examine.
35. I have considered the rival contentions.
36. The pivotal question in this case is whether Duncan Fernandez had sufficient mental capacity when he executed Ext.B3. Here is a case in which there is overwhelming evidence that he did not have mental capacity, with zero pleading from the part of the plaintiff. A document executed by an insane person is null and void. There is no need to RSA NO. 190 OF 2016 31 2024:KER:78390 seek cancelation of a void document or declaration that such a document is null and void. But the party claiming that such document is null, and void has to make specific pleading to that effect. In the present case, no such pleading was made by the plaintiffs. No issue was framed by the Trial Court in this regard. The plaintiffs cannot plead ignorance of Ext.B3 since it was produced as Ext.B9 in the Ext.B8 earlier suit. At any rate, the plaintiffs came to know about the same, when the defendant filed Written Statement relying on Ext.B3 to oppose partition. The plaintiff did not opt to amend the plaint to incorporate necessary pleading with respect to the legality of Ext.B3. In all the precedents relied on by the Counsel for respondents 2&3, there were necessary pleadings as to the illegality of the document in question, which is quite lacking in the present case. The decisions cited by the Counsel for respondent 2&3 are clearly distinguishable on facts. Hence, I RSA NO. 190 OF 2016 32 2024:KER:78390 find that a serious lapse is there on the part of the plaintiffs to make necessary pleadings in the plaint with respect to the legality of Ext.B3.
37. Nevertheless, the parties joined on the issue with respect to the mental capacity of Duncan Fernandez, adduced evidence, and advanced their respective contentions on the basis of the same. The Trial Court did not consider the evidence with respect to the mental capacity of Duncan Fernandez on the ground of lack of necessary pleadings. The First Appellate Court framed the necessary issue in this regard and considered the evidence adduced by both the parties, and arrived at a conclusion that Duncan Fernandez did not have sound mental capacity when Ext.B3 was executed. The said finding is based on the proceedings in the previous suits in which it is found that Duncan Fernandez does not have sound mental capacity. In Ext.B8 judgment RSA NO. 190 OF 2016 33 2024:KER:78390 passed in O.S.No.133/1985 it is found that Duncan Fernandez did not have sound mental capacity since July 1984. It is also found that the physical and mental capacity of Duncan Fernandez is permanently affected by reasons of his age and illness relying on the medical evidence adduced in O.S.No.133/1985. It is revealed from Ext.B2 that in O.S.No.348/1989 filed by mother Anabell and the defendant, specific averment was made that Duncan Fernandez was treated in Medical College Hospital Thiruvananthapuram from July 1984, and he became insane. It is true that a finding as to the mental capacity of person in an enquiry under Order 32 Rule 15 CPC is only to consider whether such a person requires the assistance of a next friend in the main proceedings. It is only a summary proceeding. The finding as to the mental capacity of a person in an enquiry under Order 32 Rule 15 does not have a bearing in the main RSA NO. 190 OF 2016 34 2024:KER:78390 proceeding. If there is a dispute with respect to the mental capacity of such a person in the main proceeding, it has to be proved independently without reference to the proceedings under Order 32 Rule 15 CPC. In the case on hand, there is a finding in the main proceeding itself that Duncan Fernandez had mental illness since 1984, and hence, the impugned Settlement Deed No.2243/1984 is found to be invalid in Ext.B8. Ext.B8 judgment is confirmed in Ext.B6. The fact that none of the parties filed an application to cancel the appointment of the next friend for Duncan Fernandez during the pendency of O.S.No.133/1985 is also could be taken as a circumstance to hold that Duncan Fernandez was not mentally sound during the pendency of the said suit. If Ext.B3 is valid, mother Annabel would not get any share in the property of Duncan Fernandez on his death. Mother Annabel executed Ext.A4 dated 28.03.2003 in favour RSA NO. 190 OF 2016 35 2024:KER:78390 of the 3rd plaintiff and the defendant with respect to her share in the plaint schedule property. It also indicates that the parties are under the clear belief that Ext.B3 is not valid. In view of this evidence, the factual finding arrived at by the First Appellate Court on merits with respect to the mental capacity of Duncan Fernandez could not be said to be unsustainable. The First Appellate Court correctly appreciated the evidence and arrived at the right conclusion. There is no perversity in the matter of appreciation of evidence by the First Appellate Court.
38.The next question is whether the finding of the First Appellate Court is sustainable in view of the lack of material pleadings on the part of plaintiffs. In other words, whether the First Appellate Court is justified to enquire into the mental capacity of Duncan Fernandez as on the date of execution of Ext.B3 after framing the issue with respect to RSA NO. 190 OF 2016 36 2024:KER:78390 the same. In light of the lack of material averments in the plaint with respect to the voidability of Ext.A1, the answer is in the negative. In a normal case, I would have remanded the matter back to the Trial Court with the liberty to the plaintiff to amend the plaint to incorporate necessary pleadings with respect to the voidability of Ext.B3. But one material averment in the Written Statement of the defendant persuaded me to think otherwise. In Paragraph No.7 of the Written Statement, the defendant made a specific pleading that on 16/12/1986, Duncan Fernandez after recovering from illness voluntarily executed Ext.B3 settlement giving the plaint schedule property to the 3rd plaintiff and the defendant and at that time Duncan Fernandez was enjoying good health and he was capable of understanding things properly. This averment is based on the fact that Duncan Fernandez was not mentally sound. This averment by necessary RSA NO. 190 OF 2016 37 2024:KER:78390 implication indicates that Duncan Fernandez did not have sound mental capacity some time before 16/12/1986. The defendant opposed the partition relying on Ext.B3 Settlement contending that it was executed after the recovery of Duncan Fernandez from mental illness. This pleading was made, presumably because it was pleaded and found that Duncan Fernandez lost his mental capacity in the earlier judicial proceedings. In view of this specific pleading, it could be held that if the defendant wants to rely on Ext.B3, necessarily the defendant has to discharge her burden to prove that Duncan Fernandez recovered from mental illness. The defendant did not adduce any evidence to prove that Duncan Fernandez recovered from mental illness and regained sound mental capacity. When such a pleading is there before the Court, the Court can very well consider the mental capacity of Duncan Fernandez on the date of RSA NO. 190 OF 2016 38 2024:KER:78390 execution of Ext.B3 to enquire whether Duncan Fernandez had sufficient mental capacity to execute Ext.B3.
39. So, in the light of the peculiar facts and circumstances of the case, I hold that the First Appellate Court was fully justified to consider the voidability of Ext.B3 document with reference to the mental capacity of Duncan Fernandez on merits after framing an issue in this regard. Order 41 Rule 24 CPC permits the Appellate Court to determine the case finally after resettling the issues if sufficient evidence is before it. Hence there is no need for remand of the case back to the Trial Court.
40. The contention of the learned Counsel for respondents 2 & 3 that Ext.B3 is hit by the principles of Lis pendens embodied under Section 52 of the Transfer of Property Act is unsustainable. First of all, Ext.B3 is executed not during the RSA NO. 190 OF 2016 39 2024:KER:78390 pendency of the present suit. Secondly, it is executed during the pendency of O.S.No.133/1985. The argument that Section 52 of the Transfer of Property Act prohibits any kind of alienation of the suit property if it is made without permission of the Court is unsustainable. Any transfer made during the pendency of the suit makes that transfer subject to the final decision of the suit. In other words, the transferee pendente lite is also bound by the decree passed by the Court. The effect of S.52 is not to render transfers affected during the pendency of a suit by a party to the suit void but only to render such transfers subservient to the right of the parties to such suit, as may be eventually, determined in the suit. The execution of Ext.B3 during the pendency of the suit is not prohibited in any way. It has to be treated as subject to the decision of the court in O.S. No.133/1985. The ultimate decision in O.S.No.133/1985 was setting aside Settlement RSA NO. 190 OF 2016 40 2024:KER:78390 Deed No.2243/1984 impugned in the said suit. Since the earlier Settlement Deed No.2243/1984 was found void by the Court in O.S.No.133/1985, the decision in the said suit would not affect the validity of Ext.B3, if the same was validly executed. But Ext.B3 could not be said to be validly executed on account of the unsound mental capacity of Duncan Fernandez.
41. In view of the aforesaid discussion, I do not find any ground to interfere with the judgment and decree passed by the First Appellate Court. All questions of law are answered in the affirmative and against the appellant. The Regular Second Appeal is dismissed with costs.
Sd/-
M.A.ABDUL HAKHIM JUDGE jma