… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 115 OF 2003 1. Shri Anil Parshuram Audi major of age, businessman, married, and his wife 2. Smt. Anuradha Audi, major of age, housewife, 3. Shri Uday Parshuram Audi, major of age, married and his wife 4. Smt. Ujwala Audi, major of age, housewife, 5. Shri Ulhas Parshuram Audi, major of age, businessman, married, and his wife 6. Smt. Umida Audi, major of age, housewife, 7. Shri Rajendra Parshuram Audi major of age, businessman, married, and his wife, 8. Smt. Rachitra Audi, major of age, housewife, 9. Shri Audhut Parshuram Audi major of age, businessman, All residents of House No.919, Aksona, Benaulim-Goa 10. Smt. Nayana Avinash Bondekar, major of age, married, housewife, r/o Old market, Behind Damodar Sal Temple, Margao, Goa. 11. Smt. Kumudini Mukesh Dharwadkar, major of age, married, housewife, r/o Nerul, Goa. … 2 … 12. Smt. Sulaksha Satish Bhobe, Major of age, married, housewife, r/o House No.3352, Ghondaligally, Benaulim. .. Appellants Vs. 1. Shri Shrikant Parshuram S. Audi major of age, married, businessman, and his wife 2. Smt. Surekha Shrikant Audi, major of age, housewife, both r/o Iswar-Krupa, Behind Shantadurga Temple, Shantinagar, Rawanfond, Navelim, Salcete, Goa 3. Shri Datta Parshuram Audi, major of age, married, Chartered Accountant, and his wife, 4. Smt. Girija Audi, major of age, married, housewife, both r/o 2nd floor, F3, Meera Building, Pajifond, Margao, Go. .. Respondents Mr. R. G. Ramani, Advocate for the appellant. None for the respondents, though served. CORAM :- A. P. LAVANDE, J. Reserved on : 25 th January, 2011. Pronounced on : 10 th March, 2011. JUDGMENT : Heard Mr. Ramani, learned Counsel for the … 3 … appellants. None appeared for the respondents, though served. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 16th September, 2003 passed by the Additional District Judge, South Goa, Margao in Regular Civil Appeal No.85/2001 by which the appellate Court set aside the judgment and decree dated 24th April, 2001 passed by the Civil Judge, Junior Division, Margao in Regular Civil Suit No.205/1993/C. 3. The appellants and respondent nos.3 and 4 are the defendants in the above suit filed seeking the following reliefs : (a) For a declaration that the document of so called 'deed of partition dated 16/08/1990' is null and void and consequently the said document be ordered to be delivered up and cancelled; (b) For a declaration that the dissolution of firm and retirement of plaintiff Shrikant from the partnership firm as constituted on 1/2/1971, is null and void; (c) Further declaration to the effect that the plaintiff Shrikant still continues as one of the partners in M/s Purshuram R. Audi, without any liabilities to him/them that may arise since the date of their exclusion; … 4 … (d) For a decree ordering nullity of any subsequent deed of reconstitution of partnership, if formed. The parties shall hereinafter be referred to as per their status before the Trial Court. 4. Briefly, the case of the plaintiffs was as under : (a) Purshuram Audi, (since deceased) was running grocery business in two shops, one at Margao and another at Navelim and was maintaining his family members comprising his wife, defendant no.1, seven sons including plaintiff no.1 - Shrikant and defendant no.2 - Anil and three daughters with income derived therefrom. (b) On or about 1967, a partnership firm was constituted in the name and style of 'M/s. Parshuram R. Audi' with late Parshuram Audi, plaintiff no.1 Shrikant and defendant no.2 Anil as partners thereof. The intention behind constituting the said firm was to run and operate the business as family business and the profits derived therefore were utilized for the welfare and maintenance of the family. (c) After the death of the late Purshuram Audi in or about 1971, the partnership was reconstituted and his wife defendant no.1- Smt. Sarlabai Audi (since deceased) was … 5 … brought in as a fresh partner in place of late Parshuram Audi. (d) In or about 1990, plaintiff no.1 Shrikant and defendant no.2 Anil expanded the business activities with the concurrence of defendant no.1 by purchasing additional two shops at Navelim for the price of Rs.1 Lakh in the names of defendant no.3- Uday and defendant no.4 - Ulhas and towards purchase thereof, initial withdrawal of Rs.25,000/- each was made from the partnership account No.9 maintained in Corporation Bank, Margao Branch and the balance was also paid from the income of the said partnership business. (e) Since 1972 or thereabout, plaintiff no.1 during the leisure time did some real estate development and sale of plots on commission basis which earned him some additional income and out of the said earnings plaintiff no.1 purchased gas connection with cylinder, invested Rs.8000/- during 1976 in the purchase of Scooter make 'Bajaj Super' and made deposit of Rs.11000/- for booking Fiat car sometime in 1982 and all these items are withheld by the brothers of plaintiff no.1. (f) In or about the middle of 1988, plaintiff no.1 started developing mental sickness and had to be hospitalized as psychic patient in Grace Hospital and Miranda Hospital … 6 … where he was treated by specialists like Dr. Magno A. C. Pereira and Dr. Laurence Rodrigues and was under treatment for a period which lasted upto the end of 1991. (g) During this period the brothers of the plaintiff no.1 took over the management and control of family matters including the business and in collusion with defendant no.1 shifted the plaintiffs' accommodation to their uncle's house at Benaulim on the pretext that such change of accommodation was recommended by doctors. (h) Plaintiff no.1 recovered from his illness sometime in the middle of 1991 when he came to know about the document of partition dated 16/08/1990 whereby the plaintiffs were excluded and separated from the family business and estate. The plaintiffs' share in the assets of the family was shown as being separated in consideration of Rs.3,36,592.72 stated therein as paid when no such payment was received by the plaintiffs. (i) The document of partition dated 16/08/1990 was brought about by the defendants during mental illness of plaintiff no.1 and exercising duress upon his wife. The said document dated 16/08/1990 was without use of the plaintiffs' free will and consent and, therefore, the same is illegal and liable to be delivered up and cancelled. … 7 … 5. The defendants filed written statement controverting the case of the plaintiffs. Briefly, the case of the defendants was as under : (a) Late Parshuram Audi owned a commercial establishment which ran two shops, one on the northern side of the Railway Gate at Margao and the other on the southern side on Khareband Road. The said commercial establishment was earlier a proprietary firm and on or about 1967, a partnership was constituted in the name and style of 'Parshuram R. Audi' with late Parshuram, plaintiff no.1 and defendant no.2 as the partners thereof and after the death of late Parshuram, defendant no.1 was brought in as a fresh partner. (b) The firm and all its partners as well as the family members worked hard to meet the needs of the family. (c) The defendant no.2 shouldered the responsibility of the business as plaintiff no.1 started gradually showing disinterest and began to deal with Real Estate as his personal affair but did not spend any money for the family from his personal earnings. (d) The purchases or investment as stated in … 8 … paragraph 11 of the plaint were made from the agricultural income of the family and the Fiat car was purchased from the partnership income and not from the personal earnings of plaintiff no.1. (e) That apart from the said partnership business the defendant Ulhas who was teaching from 1979, the defendant Nayan who joined Government service in 1981, the defendant Rajendra who took private employment in 1983, the defendant Datta who took private employment in 1985, the defendants Kumudini and Sulaksha who were earning by giving tuitions, helped the family whenever need arose. (f) An amicable settlement by way of the document of partition dated 16/08/1990 was made at the instance and insistence of the plaintiffs. It is plaintiff no.1 who contacted Advocate Santosh Timblo for legal advice and sought intervention of Shri Datta Virginkar, and Shri Krishna Nanu Naik, two respectable members of business community of Margao and the defendants gave full co-operation. The draft of the partition was prepared and discussed over several days and was finalized only when plaintiff no.1 was fully satisfied. As defendant no.1 had heart ailment the execution of the said document dated 16/08/1990 was arranged at the family house at Benaulim. The plaintiffs were assisted by their advocate … 9 … Shri Santosh Timblo and the defendants by their advocate Shri Uday Bhembre. The said document was executed in the presence of the Sub-Registrar of Salcete and Shri Datta Virginkar and Krishna Nanu Naik were present as witnesses. The plaintiffs signed the said document voluntarily and consciously and were fully satisfied with the contents thereof. The plaintiffs were issued a cheque as part of the deal which they subsequently encashed. (g) The defendants denied the case of the alleged mental illness of plaintiff no.1 during the middle of 1988 to the middle of 1991 as pleaded in the plaint. (h) The suit filed on 30/09/1993 for declaration of nullity of the document dated 16/08/1990 was clearly barred by the law of limitation. 6. On the basis of the pleadings, the trial Court framed the following issues : (i) Whether the plaintiffs prove that late Parshuram Audi owned two commercial establishments, one at Margao ? (ii) Whether the plaintiffs prove that the plaintiff no.1 started developing mental sickness in the year 1988 and during this period the brothers of the plaintiff no.1 took over the management and control of family matters … 10 … including family business ? (iii) Whether the plaintiffs prove that the deed of partition dated 16/08/1990 is without the use of plaintiffs free will and/ or consent ? (iv) Whether the defendants prove that the suit is barred by law of limitation ? (v) Whether the defendants prove that the commercial establishment of late Parshuram Audi was a proprietary firm ? (vi) What order ? What relief ? (vii) Whether plaintiffs prove that assets shown in the deed of partition are his personal belonging and are falsely shown as having paid to the plaintiffs towards their share in sale deed ? (viii) Whether plaintiffs prove that aforesaid deed of partition is invalid as it brings future share of plaintiffs in the estate of defendant no.1 which share is not yet devolved on plaintiffs ? (ix) Whether defendants prove that assets enumerated in partition deed are acquired with money spent from family income ? 7. The plaintiffs examined five witnesses namely plaintiff no.1 as PW1, Dr. Lawrence Rodrigues- PW2, Ravindra Audi- PW3, Vithal Redkar- PW4 and Shrikant Kamat- PW5. 8. The defendants examined four witnesses namely defendant no.2 as DW1, Krishna Nanu Naik- DW2, Datta … 11 … Virginkar – DW3 and Vasudeo Hadkonkar – DW4. Both the parties also produced documentary evidence in support of their case. 9. During the pendency of the suit, original defendant no.1 expired. The trial Court upon appreciation of the evidence oral and documentary led by the parties held that the plaintiffs had proved that plaintiff no.1 was mentally sick in the year 1988, but he had improved during 1990 to 1991 and as such the plaintiffs had not proved that the deed of partition dated 16/08/1990 was without free will and/ or consent. The trial Court also found that the plaintiffs had not proved that the assets shown in the deed of partition dated 16/08/1990 were their personal belonging and are falsely shown as having paid to the plaintiffs towards their share in the sale deed. The defendants have proved that the assets enumerated in the deed of partition was acquired with money spent from family income. The trail Court also found that the suit was barred by law of limitation. Consequently, the trial Court dismissed the suit by judgment and decree dated 24th April, 2001. 10. The Additional District Judge in the appeal … 12 … preferred by the plaintiffs framed the following points for determination : (i) Whether the document dated 16/08/1990 was executed with free will and free consent of the plaintiff ? (ii) Whether the suit is filed within limitation ? (iii) Whether the said deed of partition is tenable in the eyes of law ? (iv) Whether any interference is called for with findings of the learned Trial Court ? 11. The appellate Court held that the document dated 16/08/1990 was not executed with free will and consent of the plaintiffs. The appellate Court further held that the suit was filed within the period of limitation and consequently, set aside the decree passed by the trial Court. 12. The appeal was admitted on the following substantial questions of law : (a) Whether on the pleadings and the material brought on record by the parties, the learned Additional District Court was right in holding that the document dated 16/08/1990 was executed without the free will and consent of the plaintiffs and that the suit filed by the plaintiffs was within limitation, more so when such … 13 … findings were arrived at in reversal of the findings of the learned trial Court ? (b) Whether the findings recorded by the learned Additional District Court in reversal of the findings of the learned trial Court are not based upon the correct application of legal principles governing the proof regarding the free will and consent and about the mental state of mind of a person for the purpose of executing a document and the same are completely perverse ? 13. Mr. Ramani, learned Counsel for the appellants, submitted that reliance placed by the lower appellate Court on the judgment in the case of Clara Auroro de Brangenca and others Versus Sylvia Angela Alvares and others; AIR 1985 Bom 372 is clearly misplaced in as much as the facts in the said case are entirely different. Mr. Ramani submitted that the plaintiffs had not discharged the burden of proving that at the time of executing the deed of partition dated 16/08/1990 the mind of plaintiff no.1 was completely deranged so that he was incompetent to enter into any contract or that he was of unsound mind with regard to transaction in question. Mr. Ramani submits that judgment of the lower appellate Court be quashed and set aside and the appeal be allowed. In support of his submissions, Mr. Ramani relied upon the judgment in the case of Monosseh Jacob … 14 … Monosseh Versus Shapurji Hormusji Harver; (1908)10 BOMLR 1004. Mr. Ramani took me through the relevant evidence led by the parties. 14. None appeared on behalf of the respondents, though they were served. 15. Since the deed of partition dated 16/08/1990 is challenged on the ground of mental illness of respondent no.1 / plaintiff no.1, it would be appropriate to consider the evidence of Dr. Lawrence Rodrigues-PW2, who was examined by the plaintiffs to prove insanity of plaintiff no.1 at the time of execution of the deed. His evidence discloses that plaintiff no.1 was his patient from 1989 to 1990 and he was taking treatment for mental illness. He deposed that when plaintiff no.1 was examined, he was found acutely disturbed and abusive and he was suffering from manic depressive psychosis. Plaintiff no.1 was given injunction since he refused to take oral medication. He further stated that plaintiff no.1 was admitted in Miranda Hospital, Margao. He produced prescription (exhibit PW2/A colly) which were for the period from 30th December, 1989 to 23rd April, 1990 and 22nd June 1991 to 16th October, 1991. He further stated that … 15 … the last treatment was taken by plaintiff no.1 in October, 1991. In cross-examination, he deposed that plaintiff no.1 improved gradually after taking treatment and treatment was discontinued because plaintiff no.1 was improved. He further deposed that acute excitement problem of plaintiff no.1 lasted for about 3 to 4 weeks and with medication it subsided. He admitted that after about 6 months of treatment, plaintiff no.1 improved and he was in a position to understand as phase of acute excitement was over. 16. In order to find out whether the document dated 16/08/1990 was executed when plaintiff no.1 was of unsound mind thereby vitiating the said partition deed, at this stage, it would be appropriate to refer to Section 12 of the Indian Contract Act ('the Act' for short). Section 12 of the Act reads thus : “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 … 16 … 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. ” 17. From a bare perusal of Section 12 of the Act it is clear that a person has to be considered of sound mind for the purpose of making contract, if at the time he makes it, he is capable of understanding it and forming of rational judgment as to its effect and his interest. It further provides that a person who is usually of unsound of mind, but occasionally of sound mind, may also enter into a contract when he is of sound mind. Similarly, a person who is usually of sound mind, but occasionally of unsound mind, he may not make contract when he is of unsound mind. The illustration (a) to Section 12 of the Act which states that a patient in lunatic asylum, who is, at intervals, of sound mind, may contract during those intervals. The evidence of PW2 Dr. Laurence clearly discloses that plaintiff no.1 was under his treatment for the period from 30th December, 1989 to 23rd April, 1990 and 22nd June 1991 to 16th October, 1991. His evidence discloses that from April, 1990 to June 1991, plaintiff no.1 was not treated by him. Moreover, his evidence also discloses that after about 6 months' treatment, plaintiff … 17 … no.1 had improved and he was in a position to understand as phase of acute excitement was over. Considering the period during which the plaintiff no.1 was under treatment of Dr. Laurence Rodrigues- PW2, it is clear that in August, 1990, when the said deed of partition dated 16/08/1990 was executed by plaintiff no.1 he was not mentally unsound. The necessary sequitur is that at the time of signing the said document, plaintiff no.1 was not mentally unsound and was in a position to understand the nature of his act. Therefore, in my considered opinion, the finding recorded by the lower appellate Court that the document dated 16/08/1990 was not executed with free will and with free consent, cannot be sustained. 18. The evidence of Krishna Nanu Naik-DW2 and Datta Virginkar-DW3 which has not been shaken in cross- examination, clearly establishes that at the instance of plaintiff no.1 they intervened in the family dispute and the deed of partition dated 16/08/1990 was executed in their presence. I have absolutely no reason to disbelieve their version which inspires confidence. The testimony of these two witnesses also supports the case set up by the defendants that it was at the instance of plaintiff no.1 both these … 18 … witnesses intervened and thereafter the deed of partition was entered into which was duly signed by the parties including the plaintiffs. The evidence of these two witnesses clearly establishes that it was plaintiff no.1 who took initiative to settle the family dispute and sought intervention of these two witnesses and the dispute culminated in execution of deed of partition dated 16/08/1990. In my opinion, the trial Court was perfectly justified in placing reliance upon the testimony of these two witnesses. 19. In the case of Monosseh Jacob Monosseh (supra), the learned Single Judge of this Court has held that where a person is not proved to be a lunatic on inquisition, it is not necessary to rebut the general presumption of insanity. This can be done by proving that his mind was completely deranged so that he was incompetent to enter into any contract or by proving that he was of unsound mind with regard to particular transaction. 20. The reliance placed by the appellate Court upon the case of Clara Auroro de Brangenca (supra) is clearly misplaced. In the said case, the power of attorney empowered a person to execute a partition deed in respect of … 19 … a specified property. However, some of the executants of power of attorney were mentally unsound. Moreover, the holder of power of attorney executed partition of other properties besides those specified. In this factual background, the Court found that the power of attorney was not exhausted and cancellation of power of attorney under Section 31 of the Specific Relief Act, 1963 as void was justified. 21. In the present case, the trial Court upon appreciation of evidence led by both the parties held that the deed of partition dated 16/08/1990 was not executed by plaintiff no.1 without free will and/ or consent and consequently, the suit filed in the year 2003 was barred by limitation. In my considered opinion, this finding recorded by the trial Court was upon a correct appreciation of the evidence. The lower appellate Court has clearly erred in holding that the prescriptions given by Dr. Laurence Rodrigues-PW2 were from the year 1989 till 1991. As stated above, the evidence of Dr. Rodrigues-PW2 does not disclose that plaintiff no.1 was under his treatment for the period from April, 1990 to June 1991. Admittedly, the partition deed was executed in August, 1990. Therefore, the burden of … 20 … proving that plaintiff no.1 was insane and as such he was not in a position to give his free consent for execution of the deed was upon the plaintiffs. In my considered opinion, the evidence led by the plaintiffs was not sufficient to establish insanity of plaintiff no.1 at the time of execution of deed of partition. Therefore, the finding recorded by the appellate Court that the document dated 16/08/1990 was not executed with free will and consent of plaintiff no.1 is patently unsustainable. The necessary sequitur is that the suit filed in the year 2003 seeking declaration and other reliefs was barred by limitation. Since the suit was barred by limitation, the trial Court was perfectly justified in dismissing the suit. The lower appellate Court was not justified in reversing the decree passed by the trial Court. 22. In view of the above discussion, I am of the considered opinion that the impugned judgment and decree dated 16th September, 2003 passed by the lower appellate Court is liable to be set aside. The substantial questions of law formulated are answered in favour of the appellants. 23. For the reasons aforesaid, the appeal is allowed. The judgment and decree dated 16th September, 2003 passed … 21 … by Additional District Judge, Margao is quashed and set aside and the judgment and decree passed by the trial Court is restored. Considering that the respondents have not put in appearance, there shall be no order as to costs. A. P. LAVANDE, J. SMA