Case: Mahammadunni'S Son Kappatta Kathokandath Bava Vs. Kunhoosa'S Son Ampalath Veettil Kunnathodath Mahammadunni &

RAY, C.J.2. This is an appeal by certificate from the judgment dated 17 July 1969 of the High Court of Kerala.2. The question in this appeal is whether defendants No. 1 and 4 are each entitled to share in the property allotted to defendant No. 3 in a partition decree. Defendant No. 4 is the appellant.3. This appeal arises out of a suit instituted on 19 November, 1957 for partition of properties. Properties mentioned in Schedule A and B to t he plaint belonged to the mother of defendant No. 3. Properties mentioned in Schedule C to the plaint were joint properties of the father and the mother of defendant No. 3.4. The plaintiff and defendant No. 2 are the sons of one of the brothers of the mother of defendant No. 3. Defendant No. 1 is the son of another brother of the mother of defendant No. 3. Defendant No. 4 is the son of defendant No. 3s fathers brother.5. Defendant No. 3 died during the pendency of the suit. Thereafter defendant No. 1 filed his additional written statement and claimed half share in the property of defendant No. 3 on the ground that defendant No. 1 had married defendant No. 3 on 30 August, 1959.6. The Trial Court allotted to defendant No. 33/6th share in properties mentioned in Schedules A and to the plaint. The plaintiff and Defendant No. 1 and defendant No. 2 were each given 1/6th share in properties in Schedules A and B to the plaint. With regard to Schedule properties the plaintiff and defendant No. 1 and defendant No. 2 were each given 9/96th share and defendant No. 3 was given 51/96th share and defendant No. 4 was given 18/96th share.7. The Trial Court found that defendant No. 4 was alone entitled to the share of defendant No. 3 on the ground that marriage of defendant No. 3 with defendant No. 1 was not proved. The Trial Court also found that defendant No. 3 was mentally unsound to enter into any marriage.Defendant No. 1 preferred an appeal. The High Court set aside the judgment of the Trial Court and held that defendant No. 1 was married to defendant No. 3 and defendant No. 3 was in a lucid interval at the time of marriage.8. Counsel for the appellant defendant No. 4 impeached the finding of the High Court both with regard to the fact of marriage and the finding that defendant No. 3 was married in a lucid interval.9. Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into marriage with defendant No. 1. The first document is Exhibit B-34 which is an order dated 8 November, 1958 declaring defendant No. 3 to be a person of unsound mind. In that order defendant No. 4 was appointed guardian of the property of defendant No. 3 and defendant No. 1 was appointed guardian of the person of defendant No. 3. The second document is Exhibit B-8 dated 7 September 1959. The appellant submitted that on 7 September 1959 defendant No. 3 wanted to get herself declared as a person of sound mind. By an order dated 5 February 1960 being Exhibit B-31 the District Judge dismissed the application of defendant No. 3. The third document on which the appellant relied is the suit in this appeal where defendant No. 3 on 19 November, 1957 was impleaded as a person of unsound mind.10. The appellant contended that though Exhibit B-34, namely, order dated 8 November 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment interparties and it would, therefore, be admissible under sections 11 and 13 of the Evidence Act. The appellant also contended relying on the decision in Amanchi Seshamma v. Amanchi Padmanabha Rao(1) that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.Counsel for the appellant therefore contended that the conclusion of the High Court that defendant No. 3 was in a lucid interval at the time of marriage was against the overwhelming documentary evidence.11. The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August 1959. The High Court relied on the evidence of D.W. 4 who attended the marriage. D.W. 4 was a teacher. His evidence was that defendant No. 3 at the time of marriage talked with Musaliar. His further evidence was that Musaliar called defendant No. 3 and she went near him and told him that he was being authorised by her to give her in marriage to defendant No. 1. The High Court rightly found that defendant No. 3 gave her consent to the marriage and was in her lucid interval.

Decision:
1[ds]9. Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into marriage with defendant No. 1. The first document is Exhibitwhich is an order dated 8 November, 1958 declaring defendant No. 3 to be a person of unsound mind. In that order defendant No. 4 was appointed guardian of the property of defendant No. 3 and defendant No. 1 was appointed guardian of the person of defendant No. 3. The second document is Exhibitdated 7 September 1959. The appellant submitted that on 7 September 1959 defendant No. 3 wanted to get herself declared as a person of sound mind. By an order dated 5 February 1960 being Exhibitthe District Judge dismissed the application of defendant No. 3. The third document on which the appellant relied is the suit in this appeal where defendant No. 3 on 19 November, 1957 was impleaded as a person of unsound mind.10. The appellant contended that though Exhibitnamely, order dated 8 November 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment interparties and it would, therefore, be admissible under sections 11 and 13 of the Evidence Act. The appellant also contended relying on the decision in Amanchi Seshamma v. Amanchi Padmanabha Rao(1) that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.Counsel for the appellant therefore contended that the conclusion of the High Court that defendant No. 3 was in a lucid interval at the time of marriage was against the overwhelming documentary evidence.11. The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August 1959. The High Court relied on the evidence of D.W. 4 who attended the marriage. D.W. 4 was a teacher. His evidence was that defendant No. 3 at the time of marriage talked with Musaliar. His further evidence was that Musaliar called defendant No. 3 and she went near him and told him that he was being authorised by her to give her in marriage to defendant No. 1. The High Court rightly found that defendant No. 3 gave her consent to the marriage and was in her lucid interval.