Kerala High Court
Jayachandran vs R.Vijayaleskhmi Amma on 7 August, 2025
RFA 503/2012
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2025:KER:59104
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
RFA NO. 503 OF 2012
OS NO.250 OF 2006 OF SUB COURT, MAVELIKKARA
APPELLANT/DEFENDANT
JAYACHANDRAN, THUNDIYIL KIZHAKKATHIL,
VALATHUNKALCHERI, IRAVIPURAM VILLAGE, KOLLAM
DISTRICT.
BY ADVS.
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SMT.NAVA VARGHESE
RESPONDENTS/PLAINTIFFS
1 R.VIJAYALESKHMI AMMA
W/O G. HARIKRISHNAN, THARAYIL VELIKKATHU, CHINGOLI
P.O., ALAPPUZHA DISTRICT:690 532.
2 G.HARIKRISHNAN, THARAYIL VELIKKATHU, CHINGOLI
P.O., ALAPPUZHA DISTRICT:690 532.(REPRESENTED BY
1ST PLAINTIFF.
BY ADVS.
SRI.B.BIPIN
SRI.R.REJI
SHRI.M.V.THAMBAN
SMT.THARA THAMBAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY
HEARD ON 18.7.2025, THE COURT ON 07.08.2025 DELIVERED
THE FOLLOWING:
RFA 503/2012
2
2025:KER:59104
C.R.
JUDGMENT
Dated : 7th August, 2025 The defendant in OS 250/2006 on the file of the Subordinate Judge's Court, Mavelikkara, is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)
2. The 1st plaintiff is the wife of the 2nd plaintiff. The 1st plaintiff filed the suit on behalf of the 2nd plaintiff as his next friend on the ground that he is of unsound mind. The suit is for declaration and consequential injunction. The plaint schedule properties belong to the 2nd plaintiff which he obtained as per Ext.A3 partition deed No.1373/1997. As per the plaint averments, the 2 nd plaintiff is suffering from unsoundness of mind since 15.9.1992. He was treated in different hospitals such as Mental Health Centre, Thiruvananthapuram, Medical College hospital, Alappuzha, Nakkada hospital, Ramanchira, Thiruvalla and St.Gregorious hospital, Parumala. The 2nd plaintiff's parents died in the year 1992 and 1994 respectively and their death aggravated his mental condition. Thereafter his condition became worse and he became violent towards the 1 st plaintiff on several occasions. Because of his mental condition, he could not even show love and affection towards his wife and children and as a result of which they left the 2 nd plaintiff and started residing at her paternal home. Taking advantage of the illness of the 2nd plaintiff and the absence of the 1 st plaintiff along with him, the defendant colluded with others and fraudulently created Ext.A5(B7) sale deed No.1146/1999 RFA 503/2012 3 2025:KER:59104 of Keerikkad Sub Registry in respect of plaint B scheduled property. The property situated by the side of Harippad - Kayamkulam road. The total consideration for the entire 35 cents of plaint schedule property shown in the document was Rs.35,000/-. Though the said property is situated within the limits of Cheppad Sub Registrar office, the document was registered at Keerikkad Sub Registrar's office (SRO). Though 2.02 Ares of land comprised in Keerikkad SRO was shown as security property, the said SRO had no jurisdiction to execute the above sale deed. The Sub Registrar, Keerikkad, has not conducted proper enquiry before permitting registration of the sale deed. The 1st plaintiff filed a suit as OS.456/1999 before the Munsiff's Court, Kayamkulam for maintenance for herself and children and obtained an order of attachment of the plaint A scheduled property with the intention to secure the said property from alienation. Alleging that the defendant is taking hasty steps to alienate the 'B' schedule property, she preferred the present suit seeking declaration that Ext.A5 sale deed No.1146/1999 of Keerikkad Sub Registry executed by the 2nd plaintiff in favour of the defendant is null and void and also for a consequential injunction against the defendant.
3. The defendant filed a written statement denying the averments in the plaint and contending that the 2nd plaintiff was not suffering from any mental illness and also that he had executed the sale deed after receiving valid consideration. It was also contended that, in the family partition the 2 nd plaintiff joined as a party and further contended that the 1 st plaintiff herself filed a suit RFA 503/2012 4 2025:KER:59104 against the 2nd plaintiff in his personal capacity. Therefore, according to the defendant, there is no merit in the argument that the 2 nd plaintiff was suffering from any kind of mental illness. Therefore, he prayed for dismissing the suit.
4. The trial court framed five issues. The evidence in the case consists of the oral testimonies of PWs1 to 6, DW1, Exts.A1 to A7, B1 to B8 and X1 series. After appreciating the evidence on record, the trial court decreed the suit, set aside Ext.A5 sale deed, decreed the 2nd plaintiff's title over the plaint B schedule property and also restrained the defendant from executing any document in respect of plaint 'B' scheduled property. Being aggrieved by the above judgment and decree of the trial court, the defendant preferred this appeal raising various grounds.
5. Now the points that arise for consideration are the following :
i) Whether sale deed No.1146/1999 of Keerikkad sub registry was executed by the 2nd plaintiff when he was of unsound mind?
ii) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal ?
6. Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel for the appellant and Sri.R.Reji, the learned counsel for the respondents/plaintiffs.
7. The points :- The plaint 'A' schedule property consisting of 25.67 ares of land and the residential building was obtained by the 2nd plaintiff as per Ext.A3 RFA 503/2012 5 2025:KER:59104 partition deed. The subject matter in dispute in this case is the plaint 'B' schedule property, which is part of the plaint 'A' schedule having an extent of 14.16 ares, excluding the residential building. Ext.A5(B7) is the sale deed No.1146/1999 of SRO, Keerikkad dated 19.5.1999 executed by the 2 nd plaintiff in favour of the defendant. The case of the plaintiffs is that at the time of executing Ext.B7 sale deed, the 2nd plaintiff was suffering from mental illness, incapable of understanding the nature and consequences of his deeds and as such Ext.A5(B7) sale deed is null and void. On the other hand, according to the defendant, the 2 nd plaintiff was not suffering from any such mental ailments and according to him, Ext.B7 is a valid document executed by the 2nd plaintiff after receiving valid consideration.
8. In support of the argument that the 2 nd plaintiff was suffering from mental illness, the learned counsel for the plaintiffs invited my attention to Ext.A1 series, A2, A4, A6 and A7 documents as well as the evidence of PWs1 and 3 to 6. On the other hand, the learned counsel for the appellant would argue that on different occasions, the 2nd plaintiff had executed other documents and other suits were also instituted against the 2nd plaintiff in his personal capacity. He has also relied upon Ext.X1 case sheet issued from Mental Health Centre, Thiruvananthapuram to substantiate his contention that during the period when Ext.B7 sale deed was executed, the petitioner was in a sound disposing state of mind.
9. PW5 was the Superintendent, Mental Health Centre and Psychiatrist RFA 503/2012 6 2025:KER:59104 who produced the Ext.X1 case sheet in respect of the treatment given to the 2 nd plaintiff. From the evidence of PW5 and from Ext.X1 series it is revealed that at first, the 2nd plaintiff was treated in the said hospital as an inpatient from 7.8.1996 to 12.12.1996. Thereafter, he was treated as an outpatient in the said hospital on 15.1.1997, 7.2.1997, 18.4.1997, 20.8.1997 and 23.1.1998. According to PW5, after 23.1.1998, the 2nd plaintiff was admitted in the Mental Health Centre only on 10.5.2001 and the last follow up treatment given was on 5.9.2011. According to PW5, the 2nd plaintiff was suffering from bipolar mood disorder which is a severe mental illness and it is a variation of the emotion of the patient. However, during the cross-examination he clarified that he cannot state the mental condition of the patient as on 19.5.1999, while executing Ext.B7 sale deed. He further deposed during cross-examination that during intervals of illness the patient can behave normally.
10. PW6 was the RMO of Alappuzha Medical College hospital who proved Ext.A7 medical records relating to the treatment of 2nd plaintiff and Exts.A8 and A9 are the prescriptions issued from the Psychiatric department of the hospital. As per the records the 2nd plaintiff was treated in the said hospital on 23.7.2003 and then on 27.7.2006. As per Ext.A9 the patient had only mild disability. From Ext.X1 series case sheet, it can also be seen that during the period 2002-2003, he was treated in the Mental Health Centre, Thiruvananthapuram, and on 12.12.2002, the 2nd plaintiff was found fit for discharge and also fit to stand trial. Again, in June RFA 503/2012 7 2025:KER:59104 2003, the doctor recorded that the 2nd plaintiff was fit for discharge and also fit to stand trial in a criminal case registered against him. In Ext.A4 certificate dated 10.8.2006 issued from the Mental Health Centre, Thiruvananthapuram, it is stated that the 2nd plaintiff was suffering from bipolar mood disorder and that it amounts to more than 40% disability. In the Ext.A6 certificate issued by the Medical Board on 19.11.2007 it is stated that the 2nd plaintiff is unable to earn his living.
11. Relying upon Exts.X1,A7, A8 and A9 and also the evidence of PWs5 and 6, the learned counsel for the appellant would argue that, even as per the medical records, the 2nd plaintiff had mental illness only intermittently and not continuously. He would argue that in this case there is no evidence to show that during the period between 23.1.1998 and 10.5.2001, the 2nd plaintiff was suffering from any mental illness. It is true that, as per the medical records produced in this case, after the 2nd plaintiff was treated in the Mental Health Centre, Thiruvananthapuram on 23.1.1998, he was admitted in the hospital only on 10.5.2001. In other words, there is no evidence in this case to show that in between the period from 23.1.1998 and 10.5.2001, the 2 nd plaintiff was treated in any hospital, for mental illness.
12. The learned counsel for the appellant relying upon Section 12 of the Indian Contract Act would argue that even patients suffering from mental illness occasionally can enter into contracts during the period in which he was not suffering from any such ailments. Section 12 of the Indian Contract Act reads as RFA 503/2012 8 2025:KER:59104 follows :-
12. What is a sound mind for the purposes of contracting.--
A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
(a) A patient in a lunatic asylum, who is, at intervals, of sound mind, may contract during those intervals.
(b) A sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts.
13. From the above provision it is clear that even a person suffering from unsoundness of mind can make a contract, as and when he is of sound mind. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. Therefore, now the question to be considered is whether the 2 nd plaintiff was of sound mind when he executed Ext.A5(B7) sale deed.
14. One of the circumstances relied upon by the learned counsel for the appellant is the execution of Ext.A3 partition deed by the 2 nd plaintiff along with RFA 503/2012 9 2025:KER:59104 his siblings and failure of the plaintiffs to challenge its execution. As argued by the learned counsel for the appellant, on 23.6.1997 the 2 nd plaintiff along with his sisters executed Ext.A3 partition deed No.1373/1997. It was on the basis of the said partition deed, the 2nd plaintiff obtained title over the plaint 'A' schedule property consisting of 25.67 Ares. It is interesting to note that in the Ext.A3 partition deed nobody represented the 2nd plaintiff and he had independently participated and signed in the Ext.A3 partition deed. Though in the Ext.A3 partition deed there was nobody to represent the 2 nd plaintiff, so far the plaintiffs have not challenged the validity of Ext.A3. Though PW1 claimed that Ext.A3 partition deed executed by the 2nd plaintiff along with his sister was challenged by filing a suit, no such documents were produced. Since, any such documents were produced to prove that she had challenged the execution of Ext.A3, an adverse inference is liable to be drawn to the effect that no such challenge was made against Ext.A3. In the above circumstances, it is to be presumed that the plaintiffs admit that at the time of executing Ext.A3 on 23.6.1997, the 2 nd plaintiff was of sound mind.
15. Another circumstances relied upon by the learned counsel for the appellant is the suit O.S.456 of 1999 filed against the 2nd plaintiff herein. Ext.B3 is the certified copy of the plaint in OS 456/1999 on the file of the Munsiff's Court, Kayamkulam filed by the 1st plaintiff herein and her minor children on 12.8.1999 against the 2nd plaintiff seeking maintenance. In the above suit also, the 2 nd plaintiff RFA 503/2012 10 2025:KER:59104 was sued in his personal capacity and in that suit the 1 st plaintiff herein had no case that the 2nd plaintiff was suffering from any mental illness. The above conduct of the 1st plaintiff in filing Ext.B3 suit against the 2nd plaintiff, further goes to show that the plaintiffs admit that at the time of filing Ext.B3 suit on 12.8.1999, the 2nd plaintiff was of sound mind.
16. Filing of the suit O.S.222 of 2001 is yet another circumstance brought to my attention by the learned counsel for the appellant. Ext.B4 is the certified copy of the plaint in OS. 222/2001 on the file of the Munsiff's Court, Haripad filed by the defendant herein against plaintiffs 1 and 2 herein and another person. In the above suit also, the 2 nd plaintiff was independently sued, without any court guardian. The plaint schedule property in Ext.B4 suit is the plaint 'B' schedule property herein. In Ext.B4 suit also the 1st plaintiff herein had not taken a contention that the 2nd plaintiff was suffering from unsoundness of mind.
17. The suit OS 354/2001 filed by one Sudhakaran against the 2 nd plaintiff and the claim petition filed by the 1st plaintiff herein in that suit were two other circumstances highlighted by the learned counsel for the appellant. Ext.B1 is the certified copy of the plaint in OS 354/2001 on the file of the Munsiff's Court, Haripad above referred. Ext.B2 is the certified copy of the claim petition filed by the 1st plaintiff herein in Ext.B1 suit. In Ext.B2 claim petition, the 1st plaintiff herein had no case that the 2nd plaintiff was suffering from unsoundness of mind. Therefore, the plaintiffs are indirectly admitting that during the period from RFA 503/2012 11 2025:KER:59104 1.11.2001, the date of filing Ext.B1 suit, till 27.11.2004, the date of Ext.B2 claim petition also, the 2nd plaintiff was of sound mind.
18. The most interesting aspect is that, in Ext.B2 claim petition, the property already sold to the defendant as per Ext,A5 was expressly excluded by the 1st plaintiff. In the property description in Ext.B2 claim petition it was specifically admitted that, out of 25.67 ares of property obtained by the 2nd plaintiff, 14.16 ares was already sold and the remaining 11.51 ares alone was stated to be belonging to the 2nd plaintiff. Therefore, in Ext.B2 claim petition, the 1 st plaintiff specifically admits the execution of Ext.B7 sale deed executed by the 2nd plaintiff in favour of the defendant. Ext.B2 claim petition was filed by her on 27.11.2004 while the present suit was filed only on 19.12.2006, more than two years after the filing of Ext.B2, recognising the execution of Ext.B7 in favour of the defendant. For the said delay of more than two years after filing Ext.B2, there is no explanation.
19. Existence of a prohibitory injunction against the plaintiffs herein and hence the necessity of a prayer for recovery of possession for the maintainability of the suit were also highlighted by the learned counsel for the appellant. Ext.B5 and B6 are the certified copy of the judgment and decree in O.S. 222/2001. As per the above judgment and decree, the plaintiffs herein have been restrained from trespassing into the plaint scheduled property therein, which is the plaint B scheduled property herein and also from committing mischief in the said property. In the light of the above injunction against plaintiffs 1 and 2 herein, the learned RFA 503/2012 12 2025:KER:59104 counsel for the appellant would argue that in the absence of a prayer for recovery of possession, a simple suit for declaration will not lie.
20. On the other hand, the learned counsel for the plaintiffs would argue that the above decree was an ex parte decree and that the decree passed against a person suffering from mental illness is a nullity and hence it will not bind the 2nd plaintiff. Relying upon the decision of a Full Bench of this Court in Pankajaksha kurup v. Fathima, 1998 KHC 122, the learned counsel would argue that a decree passed against a minor without a guardian is a nullity and void and not merely voidable. It was further argued that the above dictum applies in the case of a lunatic also in view of Order XXXII Rule 15 CPC. Therefore, according to him, Ext.A5 executed by the 2nd plaintiff is to be treated as a void document.
21. Even if it is assumed that the 2nd plaintiff did not contest the above suit as he was suffering from unsoundness of mind, there is no such justification for the 1st plaintiff. If there was any bonafides on the part of the 1 st plaintiff in her contention that the 2nd plaintiff was suffering from unsoundness of mind, she could have appeared in that suit and informed the court about the same. Failure to take such a contention in Ext.B4 suit and conceding Ext.B5 and B6 judgment and decree in O.S. 222/2001 shows lack of bonafides on her part. So far, the plaintiffs have not challenged the above decree and judgment and as such it became final. In the above circumstance, Ext.B5 and B6 judgment and decree in O.S. 222/2001 against the plaintiffs could not be simply ignored as submitted by the learned RFA 503/2012 13 2025:KER:59104 counsel, but it is valid and binding on them.
22. Section 34 of the Specific Relief Act, 1963, reads as follows :-
34. Discretion of court as to declaration of status or right.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
23. As per the above provision, where the plaintiff was able to seek further relief than a mere declaration, the court shall not make any such declaration. In the decision in Sundarangan and Another vs.L.Joys and Others, 2017 KHC 932, a learned Single Judge of this Court held in paragraph 15 as follows :
"When recovery of possession of any portion of the plaint schedule property found in the possession of the defendants has not been sought for, no declaration of possession can be granted within the meaning of the proviso to Section 34 of the Specific Relief Act.
24. In the decision in Raveendran Nair v. Bhaskaran (Died), 2024 RFA 503/2012 14 2025:KER:59104 KHC 34, another Single Bench of this Court held in paragraph 15 as follows :-
"Thus it is the trite law in terms of S.34 of the Specific Relief Act that when there is a Suit for declaration of title in respect of a property, which is not in possession of the plaintiff, the Suit must be one for declaration of title and recovery of possession. If the relief of recovery of possession is omitted to be asked for, in view of the proviso to S.34 of the Specific Relief Act, the Suit must fail for the sole reason. In such Suits, the Court is powerless to grant either the relief of declaration of title or recovery of possession or both reliefs in any manner."
25. In the decision in Ram Saran v. Ganga Devi, (1973) 2 SCC 60, the Apex Court also held in a similar situation that in the absence of a prayer for recovery of possession, a suit filed for declaration alone is not maintainable. In the instant case, as revealed from Exts.B5 and B6 judgment and decree, the defendant is in exclusive possession of the plaint B schedule property and the plaintiffs were even restrained by a permanent prohibitory injunction from trespassing into the said property. Since the plaintiffs have not challenged Exts.B5 and B6 judgment and decree, they became final. So long as the above judgment and decree are in force, they could not lawfully enter the plaint B scheduled property. In the above circumstance, a prayer for recovery of possession of plaint 'B' schedule property was highly necessary in this case. Even then, the plaintiffs have not claimed the relief of recovery of possession and as such, in the light of Section 34 of the Specific Relief Act, the present suit filed for declaration alone is not maintainable also.
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26. With regard to the burden of proof in a case in which a document is challenged on the ground that the executant was unsound, a Division Bench of this Court in Mariam v. Varghese, 1965 KLT 692 held in paragraph 7 as follows :-
"When a transaction is impeached on the ground that the executant was a man of unsound mind, the initial onus lies on the person who sets up the plea that the executant was of unsound mind. If there is sufficient evidence to prove that the person has been adjudged under the Lunacy Act to have been a lunatic or if there is other sufficient evidence to show that a person had at a certain stage been of unsound mind, the burden shifts to the person who alleges his sanity. The mere proof of a solitary fact that on the day when the impeached conveyance was being executed the executant did not show any signs of insanity would not be sufficient to demonstrate that the person had been acting as a normal man during a lucid interval. The evidence in the case has to be considered in the light of these principles. "
27. Relying upon various decisions including the decision in Mariam (supra), a learned Single Judge of this Court in the decision in Kunhalima v. Mahammed , 2024 KLT OnLine 1616, held that there is always a presumption in law in favour of sanity. Since there is such a presumption, a person who alleges unsoundness of mind has to prove it sufficiently to satisfy the test. Thereafter, in paragraph 14 the learned Single Judge held that :
"14. Once it is established that a person is of unsound mind, the onus shifts to the person, who alleges that the document was executed during a lucid interval to prove the same. In other words, if it is shown that a person is of unsound mind usually, the burden of proving that at the RFA 503/2012 16 2025:KER:59104 time of contract, he was of sound mind, lies on the person who affirms it...."
28. A learned Single Judge of this Court in the decision in Zenith and Another v. Sakkir Hussain and Others, 2015 (4) KHC 327, in paragraph 7 held as follows :-
".....It is thus clear that even a person who is usually of sound mind, but occasionally of unsound mind, can enter into a contract when he is of sound mind. Previous or subsequent mental disorders may not be material except to create a suspicion as to the likelihood of such disorder. The question whether a contract is invalid due to unsoundness of mind depends on the fact as to whether the person was capable of understanding the contract and of forming a rational judgment as to its effect upon his interests."
29. From the above decisions it is clear that there is always a presumption in law in favour of sanity. Since there is such a presumption, the burden is on the person who alleges unsoundness of mind to prove the same. At the same time, once it is established that a person is of unsound mind, the onus shifts to the person, who alleges that the document was executed during the time when he was of sound mind.
30. The main ground raised by the learned counsel for the respondents/plaintiffs is that though the plaint scheduled property situated within the limits of Cheppad Sub Registry, the document was executed in Keerikkad, in violation of Section 28 of the Registration Act. It is true that from the evidence of RFA 503/2012 17 2025:KER:59104 PW1, the Village Officer, it is revealed that the 2nd plaintiff had no property in Keerikkad village. Therefore, it is true that in the instant case in respect of registration of Ext.B7 sale deed there was violation of Section 28 of the Registration Act.
31. The learned counsel for the respondents/plaintiffs further argued that the scheduled property was sold for a grossly inadequate price of Rs.1,000/- per cent. According to the learned counsel, it was a strong circumstance probabilising the case of the plaintiffs that the 2nd plaintiff was not capable of taking rational decision at the time of execution of Ext.B7. It is true that in Ext.B7 the consideration shown is only Rs.35,000/- for an extent of 35 cents of property. The specific case of the defendant is that though the consideration shown in the document is only 35,000/- the actual consideration paid was Rs.3,00,000/-. During the cross-examination of the 1st plaintiff as PW2, when she was asked about the actual consideration paid by the defendant to the 2nd plaintiff, she pleaded ignorance. At the same time, she deposed that she had never asked the 2 nd plaintiff about the price actually received while executing Ext.B7. According to her, the 2 nd plaintiff is not even aware of the present suit. Since PW2 admitted that she had not asked the 2nd plaintiff about the actual consideration received from the defendant, in spite of the contention that a sum of Rs.3,00,000/- was the actual consideration paid assumes significance in this context. Though in the plaint it is contended that the scheduled property situated by the side of Harippad - Kayamkulam road, it RFA 503/2012 18 2025:KER:59104 appears to be not correct. As per Ext.A3 and A5, there is only a pathway on the east and on all the three sides properties belonging to other persons are its boundaries.
32. During the cross-examination PW1 admitted that immediately before the execution of the document the scheduled property was measured by some persons. She also deposed that she was not present at the time of measurement of the said property. Since the 1st plaintiff was aware of the measurement of the property by the purchasers before the execution of Ext.B7 and she also recognized Ext.B7 in Ext.B2 claim petition and has not taken any steps to challenge Ext.B7 even after Ext.B2 claim petition, it is to be held that the delay of about 6 years in filing the suit is not properly explained.
33. It is true that PW4, the former president of Chingoli grama panchayat deposed that once she had taken the 2nd plaintiff to the Mental Health Centre, Thiruvananthapuram, as he turned violent due to mental illness. However, in the light of the evidence of PWs5 and 6, the Doctors who had examined the 2 nd plaintiff, the evidence of PW4 has not much relevance. Even from the evidence of PWs5 and 6 it is revealed that the 2 nd plaintiff was brought before the hospital and treated for mood disorder, only intermittently. From their evidence it is revealed that even in the case of a person suffering from mood disorder, there will be period in which he behaves normally. Even in Ext.X1 series case sheet produced from the Mental Health Centre, Thiruvananthapuram, it is stated that during the period of RFA 503/2012 19 2025:KER:59104 treatment he became fit for discharge and fit for facing trial on 12.12.2002 and again in June-2003, in a criminal case registered against him.
34. Though from the evidence of PWs5 and 6 and from the medical evidence including Ext.X1 series, it is revealed that the 2 nd plaintiff was suffering from mental illness, it was not a continuous one, but intermittent. Though originally he was treated as an inpatient in the mental Health Centre, Thiruvananthapuram, from 7.8.1996 to 12.12.1996, thereafter he was treated only as an outpatient on 15.1.1997, 7.2.1997, 18.4.1997, 20.8.1997 and 12.1.1998. Thereafter he was admitted in the hospital only on 10.5.2001. There is absolutely no evidence to show that he was under any kind of treatment for mental illness between 23.1.1998 and 10.5.2001.
35. The disputed document namely Ext.A5(B7) was executed on 19.5.1999. About 2 years before the execution of Ext.A5, on 23.6.1997 the 2 nd plaintiff executed Ext.A3 partition deed along with his siblings. The 1st plaintiff herself filed Ext.B3 suit against the 2nd plaintiff on 12.8.1999, less than 3 months after the execution of Ext.A5. Ext.B1 suit was filed against him on 1.11.2001. Ext.B2 claim petition was filed by the 1 st plaintiff against the 2nd plaintiff on 27.11.2004. Ext.B4 suit was filed by the defendant herein on 28.6.2001 against plaintiffs 1 and 2 herein. In none of the above proceedings, the 1 st plaintiff had a case that the 2nd plaintiff was suffering from unsoundness of mind. At the time of evidence, it is also revealed that about one month before the execution of Ext.B7, a RFA 503/2012 20 2025:KER:59104 child was born to the plaintiffs. The validity of Ext.B7 executed on 19.5.1999, about 3 months before filing Ext.B3 suit is to be evaluated in the above context. Now the crucial question to be considered is whether at the time of executing Ext.A5 sale deed the 2nd plaintiff was capable of understanding the nature of the said document and of forming a rational judgment as to its effect upon his interests.
36. In the decision in Sona Bala Bora and Others v. Jyotirindra Bhatacharjee, 2005 (4) SCC 501, the alleged unsound person has assigned all his properties including all the three residential buildings and even attempted to expel his family members forcefully from the above residence. He also filed cases against them without any basis. In the above context, while analysing the meaning of the Illustration to Section 12 of the Indian Contract Act, with regard to the burden of proof and shifting of the burden, the Apex Court held in paragraph 25 as follows:
"No doubt the burden to prove or establish at least on a balance of probability that Bhogirath's action in executing the sale deed in favour of the respondent was the outcome of an unsound mind was on the appellants. But unrebutted evidence of an unnatural and inexplicable animosity to his wife and children as well as of an unnatural and inexplicable fixation on selling of all his properties probabilises that the sale was effected by when Bhogirath was incapable of rational behaviour.
This was sufficient to discharge the appellants' burden. The onus then RFA 503/2012 21 2025:KER:59104 shifted to the respondent to adduce evidence either to show that the ostensibly irrational conduct of Bhogirath had a rational explanation or that the conveyance was executed by Bhogirath in a lucid interval....."
37. Therefore, it can be seen that, not only from the medical evidence, but from the unreasonable and irrational conduct and behavior also, a person's mental condition could be established. If he is capable of judging the consequence of his acts, he is of sound mind. On a perusal of Ext.B7 it can be seen that though at the time of executing Ext.B7, the 2nd plaintiff had 25.67 Ares of property along with a residential building, he had sold only 14.16 ares, excluding the residential building. The conduct of the 2nd plaintiff in selling only a portion of the property obtained by him as per Ext.A3 and setting apart the remaining portion including the residence for his own use is a crucial factor leading to his mental condition and the ability to think rationally and to decide the nature and consequence of his acts.
38. In this context it is to be noted that, at the time of executing Ext.A5 his wife and children were not with him. Even then, he has sold only a portion of his property and the remaining portion including the residential building was excluded and reserved for the use of himself and his family. From the above conduct of the 2nd plaintiff itself it can be seen that, at the time of executing the said document, he was very much conscious and aware of the nature and consequences of the document executed by him. Only because he was very much sensible, rational and capable of understanding the nature of the document RFA 503/2012 22 2025:KER:59104 executed by him and its consequence, he willfully excluded a portion of the property including the residential building from Ext.B7. Moreover, as I have already noted above, in this case there is absolutely no evidence to prove that during the period after 23.1.1998 and before 10.5.2001, he was suffering from any such mental illness or that any treatment was given to him during the said period. Further, in Ext.B3 suit the 1st plaintiff had recognized and accepted Ext.B7, and hence, now she cannot turn around and say that Ext.B7 executed by the 2 nd plaintiff was without knowing and understanding the nature and consequence of the said document.
39. Therefore, from the evidence on record, it is evident that the 2nd plaintiff executed Ext.B7 while he was of sound mind, capable of taking rational decisions and understanding the nature of the document executed by him and of forming a rational judgment as to its effect upon his interests. Therefore, it is to be held that, Ext.B7 sale deed executed by the 2 nd plaintiff in favour of the defendant is a validly executed sale deed binding on the 2nd plaintiff and as such it cannot be set aside as prayed for in the plaint. In the above circumstances, the trial court was not justified in holding that Ext.B7 is null and void. In other words, this appeal is liable to be allowed, the impugned judgment and decree of the trial court is liable to be set aside and the suit, OS. 250/2006, is liable to be dismissed. Points answered accordingly.
40. In the result, the appeal stands allowed. The impugned judgment and RFA 503/2012 23 2025:KER:59104 decree of the trial court is set aside. OS. 250/2006 is dismissed. Considering the facts, I order no costs.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge Mrcs/23.7.