Kerala High Court
Ivy Abraham vs Itty on 6 October, 2009
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 250 of 1999(Y)
1. IVY ABRAHAM
... Petitioner
Vs
1. ITTY
... Respondent
For Petitioner :SRI.T.P.KELU NAMBIAR (SR.)
For Respondent :SRI.R.RAMADAS
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/10/2009
O R D E R
HARUN-UL-RASHID, J. C.R
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A.S.Nos. 250& 251 of 1999
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Dated this the 20th day of November, 2009
JUDGMENT
The plaintiffs in O.S. Nos. 561/1994 and defendants 1 and 2 in O.S. No. 629/1994 on the file of the Principal Sub Judge, Kottayam, are the appellants in A.S. No.s 250 and 251 of 1999 respectively. These appeals arise out of a common judgment in the said suits. O.S No. 629/1994 was filed for a declaration that the sale deed No. 2625/1993 executed by the 1st plaintiff in favour of the 1st defendant is null and void and for a perpetual injunction to restrain the defendants 1 and 2 from trespassing upon the plaint schedule property or effecting any transfer relating to the property based on the above sale deed and for a decree of mandatory injunction directing the 2nd defendant to return the blank cheques and stamped papers delivered to him at the time of execution of the sale deed No. 2625/1993. The connected suit viz. O.S. 561/1994 is a suit filed by defendant 1 and 2 in O.S No.629/1994 for a perpetual injunction restraining the 1st plaintiff in O.S No. 629/1994 from trespassing upon the plaint schedule property or obstructing their possession and peaceful enjoyment of the same and from collecting the future rent of the building and to direct the 1st defendant (plaintiff in O.S. No. 629/1994) to pay Rs. 33,250/- with future interest at 6% per annum which he has already received from the tenant as rent amount. The court below jointly tried A.S. Nos. 250 & 251 of 1999 -2 both suits, evidence was recorded in O.S No. 629/1994 and a common judgment was passed. The court below decreed O.S. No. 629/1994. The sale deed No. 2625/1993 (Ext.B4) executed by the 1st plaintiff in favour of the 1st defendant is declared null and void and granted both prohibitory and mandatory injunction as prayed for; and dismissed O.S No. 561/1994 . The parties hereinafter are referred to as plaintiffs and defendants as arrayed in O.S. No. 629/1994 and the exhibits are stated hereinafter as produced and marked in O.S No. 629/1994.
2. The plaint schedule property in O.S. No. 629/1994 is 10 Cents of land and a building situated thereon . . The 2nd plaintiff is the father of the 1st plaintiff. The 1st plaintiff is the owner of the plaint schedule property and the building by virtue of a settlement deed No. 2588/1979 of S.R.O. , Kottayam executed by the 2nd plaintiff. It is averred in the plaint that the 1st plaintiff became an alcoholic sometime in 1990 and was continued to be so till July 1993. The 1st plaintiff was under treatment for alcoholic dependence and Hypomania at "Total Response to Alcohol and Drug Abuse" (TRADA) from 1991. The 1st plaintiff continued his treatment till July 1993 at "TRADA. It is further pleaded that though his alcoholic dependence was considerably reduced by treatment, his affective disorder persisted and he was continuing treatment with Dr.Radhakrishnan , C.K.N. Psychiatric Neuro Clinic, Changanassery for affective disorder and that though he recovered from affective disorder and unsoundness of mind in July 1994, he is still under treatment of Dr.Radhakrishnan. It is the plaintiffs' case that the 1st plaintiff started attending prayer meetings from June 1992 to escape from alcoholism . Prayers were conducted by A.S. Nos. 250 & 251 of 1999 -3 believers in residential houses. While so the 1st plaintiff got acquainted with the 2nd defendant and developed intimacy with him According to the plaintiffs the 1st plaintiff developed absolute confidence in 2nd defendant and the 2nd defendant was his "Guru" in all matters . Some time in July 1993 there was a proposal to purchase a Coffee estate having an extent of 181 acres in Coorg for Rs.67 = lakhs. A group was formed for purchase of the estate including the 1st plaintiff and 2nd defendant and the estate was proposed to be purchased in October 1993. The 1st plaintiff had no money to invest in estate deal and the 2nd defendant promised that he will provide the necessary finance of Rs. 10 lakhs which was the contribution of the 1st plaintiff, provided the 1st plaintiff executed a sale deed in respect of plaint schedule property in favour of the 1st defendant who is the wife of the 2nd defendant. It is further averred in the plaint that the 2nd defendant also undertake to cancel the said sale deed if he is not able to raise the finance as agreed by him. The 2nd defendant also procured three blank signed stamped papers and three signed cheque leaves from the 1st plaintiff as a security for raising the loan. Believing the words of the 2nd defendant, the 1st plaintiff executed the sale deed No. 2625/1993 dated 17.9.1993 in favour of the 1st defendant who is the wife of the 2nd defendant. No amount was paid to the 1st plaintiff on execution of the sale deed by the 1st defendant, though there is a recital of payment of 1,80,000/- nor was there any intention to pay the amount . According to the plaintiffs the plaint schedule property and the building thereon is worth Rs. 10 lakhs and further averred that the 1st plaintiff could not have executed a sale deed for 1,80,000/- relating to the plaint schedule A.S. Nos. 250 & 251 of 1999 -4 property but for the unsoundness of his mind due to affective disorder at the time of execution of the document. It is further stated in the plaint that the scheme for purchase of the estate did not fructify and therefore, the proposed amount of Rs. 10 lakhs payable by the 2nd defendant to the 1st plaintiff for the contribution to be made by him for the purchase of estate became unnecessary. By July 1994 the 1st plaintiff had practically recovered from his mental disorder and then only he realised the folly of executing the document in favour of the 1st defendant and therefore he approached the 2nd defendant for cancellation of the document. The 2nd defendant refused to cancel the said sale deed. According to the plaintiffs, the possession of the property had not been delivered as mentioned in the sale deed The main building in the property was in the possession of the 3rd defendant as a lessee and the godown is in the possession of Messrs. Thannickal Brothers. The keys of the building were not handed over to the 1st defendant as the possession of the building was with 2nd plaintiff and 3rd defendant. It is further alleged that the sale deed No.2625/1993 is abinitio void and as it was executed by the 1st plaintiff due to the unsoundness of mind and affective disorder, and therefore he was not capable of understanding the consequences of executing such a document and forming a rational judgment as to its effects upon his interest. It is also pleaded that defendants 1 and 2 had no means to pay Rs 1,80,000/- as recited in the said document, that though the sale deed was executed, the 2nd plaintiff continued to receive the rent from the 3rd defendant and from Thannickal Brothers, that there was a negotiation for settlement of the matter, that in the course of negotiation the 2nd defendant demanded a A.S. Nos. 250 & 251 of 1999 -5 sum of Rs. 2,70,000/- for cancelling the sale deed, that the 2nd plaintiff was not aware of the above dealings and the impugned sale deed had been executed without his knowledge or consent and that the 2nd defendant tried to trespass upon the plaint schedule property. on the basis of the above said facts OS No. 629/1994was filed for the reliefs mentioned in the 1st paragraph of this judgment.
3. The defendants in their joint written statement contended interalia that the sale deed is supported by consideration, that the allegations in the plaint regarding the alcoholism and mental weakness and infirmity are absolutely false, that the 1st defendant is in possession and enjoyment of the plaint schedule property, that the 1st plaintiff had never in alcoholic affection or in mental or physical weakness on account of it and he was not affected by any disorder. It is contended that the 1st plaintiff was capable of doing things properly understanding and evaluating his actions. The defendants also denied the plaint allegation to the effect that the 1st plaintiff fall under the influence of 2nd defendant and the 1st plaintiff treated him as "Guru". The sale deed executed by the 1st plaintiff in favour of the 1st defendant is perfectly legal and valid and the 1st defendant is the title holder of the plaint schedule property . The plaint allegation that the 2nd defendant influenced the 1st plaintiff and that the 2nd defendant agreed to arrange money for the share of the 1st plaintiff for purchasing the above said coffee estate and the consequent procurement of sale deed are denied. The defendants also refuted the allegation that the 2nd defendant had obtained signed paper and signed blank cheque from the 1st plaintiff. The defendants also pleaded that the sale deed A.S. Nos. 250 & 251 of 1999 -6 No.2625/1993 was duly executed and registered on receiving Rs. 1.80 lakhs by the 1st plaintiff as consideration and the possession of property had been delivered to the 1st defendant. According to them the 1st plaintiff executed the document fully knowing the consequence of such document and its effects on his interest and that there is nothing unconscionable in the transaction and further denied the plaint averment that the property is worth Rs.10 lakhs. The defendants also stated in the written statement that the 1st plaintiff undertook to evict the 3rd defendant from the plaint schedule building and hence the fact that the possession of the building was retained by the lessee was not mentioned in the sale deed and the defendants not attempted to collect rent from the 3rd defendant. In fact the 1st plaintiff agreed to collect the rent and agreed to pay it to the defendants The defendants also alleged that the original title deed was not handed over to the 1st defendant at the time of execution of the sale deed and that the defendants were made to believe by the 1st plaintiff that the original sale deed was irrecoverably lost.
4. The 3rd defendant filed a written statement stating that he is not a necessary party to the suit, that he got the building from the 1st plaintiff for a monthly rent of Rs. 3,500/- from 3.8.1993 onwards, that he is regularly paying rent to the 1st plaintiff and that since the title of the building is in dispute he did not pay the rent from 2.6.1994 It is also averred that he is ready to pay the rent to the original owner of the plaint schedule building.
5. The 1st defendant in O.S No. 629/1994 is the 1st plaintiff in O.S. No. 561/1994. The second defendant in O.S. No. 561/1994 is the A.S. Nos. 250 & 251 of 1999 -7 tenant who is the 3rd defendant in O.S No. 629/1994. O.S. No. 561/1994 was filed by defendants on the allegation that the defendants are trying to interfere with and obstruct the possession of the plaintiffs over the plaint schedule property and the building thereon and that the defendants have no right or possession over the plaint schedule property and the building thereon. They also prayed that the 1st defendant may be restrained by a decree of permanent injunction from trespassing upon the plaint schedule property, or obstructing the defendants' peaceful possession and enjoyment of the same and from collecting the future rent of the building and to direct the tenant to pay Rs. 33,250/- with future interest at 6% per annum.
6. The 1st defendant in O.S. No. 561/1994 filed written statement raising almost the same allegations raised in the plaint in O.S No.629/1994 as plaintiffs.
7. The 2nd defendant in O.S.No. 561/1994 also filed written statement adopting all the same contentions raised in O.S No. 624 of 1994 as 3rd defendant.
8. The evidence in these cases consists of the oral testimony of PWs 1 to 5, DWs 1 to 4, Exts. A1 to A10, B1 to B14(a) and Exts. X1 to X3.
9. The trial court framed necessary issues The main issues which arises for consideration are whether the sale deed No. 2625/1993 is a sham document not supported by consideration, whether the said document was brought into existence by exercise of fraud undue influence and misrepresentation, whether the 1st plaintiff was not in a sound state of mind to execute the said sale deed due to his affective A.S. Nos. 250 & 251 of 1999 -8 disorder and whether the said sale deed is liable to be declared as null and void and whether the plaintiffs are entitled to the decree of prohibitory and mandatory injunction as prayed for. In the connected suit i.e O.S. No. 561/1994 the issues that arises for consideration are whether the 1st defendant has got title over the plaint schedule property, whether the defendants are in possession of the plaint schedule property and whether the defendants are entitled to realise an amount of Rs. 33,250/- with interest.
10. The plaint schedule property in both suits is one and the same. The property is 10 of cents of land and a building with 9 rooms and an outhouse. The plaint schedule property is situated near to Kottayam town,facing a lane that deviates from the main road. The plaint schedule property originally belonged to the 2nd plaintiff and by assignment, his son, the 1st plaintiff became the owner of the property vide settlement deed No. 2588/1979. Ext.A1 is the settlement deed. The building situated in the plaint schedule property is occupied by Reshtra Deepika Limited , Kottayam on a rental arrangement from the 1st plaintiff The rent is Rs. 3,500./- per month There is a garage in the building below the ground level and it is being used as a godown by the Thannickal brothers for a monthly rent of Rs. 500/- The aforesaid facts are not in dispute. According to the plaintiffs the sale deed No. 2625/1993 produced, and marked as Ext.B4 ( the certified copy of the same was marked as Ext.A4) has not been acted upon and never intended to be acted upon and it is vitiated by fraud , undue influence and misrepresentation. The main averment in the plaint is that Ext.B4 sale deed was executed by the 1st plaintiff in favour of A.S. Nos. 250 & 251 of 1999 -9 the 1st defendant is null and void on the ground that the 1st plaintiff was mentally infirm and was not capable of protecting his interest and it is a sham document not supported by consideration. The defendants 1 and 2 resisted the suit and interalia contended that the 1st plaintiff was not mentally infirm and was in sound state of mind and understanding the things at the time of of execution of the Ext.B4 sale deed and that it was executed by receiving valid consideration of Rs. 1.80 lakhs.
11. The case of the plaintiffs is that the 1st plaintiff was suffering from affective disorder and unsoundness of mind due to alcoholism from 1990 onwards, that he was treated at TRADA an institution where alcoholic addicts are treated and he was suffering from affective disorder even after discharge from TRADA. After discharge the 1st plaintiff was under
the treatment of Dr.Radhakrishanan a Psychiatrist (PW4). As PW1 the plaintiff testified before the court that he was mentally infirm and was incapable of protecting his rights due to his affective disorder at the time of executing the sale deed in question and that the document has not been acted upon or intended to be acted upon. The 1st plaintiff tendered evidence in terms of the plaint.
12. The 2nd defendant was examined as DW1. He testified before the court that PW1 was in a sound state of mind and he was capable of understanding the consequences of the execution of Ext.A4 sale deed in favour of the 1st defendant and its effects on his rights and it is a valid document supported by consideration mentioned in it.
13. PW2 is the father of PW1. PW5 is the brother of PW2 and paternal uncle of PW1. PW4 is Dr. Radhakrishnan, a Psychiatrist. PW3 is A.S. Nos. 250 & 251 of 1999 -10 a relative of PWs 1 ,2 and 5. Exts .A2 and A3 are the medical certificates issued from TRADA in the name of PW1 and Ext.A5 series are the prescriptions issued by PW4 and Exts.A6 to A8 and Exts.X1 to X3 are the medical reports produced by PW4. The trial court relied on the evidence of PW1 and the oral testimony of PW4 who is the Psychiatrist. PW4 has categorically deposed that on 31.8.1993 he had advised PW1, his father and the wife of PW1 that PW1 should be kept away from all business. The trial court found that the said version of PW4 is corroborated by the evidence of PWs 2 and 5 . Relying on the testimony of PW4, the trial court held that PW1 was not capable of judging the consequences of the transactions entered by him during the said period. The trial court also held that no concrete evidence has been let in by defendants to show that PW1 was not mentally infirm and unsoundness of mind as a result of alcoholism at the time when he executed Ext.B4 sale deed in favour of the 1st defendant. In paragraph 14 of the judgment, the trial court concluded that from the evidence on record it is satisfactorily established that PW1 was a person suffering from mental disease during the period from 31.8.1993 to June 1994, that the evidence of PWs 1, 2, 4 and 5 and Exts.A2, A3, A5 to A8 and Exts.X1 to X3 conclusively proved that PW1 was an alcoholic and he was undergoing treatment for alcoholism and subsequently he was under the care of PW4 during 1992
-93.
14. It is the case of the 1st plaintiff that he had attended prayer meetings during 1992-93 at the residences of Leelamma and Mathew Varghese and that DW1 also used to attend prayer meetings. PW1 also A.S. Nos. 250 & 251 of 1999 -11 testified that Dw1 developed intimacy with him and that he was under
DW1's influence. DW1 also admitted that PW1 also attended the said prayer meetings but denied the case of the 1st plaintiff that he developed an intimacy with PW1 and PW1 was under his influence. The evidence of PW1 shows that some time in July 1993, there was a proposal to purchase an estate at Coorg worth Rs. 67.5 lakhs by a group of persons including PW1 and DW1 and his contribution for the proposed purchase was Rs. 10 lakhs. According to 1st plaintiff DW1 promised to raise money for him provided he executed a sale deed relating to the plaint schedule property in favour of his wife for the purpose of raising the amount from some financiers by creating an equitable mortgage of the property . The said allegation was denied by DW1. PW1 testified before the court that he believed the representation of DW1 and executed the sale deed in favour of his wife for the above said purpose without receiving any consideration. The 1st plaintiff had also deposed that he entrusted three blank signed cheques and three blank signed stamped papers with DW1 for the purpose of raising the loan. According to PW1, Ext.B4 sale deed was executed without any intention of transferring the property and the possession of the property continued with PW2 who was receiving the rent even after the execution of Ext.B4 sale deed. Relying on the oral evidence of PW1 and PW2 the trial court concluded that the possession of property has not been handed over, no consideration has been paid and there was no intention to transfer the property to the defendants and further held that the plaintiffs continued to receive the rent of the building even after the execution of Ext.B4 sale deed from the 3rd defendant/ tenant A.S. Nos. 250 & 251 of 1999 -12 and that the plaintiffs have also created a liability charged upon the plaint schedule property with the Syndicate Bank, Kottayam. The court below held that the conduct of the defendants in not applying for mutation or change of name of the plaintiff in the Municipal records in the name of the defendants immediately after the execution of the sale deed in favour of the 1st defendant shows that aforesaid facts and evidence supports the case of the plaintiffs
15. In paragraph 17, the trial court discussed the further allegation of the plaintiffs that the defendants had no means to pay Rs. 1.80 lakhs as recited in Ext.B4 sale deed. The plaintiffs argued before the trial court the the defendants have not explained and proved the source for raising Rs.1,80,000/- and therefore it cannot be held that Ext.B4 sale deed was supported by consideration. Besides the above versions, the court below relied on the version of DW2, the scribe, to the effect that he does not know the denomination of the notes given at the time of execution of the sale deed. Disbelieving the versions of the defendants the trial court concluded that there is absolutely no reliable evidence on record to show that the defendants had the capacity to pay Rs.1.80 lakhs on the date of execution of Ext.B4 sale deed and that they have not paid the sale consideration mentioned in the sale deed to PW1. In the above said circumstances the trial court held that Ext.B4 sale deed was not supported by consideration.
16. The trial court in paragraph 18 of the judgment, considered the point as to who is in possession of the property The trial court had taken note of the fact that admittedly the rent was being paid by the 3rd A.S. Nos. 250 & 251 of 1999 -13 defendant/tenant to the plaintiffs after the execution of the sale deed till Ext.B12 notice dated 8.7.1994 issued by the 1st defendant to the 3rd defendant/ tenant. The trial court observed that the failure of the defendant to demand the rent from 3rd defendant after the execution of Ext.B4 sale deed clearly shows that there was no intention to transfer the property. The trial court also held that the possession of building all alone continued with the plaintiffs and observed that it is difficult to believe that the property fetching a rent of Rs.4,000/- per month is alleged to have been offered to sell for Rs.1.80 lakhs situated in the heart of Kottayam town. Hence the court below arrived at a conclusion that a reasonable man cannot believed for a moment that 10 cents of land with a substantial residential building having 9 rooms situated in the heart of Kottayam town was sold for a consideration of 1.80 lakhs in the year 1993 and therefore the transaction is obviously unconscionable . The trial court also opined that if Ext.B4 sale deed is a genuine document and it was intended to be acted upon , the plaintiffs would not have discharged the liability outstanding with the South Indian Bank . It has come out in evidence that there was encumbrance relating to the plaint schedule property with South Indian Bank Limited which was cleared by the 2nd plaintiff during February 1994 and the plaintiffs got back Ext.A1 sale deed from the bank Another circumstance relied on, in support of the plaintiffs' case is that the defendants did not effect mutation of the property in the 1st defendant's name for a period of 4 months from the date of execution of the sale deed and they also did not apply for change of name in the registers maintained by the Municipality till July 1994 . For these reasons the trial court held that A.S. Nos. 250 & 251 of 1999 -14 Ext.B4 sale deed is a sham document and it had been executed without any intention to came into effect.
17. Next question considered by the court below is whether Ext.B4 sale deed was executed under fraud ,undue influence, and misrepresentation practised by DW1 on PW1. The court below in paragraph 20 concluded that the evidence on record clearly shows that PW1 was mentally infirm and incapable of protecting his right and was not capable of judging the consequences of the transaction entered into by him. The court held that it is satisfactorily established through the evidence of PW4 that PW1 was suffering from Hypomania and affective disorder from 31.8.1993. and continued to be so till 18.12.1993. The trial court believed the case set up by the plaintiffs that the 2nd defendant was in a position to influence the mind of PW1 to take undue advantage on the 1st plaintiff and that DW1 influenced PW1 to execute Ext.B4 sale deed and the sale deed was executed in the circumstances alleged in the plaint. The trial court also observed that no person will sell a property and a building fetching a monthly rent of Rs. 4,000/- for Rs. 1.80 lakhs unless he is acting under a delusion and he is not capable of judging the consequences of the documents executed by him, The learned sub judge in paragraph 20 of the judgment concluded that he has no hesitation to hold that Ext.B4 sale deed was executed as a result of undue influence exercised on PW1 by DW1 while PW1 was mentally unconscionable and weak in mind and was incapable of judging the consequences of the execution of the sale deed on account of his absolute faith in DW1 and therefore Ext.B4 sale is vitiated by fraud and undue influence.
A.S. Nos. 250 & 251 of 1999 -15
18. Lastly the court below considered the question as to whether Ext.B4 sale deed is void abinitio on account of unsoundness of mind of PW1 at the document was executed. The trial court relied on the evidence of PWs1, 2, and 4 and Exts A2, A3 and A5 series to conclude that PW1 was alcoholic and that he had been admitted in TRADA for treatment for alcohlism and was suffering from affective disorder and Hypomania from 31.8.1993 to 31.12.1993. The trial court also relied on Exts.A8, X1 and X2 to arrive at such a conclusion. Hence the trial court concluded that PW1 is a person of unsound mind and is incapable of judging the consequences of the transaction entered by him and hence Ext.B4 sale deed executed by PW1 during the period of unsoundness of mind is void ab initio.
19. The learned counsel for the defendants/appellants in A.S. No.251/1999 contended that there is absolutely no evidence on record to show that the 1st plaintiff was not in a sound state of mind at the time of execution of Ext.B4 and the trial court ought to have held that the same was executed by the 1st plaintiff in favour of the 1st defendant for valid consideration. According to the defendants/appellants there was no evidence on record to show that the 1st plaintiff was under the influence of alcohol or mentally infirm at the time of execution of the said sale deed. It is also contended that the trial court failed to take note of the fact that the 1st plaintiff is a business man and he was admittedly the Managing partner of M/s Full Bright Electricals from 1990 till December 1994, that he was managing the firm till December 1994, and that the 1st plaintiff executed the sale deed fully knowing and understanding the contents of the sale A.S. Nos. 250 & 251 of 1999 -16 deed. According to the defendants/appellants, the evidence on record positively shows that the case put forward by the plaintiffs that the 1st plaintiff was not in a sound state of mind at the time of execution of the document is only a story cooked up for the purpose of the case and that placing reliance by the trial court on the evidence of PWs 2 and PW5 who are the father and paternal uncle of PW1 is wrong. The learned counsel also pointed out that the trial court wrongly cast the burden of proof on the defendants/appellants by stating that the defendants/appellants failed to prove that the 1st plaintiff was in a sound state of mind at the time of execution of the sale deed. According to the learned counsel merely because the 1st plaintiff and the 2nd defendant used to attend the prayer meetings, no presumption can be drawn that the 2nd defendant is capable of dominating the will of the 1st plaintiff and that there is absolutely no pleadings or proof to substantiate the contention of undue influence and fraud He also drew this Court's attention to Section 114 of the evidence Act and contended that there is a presumption that the person executing the document had the full knowledge of the contents of the document unless it is proved that the executant is an illiterate person or a person disabled from executing the document, that there is a presumption that all formalities were properly and regularly done and that it is for the party challenging the execution of the particular document to plead and prove that fraud had been played on the Sub Registrar. The learned counsel also pleaded that there is absolutely no evidence on record to show that the plaint schedule property will fetch more than 1.80 lakhs.
A.S. Nos. 250 & 251 of 1999 -17
20. Section 12 of the Indian Contract Act deals with test of soundness of mind for the purpose of contract. It provides that soundness must exist at the time of making of the contract. The said section stipulates that when 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 effects upon his interests. Previous or subsequent mental disorder may not be material except to create a suspicion of the likelihood of such disorder. The question whether a contract is invalidated by unsoundness of mind does not depend merely on the belief or disbelief of the witnesses examined before the court but largely on the inference to be drawn from the evidence. The allegation of unsoundness of mind must be established by proof, showing that the person was incapable of understanding the business and of forming a rational judgment as to the effect of the transaction on his interests. Treatment of mental disorder under the law relating to mental health or a finding that the person was incapable of managing property or administering his affairs may constitute only prima facie evidence of mental disorder.
21. It is a fact that the 1st plaintiff is an alcoholic addict and he was admitted in TRADA ,a place where alcoholics are treated. It is not disputed that the 1st plaintiff was subsequently under treatment of PW4 , the Psychiatrist for affective disorder. PW1 deposed that the stamp papers are purchased by him and that he paid the fee to the scribe. He testified that the 2nd defendant had exerted undue influence over him after gaining confidence over him that the 2nd defendant compelled him to A.S. Nos. 250 & 251 of 1999 -18 execute Ext.B4 sale deed and he executed the sale deed without receiving consideration. PW1 again testified that he is the Managing Partner of"Full Bright Electricals" and that he was managing the business from 1983 till the business was stopped in March 1994. PW1 says that while he was managing the affairs of the business till 1993 he used to sign the balance sheet, the income tax statement etc and that he used to engage an auditor for representing him before the income-tax office. He also admitted that he went to the Sub-registrar's Office for registration of Ext.B4 sale deed, that the consideration for the sale deed is 1.80 lakhs, that Ext.B4 sale deed was read over to him and that he understood the contents of the sale deed and also realised the fact that the property is sold for a consideration of Rs. 1.80 lakhs. He also admitted that after understanding the contents of Ext.B4 sale deed he had put his signature in the presence of the Sub- registrar. A definite question was put to him as to whether anybody else compelled him to execute the sale deed he answered that he do not know whether the document executed is a sale deed. PW1 also deposed that at the time of execution of Ext.B4 sale deed the property was under a mortgage with the bank as security. PW1 also testified that he had actively participated in the negotiation for the purchase of coffee estate at Coorg, that at his instance other persons have also joined with him including DW1 for the purchase, that he held negotiations with the owner of the said estate, that he understood that the purchase of the estate is a profitable deal and that he was involved through out the negotiation. He also admitted that the negotiation and the decision to purchase the estate was during July 1993, that mutation and the Municipal assessments were A.S. Nos. 250 & 251 of 1999 -19 changed in the name of the 1st defendant, that he did not pay land tax or building tax after the execution of Ext.B4 sale deed and that he did not enquire as to who is paying the land tax after the execution of Ext.B4 sale deed. PW1 also testified that he did not sent any notice for cancellation of the sale deed after the negotiation of the purchase of the estate was failed but admitted that he did not complain before the police authorities about the foulplay in the execution of Ext.B4 sale deed.
22. PW2 is the father of PW1 He testified that his son was suffering from alcoholism and was under treatment at TRADA in 1993 and was also suffering from mental disorder and that he has no information regarding the execution of Ext.B4 sale deed. He admitted that after the execution of Ext.B4 sale deed he did not remit the building tax and land tax and that he never enquired who is making the payment. He also deposed that when he approached the revenue authorities to pay the building tax and rent tax they informed him that receipts would be given only in the name of 1st defendant. PW3 who claims to be one of the mediators, also supported the contentions of the plaintiffs to a certain extent.
23. PW4 is Dr. Radhakrishnan, the Psychiatrist. Ext.X1 is the case sheet in the name of the 1st plaintiff maintained in his clinic. As per Ext.X1, the treatment started from 2.8.1993. According to him, PW1 was in a hypomania stage, that the patient has euphoric affects and that he was not capable of judging the consequences of acts done by him. Ext.A2 is the medical certificate issued by PW4 and Ext.A5 is the prescription. He testified that on 9.9.1993 on examination of PW1 he noted that the plaintiff's sleep was improved and his appetite interaction bettered , that on A.S. Nos. 250 & 251 of 1999 -20 20.9.1993 when PW4 attended the 1st plaintiff, he was keeping sober and explained a lot about his business plans, that PW4 advised PW1's father and wife to restrict the business activities of PW1, that on 7.9.1993 the patient had euphoric infection and therefore he increased the dosage of medicine. During cross-examination PW4 testified that the 1st plaintiff was not capable of making any contracts during the treatment period and that as part of hypomania the patient will increase sociability. PW4 also deposed that hypomania is an unsound state of mind and all psychic patients will come under the term hypomania. To a definite question put to him as to whether during 7.9.1993 to 20.11.1993 the 1st plaintiff was capable of judging the transactions entered with others, PW4 answered that the patient may have difficulties. Another question put to PW4 that is it correct to say that the 1st plaintiff was discharged from TRADA after completely cured. PW4's answer was 'yes'. PW4 also stated that euphoria is a feeling of emotional and physical well-being, that it is not indicative of mental disorder always. He also admitted that even if a patient is affected with depression and mania there may be lucid intervals, that lucid intervals can be ascertained from the conduct, behaviour and activities of the patient. PW4 also admitted that during the period of lucid intervals the patient may be normal and he can take decision knowing its consequences To another question put to him as to whether the 1st plaintiff has a lucid interval between 7.9.1993 and 20.9.1993, PW4 answered that he cannot say whether there was any lucid intervals and usually he do not investigate the aspect of lucid intervals during the treatment period of the patient. PW4 also testified that if a person is affected with hypomania he can act A.S. Nos. 250 & 251 of 1999 -21 effectively and successfully.
24. The evidence of PW1, PW2 (the 1st plaintiff's father) PW5 (brother of PW2) and PW4 ( the psychiatrist) and the documentary evidence viz. Exts. A2 and A3 medical certificates, Exts. A5 to A8 and Ext.X1 to X3 reveals that PW1 was an alcoholic and he had undergone treatment for alcoholism and he was under the treatment of PW4 during 1993. The question is whether the evidence recorded and relied on by the trial court establishes that PW1 is a person suffering from mental disorder on the date of execution of Ext.B4 sale deed, or not.
25. PW1 is aged 35 during 1997. He is a B.sc degree holder. Ext.B4 sale deed was executed on 17.9.1993 During the said period PW1 was carrying on his business activities as the Managing Partner of "Full Bright Electricals " He has no case that he was not running the business due to any mental disorder. I have already referred to his own versions as PW1 testifying that that he was doing all activities in relation to his business such as financial transactions, filing of returns, engaging the auditor etc till the business was stopped in March 1994. PW1 admitted that he had taken initiative for the purchase of a coffee estate at Coorg with 10 persons including DW1. According to PW1, he, DW1 and others had planned to purchase the estate at Coorg and the decision was taken in July 1993. The estate is having an extent of 181 acres. The purchase price was fixed at 67.5 lakhs It is stated by PW1 that the sale deed was intended to be registered in October 1993. PW1 testified that on further enquiry he found that the vendor has no saleable interest in the property and therefore the said proposal was dropped in a few months. It is very A.S. Nos. 250 & 251 of 1999 -22 important to note that the sale deed was executed on 17.9.1993. He has no case that the said project was cancelled as on 17.9.1993. The 1st plaintiff's case is that the sale deed was executed for the purpose of raising his share of money for the purchase of estate at Coorg. It is not explained by PW1 that for what reason Ext.B4 sale deed was executed in favour of the 1st defendant who is the wife of the 2nd defendant, at the negotiation stage before a decision is taken as to whether the estate can be purchased or not. If PW1 wanted to raise Rs.10 lakhs, the amount can be raised by availing loan from the bank. It is not known the intention behind the execution of Ext.B4 document by PW1 in favour of DW1 for the purpose of raising Rs.10 lakhs. Moreover, the negotiation for purchase of the estate continued after September 1993. If that be so, there is no reason as to why the sale deed was executed without knowing the outcome of the negotiations. According to PW1 the negotiation fails and the project did not materialise, if that be the position nothing prevented the 1st plaintiff from demanding re-conveyance of the property and to get re- conveyance if the property was conveyed for the reasons stated by him. The suit was filed by the plaintiffs only after the suit for injunction as O.S. No. 561/1994 was filed by the vendee and on receiving notice in the said suit. From the evidence on record it has to be inferred that the story of negotiation for the purchase of an estate is an afterthought and is pleaded to suit the pleadings.
26. The 2nd defendant was examined as DW1. According to DW1 he got acquaintance with PW1 while PW1 attended the prayer meetings. It is not in evidence as to how many days both of them attended prayer A.S. Nos. 250 & 251 of 1999 -23 meetings together. DW1 is aged 39 during 1997 and PW1 is aged 35. DW1 has no contact with PW1 before he met PW1 at the prayer meeting held in one or two houses of the believers. Even though PW1 averred that the relationship grew and he treated DW1 as his "Guru" in almost all matters, DW1 denied the said averment. Both PW1 and DW1 are middle aged men. It is not revealed as to how the relationship grew to a stage of Guru-Disciple relationship. DW1 also denied the said allegations in the plaint. No materials are before the court below to accept the plaintiff's case that the relationship between PW1 and DW1 has reached such a stage and DW1 was capable of exerting undue influence on PW1. DW1 has stated that PW1 was not mentally firm and was of sound state of mind and was capable of understanding the consequences of execution of Ext.B4 sale deed and its effects on his rights and that Ext.B4 is a valid document supported by the consideration . From the facts proved it can be safely inferred that PW1 and DW1 are friends at the time of execution of Ext.B4 sale deed.
27. DW2 is M.K. Gopidas who is the scribe of Ext.B4 sale deed . He testified that before the preparation of Ext.B4 sale deed the document was read over to PW1, that all the details necessary for the preparation of the sale deed was furnished by PW1, that he behaved like a normal person, that he did notice any dysfunction or difficulty in PW1 and PW1 receiving the sale consideration from DW1. DW2 also deposed that as scribe he was having 22 years of experience. He testified that before the preparation of original of Ext.B4, a draft sale deed was prepared. He also testified that PW1 said that original title deed was lost, in that situation he A.S. Nos. 250 & 251 of 1999 -24 had prepared Ext.B4 sale deed after verifying the photocopy of the original title deed and said that he had applied and received the encumbrance certificate .
27. PW5 testified that PW1 is an alcoholic addict and has undergone treatment for mental disorder under PW4, that plaint schedule property is worth Rs. 10 lakhs in 1993, that the property is situated in the heart of Kottayam town and that Ext.A9 property and the plaint schedule property have equal importance. He also deposed that PW1 has started "Full Bright Electricals" and managed the business from 1990 till its closure. He supported the contention of the 1st plaintiff regarding the negotiation for the purchase of the coffee estate at Coorg and the subsequent events.
28. 3rd defendant is the tenant. He deposed that PW1 was conducting "Full Bright Electricals" in the plaint schedule property, that PW1 was running the said business and that the 3rd defendant was paying rent regularly by issuing cheques.
29. According to PW1 he was suffering from alcoholism and he was treated at TRADA de-addiction centre from 1991. In August 1993 he started treatment for affective disorder with PW4 Psychiatrist. Ext.X1 is the case sheet produced by PW4, shows that PW1's treatment started only from 2.8.1993. Ext.B4 sale deed was executed on 17.9.1993. The relevant portion of PW4's testimony is referred supra. PW4 testified that PW1 was not abnormal in his business activities. PW4 never advised PW1 not to involve in business transaction and that is also an indication that the affective disorder for which he was treated during the relevant period A.S. Nos. 250 & 251 of 1999 -25 does not prevent the 1st plaintiff from doing normal business activities. PW4 further stated that PW1 was capable of making contracts during the treatment period and he may have proper decision making capacity. To the specific question put to PW4 as to whether during 7.9.1993 to 20.11.1993 PW1 was capable of judging the transaction entered with others, he answered that the patient may have difficulties. PW4 also testified that the patient may be absolutely normal at lucid intervals and that whether a patient is normal or not can be ascertained from the conduct, behaviour and activities of the patient. Lastly, PW4 testified that even in cases a patient is affected with hypomania he can act effectively and successfully.
30. Going by the versions of PW4 , it cannot be said that PW1 was in a state of unsound mind on the date of execution of Ext.B4 sale deed. At the instance and instructions of PW1 draft sale deed was drafted, PW1 straightaway went to the scribe's office, read and understood the contents of Ext.B4 sale deed and then went to the Sub-Registrar's office. There again the Sub-registrar read over the contents of Ext.B4 sale deed and PW1 understood the contents. PW1 deposed that DW2, the scribe, had used to prepare documents for his family members. That is also an indication of the fact that the scribe is not a stranger to the 1st plaintiff, who was engaged in the preparation of Ext.B4 sale deed. The scribe himself as DW2 testified that the necessary details for the preparation of Ext.B4 was dictated by PW1 and the said testimony is also worthy to mention.
31. For the purpose of examining the validity of Ext.B4 sale deed the question to be examined is whether the person who executed the sale A.S. Nos. 250 & 251 of 1999 -26 deed is capable of understanding it and is of forming a rational judgment as to its effects upon his interest. There is no concrete evidence adduced by the 1st plaintiff or his witnesses which will go to show that PW1 was not in a state of sound mind on the date of execution of Ext.B4sale deed or on previous days or subsequent days of execution. At the same time the evidence on record clearly shows that PW1 was acting as a sound-minded person during the period of execution of Ext.B4 The oral evidence of PW4 also does not show that PW1 is a person of unsound mind. The evidence utmost shows that PW1 was suffering from some mental dysfunction. PW4 stated that he can carry on his business activities as a normal man. PW4 also testified that the disorder noticed by him is not a disorder of permanent nature. The disorder noticed is temporary and subsequently he is normal in all his activities. So the hypomania diognised by the Psychiatrist(PW4) is not enough to conclude that the 1st plaintiff is incapable of executing a document without understanding its contents and not capable of forming a rational judgment as to its effects upon his interest. The other circumstances which also leads to such a conclusion are that the plaintiff did not examine any witness or witnesses to support his case of mental incapacity as on the date of execution of Ext.B4 nor PW1 has a case that he had consumed liquor on that date.
32. Section 35(2) of the Registration Act stipulates that the Registering officer may in order to satisfy himself that the persons appearing before him are the persons they themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. Section 35(3) (b) provides that if any such person appears to the A.S. Nos. 250 & 251 of 1999 -27 registering officer to be a minor, an idiot or a lunatic and (c) provides that if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the persons so denying, appearing or dead:
33. Section 67 of the Registration Act mandates that the registering officer is bound to consider the objection raised on any of the grounds stated below.
(a) that the parties appearing or about to appear before him are not the persons they profess to be;
(b) that the document is forged;
(c) that the person appearing as a representative assign or agent has no right to appear in that capacity
(d) that the executing party is not really dead, as alleged by the party applying for registration;or
(e) that the executing party is minor or an idiot or a lunatic
34. At no point of time PW1 or his father or wife raised any objection before any authority complaining the registration of Ext.B4 document due to any of the above reasons.
35. Section 12 of the Indian Contract Act provides that in case of drunkenness or delirium from fever or other causes, the onus lies on the party who sets up that disability to prove that it existed at the time of the contract The questions of undue influence and of incapacity by reason of unsoundness of mind must not be mixed up, as they do totally different A.S. Nos. 250 & 251 of 1999 -28 issues. The understanding of a party to a contract required to uphold the validity of transaction would depend on the nature of the transaction. It is also stated therein that an instrument of conveyance executed by a person incapable of understanding its effect, in the sense of its general purport, is not on that account void though in the circumstances it may be voidable by the conveyor or his representatives.
36. In the decision reported in Mt.Hasrabi & others Vs.Mt.Fatmabi AIR 1938 Nagpur 204, it was held that registration is a solemn act, if there is a registration endorsement it shows that necessary formalities required by law have been complied with. Consequently where the effect of document registered is sought to be avoided by the party executing the same by pleading insanity at the time of execution of the same, the registration endorsement cannot be discarded or ignored in deciding the issue about the mental condition of the party when the deed was executed .
37. In Jai Narain and others Ve Mahabir Prasad and another AIR 1926 Oudh 470 the Division Bench held that although an executant of a deed might have been drinking hard and frequently of unsober and unsound mind, yet it must be established that at the time when the deed was executed he was of unsound mind.
38. In A.Pathu and others Vs. Khadeesa Umma and others 1990 (2) KLJ 115 it was held that there is the presumption under Section114 of the Evidence Act that a person only puts signature in a document in token of execution. Ordinarily, persons do not sign A.S. Nos. 250 & 251 of 1999 -29 documents without intending to execute them. That is the common course of human conduct or the common course of their public or private business. If any person wants to rely on any special circumstance, which abrogates the common course of public or private business; he must allege and prove it for the purpose of shifting the burden.
39. The trial court in paragraph 17 of its judgment considered the question as to whether the defendants have the means to pay Rs. 1.80 lakhs as recited in Ext.B4 sale deed and held that there is absolutely no reliable evidence on record to show that the defendants in O.S No. 629/1994 were having an amount of Rs. 1.80 lakhs with them on the date of execution of Ext.B4 sale deed and therefore concluded that Ext.B4 sale deed is not supported by consideration. In paragraph 18, the trial court also discussed the adequacy of consideration for the sale transaction and held that the property is situated in the heart of Kottayam town, that the building in the property fetched rental value of Rs. 4,000/- per month and therefore the transaction is obviously unconscionable In this context.
40. Section 16(3) of the Indian Contract Act is relevant for consideration. Section 16(3) is extracted as follows:
(3)" where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable , the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
A.S. Nos. 250 & 251 of 1999 -30
41. Two factors must be proved for the operation of subsection (3) of Section 16 of the Indian Contract Act. First is that a person was in a position to dominate the will of another and secondly the transaction appears on the face of it or on the evidence adduced to be unconscionable.
If either of these two conditions are not fulfilled the presumption of undue influence will not arise and the burden will not shift; and proof of the actual use of the dominating position will be required.
42. In this case PW1 and DW1 are strangers to each other. The only acquaintance pleaded in the plaint is that they were made known to each other at the prayer meeting occasions. I have already stated that it is not proved in this case that DW1 is in a position to dominate the will of PW1, in order to use that position to obtain an unfair advantage over the other. Apart from the bald averments in the plaint there is nothing on record to show that DW1 is in a position to dominate the will of PW1, at the same time the evidence on record shows that PW1 executed Ext.B4 sale deed at a time when he is in a sound state of mind. The second limb of Section 16(3) is not attracted in the context that the first limb stands not proved. On merit also the second limb under Section 16(3) is not attracted in this case. There is no evidence on record to show that the transaction appears on the face of it or on evidence adduced to be unconscionable. It has come out in evidence that the plaint schedule property is not facing any main road. The property is facing a lane which leads from the main road. It is not correct to say that the property is located in the heart of Kottayam town. 10 cents of land and an old building is the subject matter of the suit. The transaction took place during 1993. So it A.S. Nos. 250 & 251 of 1999 -31 cannot be said that there is evidence to show that the transaction appears on the face of it or on evidence to be unconscionable . The oral interested testimonies of PW1 and PW2 is that the property is worth more than 10 lakhs. But there is no evidence to prove that the property fetches such value. The market value of the property was fixed at Rs. 1,05,580/- in the plaint for the purpose of valuation of the plaint. Ext.A9 sale deed was relied on by the court below for concluding that the transaction is obviously unconscionable. Neither the vendor nor the vendee of Ext.A9 sale deed was examined. The exact location of Ext.A9 property is not known nor the circumstances that lead to the execution of Ext.A9 sale deed . It is not known whether Ext.A9 property is facing the main road in the Kottayam town or not. The question of unconscionableness of the transaction arises only when a transaction was carried out at the instance of a person who is in a position to dominate the will of another. The relationship of PW1 and DW1 are not in such a way that one of the parties is in a position to dominate the will of the other and to use that position to obtain an unfair advantage from the other. In a case where one person who uses his dominant position to obtain an unfair advantage over the other, Section 16(c) provides that the burden of proving that such contract was induced by undue influence shall be upon the person in a position to dominate the will of the other. Section 16(3) speaks about the burden of proof. The question whether the transaction is unconscionable or not depends firstly upon the person who is in a dominant position over the other. Here the relationship between the parties to contract is not of confidential or fiduciary nature . PW1 is not an A.S. Nos. 250 & 251 of 1999 -32 illiterate or a weak-minded person at the relevant period. He was the managing partner of a business firm . He himself has deposed that he was managing the affairs of the firm. Neither the plaintiff nor his witness has a case that the 1st plaintiff is of unsound mind in every activity other than the execution of the Ext.B4 sale deed. The question of unconscionableness comes for consideration only when it is determined that the relationship between the parties is in such a way that one is in a position to dominate the will of the other and not other wise. In this case the relationship between the parties is not like the nature pleaded by the 1st plaintiff. So long as there is no such relationship the question of unconscionableness did not come for consideration Moreover there is no evidence to prove that the transaction in dispute is unconscionable for any reasons, hence the reasons stated by the trial court are untenable.
43. The findings of the trial court that no consideration has been paid on the execution of Ext.B4 sale deed and PW1 had no intention to transfer the plaint schedule property to the defendants in O.S. No. 629/1999 nor the defendants have any intention to purchase the property and therefore Ext.B4 sale deed is a sham document and it had been executed without any intention to come into effect are unsustainable in law and facts. DW1 testified the fact that the property is occupied by a tenant, that the property is in his possession and his wife after the execution of Ext.B4 sale deed and that PW1 handed over the copy of the settlement deed, No.2588/1979 (prior title deed), the property tax receipt for the year 1993-94 encumbrance Certificate etc. Ext.B5 is the said settlement deed and Ext.B6 is the tax receipt for the period 1993-94.
A.S. Nos. 250 & 251 of 1999 -33 According to defendants the property was mutated in the name of the 1st
defendant after the execution of the sale deed . Ext.B8 Pokkuvaravu receipt shows that requisite fee was remitted for mutation proceedings. Ext.B9 is the receipt for payment of property tax and Exts.B10 and B11 are Certificate issued by Kottayam Municipality and the building tax receipt during the year 1993-94. The encumbrance certificate shows that the property is free from encumbrance. . DW1 also deposed that PW1 agreed to evict the tenant within six months from the date of the Ext.B4 sale deed and this is also one of the reason why the rent was agreed to be collected by the plaintiffs for 6 months and agreed to pay to the defendants. DW1 also testified that he has collected the income from the coconut trees standing in the property. In such circumstances the finding by the trial court to the effect that no consideration has been paid on the execution of Ext.B4 sale deed, that the said sale deed is a sham document and that Ext.B4 had been executed without any intention to come into effect are unsustainable in law and facts.
44. The trial court also held that Ext.B4 sale deed was executed as a result of undue influence exercised over PW1 by DW1, and PW1 was mentally unconscionable and weak in mind and was not capable of judging the consequences of the execution of the sale deed and on account of his absolute faith in DW1. Therefore, the court below held that Ext.B4 sale deed is vitiated by fraud and undue influence. I have gone through paragraphs 2, 3, 4, 5 and 6 of the plaint. The averments are to the effect that the 1st plaintiff was not capable of judging the consequences of the execution of document and of forming a rational judgment as to its A.S. Nos. 250 & 251 of 1999 -34 effects on his interest. The further material averment in the plaint is that the 1st plaintiff was alcoholic and of unsound mind and the 2nd defendant was in a position to take undue advantage over the 1st plaintiff. I have already found that the relationship of the parties is in such a way that one is not in a position to dominate the will of the other and therefore PW1 is not under such influence of DW1. PW1 failed to prove that DW1 is in a position to influence PW1 nor there is evidence to prove that the relationship is in such a way that DW1 is in a position to exercise undue influence over PW1. It is for the 1st plaintiff to prove that there is influence and that such influence is undue in the language of law. The principle can be applied only in a case where the influence is acquired and abused, where confidence is repossessed and better" .
45. On an appreciation of the evidence on record, I find that the decrees and judgments passed by the trial court are liable to be set aside. It has also come out in evidence that the defendants have no house of their own. It is natural that the defendants have decided to purchase the plaint schedule property. The building stands in the property according to DW1 is 60 years old. The property is lying by the side of a narrow line. There is no evidence to show that the transaction is unconscionable. Moreover the said question does not arise for consideration. It is evident from the above facts and circumstances that the relationship of the parties is normal, that PW1 was not mentally infirm and was not incapable of protecting his rights, that PW1 was capable of judging the consequences of the transaction entered by him during the relevant period and was capable of forming a rational judgment as to its effects upon his interest.
A.S. Nos. 250 & 251 of 1999 -35 This Court is of the firm view that Ext.B4 sale deed executed in favour of the 1st defendant is a valid document.
46. In the result, the judgments and decrees passed by the trial court are set aside. O.S. 629/1994 is dismissed O.S No. 561/1994 is allowed A decree for perpetual injunction is passed restraining the 1st defendant in O.S. No. 561/1994 from trespassing into the plaint schedule property and from interfering with the possession and enjoyment of the plaintiffs therein. The 2nd defendant is directed to attorn rent to the plaintiffsin O.S. No. 561/1994 if he is still in possession and enjoyment of the building as a tenant. The plaintiffs are allowed to realise Rs. 33,250/- with interest at 6% from the date of suit till realisation from the 1st defendant and his assets. O.S No. 561/1994 is decreed with costs throughout. A.S. No. 250/1999 and A.S No. 251/1999 are allowed with costs.
(HARUN-UL-RASHID, JUDGE) es.
A.S. Nos. 250 & 251 of 1999 -36
HARUN-UL-RASHID, J.
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A.S. Nos. 250 & 251 of 1999
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JUDGMENT
1st September, 2009