RSA No.3815 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3815 of 2011 (O&M) Date of decision 20.9.2011. Charanjit Singh ...... Appellant. versus Chattranjan Pal and others ...... Respondents. CORAM :- HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. Devinder Chopra, Advocate for the appellant. K.C.PURI . J. Challenge in this regular second appeal are the judgment and decree dated 6.8.2011 passed by Mrs. Sukhvinder Kaur, learned Additional District Judge, Moga vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 4.8.2009 passed by Shri Kewal Krishan, Civil Judge (Junior Division), Moga was RSA No.3815 of 2011 2 dismissed. 2. Briefly stated the facts of the case of the plaintiff are that Chattranjan Pal son of Sukhchain Raj through his brother Parmatama Sarup son of Sukhchain Raj filed suit for declaration and consequential relief of injunction. The case of the plaintiff is that he is recorded owner of the suit land to the extent of 1/8th share. He is of unsound mind and as such filed the suit through his brother Parmatama Sarup, who has no adverse interest to that of plaintiff. Defendant No.1 alleged that he has become owner of land bearing khasra No.272//22, 23min measuring 8K-4M., by virtue of sale deed dated 29.4.1999 , alleged to be executed by Chattranjan Pal. Plaintiff was of unsound mind and was not in a position to execute the sale deed dated 29.4.1999. The said sale deed is without consideration and is result of fraud played by defendant No.1 along with the witnesses. The plaintiff never appeared before the Sub Registrar. Defendant Nos. 2 to 6 are cosharers while defendant No.7 is a mortgagee. Defendant No.1 was asked to admit the claim of the plaintiff but he refused and hence this suit. 3. On put to notice, defendants appeared and filed joint written statement taking preliminary objection that the plaintiff is not in possession of the suit land and that suit for declaration is not maintainable, the suit is not properly valued. 4. On merits, it was replied that plaintiff sold his land to defendant No.1 for consideration of Rs.1,54,000/-. The sale deed was executed with the consent of Sukhchain Raj, father of plaintiff. Sukhchain Singh appeared as a witness on the sale deed. Plaintiff thumb marked the sale deed RSA No.3815 of 2011 3 after admitting the contents of the same as correct. The other contents of the plaint were denied. However, other defendants did not appear despite service and they were proceeded ex-parte. Subsequently, legal heirs of defendant Nos. 2 and 6 were impleaded. 5. Plaintiff filed replication to the written statement preferred by defendant Nos.1 to 5, denying the contents of the written statement and reiterated the stand taken in the plaint. 6. Following issues were framed :- -- 1. Whether plaintiff is owner and in joint possession of the suit property?OPP 2. Whether the alleged sale deed dated 29.4.99 executed by the plaintiff in favour of defendant No.1 is illegal, null and void?OPP 3. Whether plaintiff is entitled to permanent injunction as prayed for ?OPP 4. Whether the plaintiff is not in possession of the suit property?OPD 5. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction?OPD 6. Relief. 7. The plaintiff in order to prove his case, examined Parmatma Sarup (PW-1), Sukhdev Raj as (PW-2), Darshan Singh (PW-3), Bikramjit Singh (PW-4), Darshan Singh (PW-5), Dr. Jaswant Singh (PW-6). 8. 8. In rebuttal, defendant examined Charanajit Kumar appeared as his own witness as DW-3 and also examined Sukhchain Raj (DW-1) and Waryam Singh (DW-2) and closed the evidence. RSA No.3815 of 2011 4 9. The learned trial Court after appraisal of the evidence held that plaintiff Chatranjan Pal was unsound mind and was unable to execute the sale deed and consequently decreed the suit of the plaintiff vide judgment and decree dated 4.8.2009. 10. Feeling dis-satisfied with the aforesaid judgment and decree dated 4.8.2009, one of the defendant filed first appeal before the First Appellate Court. The First Appellate Court after hearing the learned counsel for the parties dismissed the appeal of the defendant vide judgment and decree dated 6.8.2011. 11. Still feeling dissatisfied with the judgment and decree dated 4.8.2009 passed by the trial Court and judgment and decree dated 6.8.2011 passed by the First Appellate Court, the defendant/appellant has preferred the present regular second appeal. 12. The appellant in paragraph No.8 of the grounds of appeal has mentioned that following substantial questions of law have arisen for decision in the present regular second appeal :- i. Whether it was incumbent upon the Trial Court to appoint a guardian of an unsound mind plaintiff under Order XXXII Rule 15 of the Code of Civil Procedure, 1908 at the time when the plaint was entertained by it? ii. Whether a simpliciter suit for declaration by the plaintiff, without claiming a consequential relief of possession, is maintainable when admittedly the land in dispute was in possession of the Defendant at the time when the suit was filed, in light of Section 34 of the Specific Relief Act, 1963? iii. Whether suit for declaration seeking relief of setting aside of Registered Sale Deed is maintainable without affixing proper Court Fee qua the consideration as per proviso to (iv) of Section 7 of the Court Fee Act, 1870? iv. Whether in absence of any evidence on the record that Plaintiff-Chatranjan Pal was of unsound mind on RSA No.3815 of 2011 5 29.04.1999 (when he executed a Registered Sale Deed in favour of the Appellant) the Courts below could have decreed the suit? v. Whether the Courts below could have relied upon Certificate dated 22.06.1999 (Exhibit P1), which is of a highly suspicious nature? vi. Whether the Courts below have misread and misinterpreted the evidence on the record? 13. The first ground of attack laid by the learned counsel for the appellant is that the application under Order XXXII Rule XV of the CPC was decided at the fag end of the litigation. The plaintiff has filed simpliciter suit for declaration and possession has not been filed. Simpliciter suit for declaration is not maintainable in view of Section 34 of the Specific Relief Act. It is further submitted that plaintiff is seeking relief of setting aside the sale deed. The plaintiff should have affixed the advalorem court fee. It is further submitted that the trial Court has relied upon certificate Ex.P-1 dated 22.6.1999, vide which the plaintiff has been declared of unsound mind to the extent of 40%. It is submitted that both the Courts below have not gone through the provisions of Sections 11 and 12 of the Contract Act. A person of unsound mind may be entered into contract if at the time of execution of contract, he is able to make a rational judgment in respect of his interest. Both the Courts below have failed to appreciate that at the relevant time i.e. on the date of execution of the sale deed, the plaintiff has not been able to prove that he was suffering from attack of unsound mind. The sale deed is signed by father of the plaintiff. So, the same cannot be challenged by the plaintiff. The learned counsel for the appellant has relied upon following authorities in support of his RSA No.3815 of 2011 6 contention :- 1. Duvvuri Papi Reddi and others vs. Duvvuri Rami Reddi AIR 1969 ANDHRA PRADESH 362 ; 2. Somnath vs. Tipanna Ramchandra Jannu AIR 1973 Bombay 276 ; 3. Asha Rani vs. Amrat Lal AIR 1977 P & H 28 ; 4. Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors 2010 (2) RCR (Civil) 564 ; 5. Mst. Shankari vs. Jodha AIR 1921 Lahore 156 ; 6. Ram Saran and another vs. Smt.Ganga Devi AIR 1972 Supreme Court 2685 ; 7. Saudagar Singh vs. Harnam Kaur 1987(1) PLR 591 8. Mahomed Yakub and others vs. Abdul Quddus and others AIR 1923 Patna 187 9. Ram Sundar Siha and others vs. Kali Narain Sen Choudhury and others AIR 1927 Calcutta 889 ; 10. Tilok Chand Charana Das vs. Mahandu AIR 1933 Lahore 458 ; 11. Sona Bala Bora & Ors vs. Jyotirindra Bhatacharjee 2005(4) SCC 501 ; 12. Mst. Lakshmi vs. Dr.Ajay Kumar and Ors. AIR 2006 P & H 77 14. I have carefully considered the submissions made by learned counsel for the appellant and have gone through the facts and law cited by the learned counsel for the appellant but do not find any force in those submissions. 15. The first objection taken by the learned counsel for the RSA No.3815 of 2011 7 appellant is in respect of Order XXXII Rule XV CPC. The appellant in the grounds of appeal itself has mentioned that said application was decided by the trial Court. Prayer of appellant was allowed to pursue the case on behalf of plaintiff. It is not disputed that said order of allowing the application under Order XXXII Rule XV CPC has not been challenged in the first appeal. The same has however been challenged in the regular second appeal. From the bare perusal of order XXXII Rule XV CPC, it is revealed that a person can apply before or during the pendency of the suit that plaintiff is unsound mind and the Court can make enquiry to the effect that plaintiff was incapable by reason of any mental infirmity. In the present case, the plaintiff has produced on record the testimony of the doctor besides the certificate Ex.P-1 in which it is mentioned that plaintiff is a mentally retarded to the extent of 40%. Both the Courts below after appraisal and re-appraisal of the evidence reached to the conclusion that plaintiff was unable to make a rational judgment and was of unsound mind. That being a finding of fact recorded by both the Courts below cannot be allowed to be agitated in the regular second appeal. No doubt, according to Section 12 of the Contract Act, a person is said to be unsound mind if at the time of contract, he was not capable of understanding it and forming a rational judgment. It is mentioned that a person who is usually of unsound mind but on some occasions became of sound mind, may make a contract when he is of sound mind. The doctor has categorically stated that plaintiff was not able to make a rational judgment. It is a civil case and the onus goes on shifting. After statement of doctor that the plaintiff was unsound mind the onus shifted upon the defendant that at the time of RSA No.3815 of 2011 8 execution of the sale deed, plaintiff was of a sound mind and was capable of making rational judgment. 16. At the cost of repetition since there is finding of fact recorded by both the Courts below that plaintiff was of unsound mind and could not execute the sale deed, the said fact cannot be agitated in the regular second appeal. The application order XXXII Rule XV CPC has been rightly accepted by the trial Court as according to the said provisions the same can be accepted at any stage of the trial. The trial Court could have allowed the application only after inquiry. The trial Court was satisfied after the going through the statement of doctor that plaintiff appeared to be of unsound mind and that application was rightly accepted. The defendant/appellant has not challenged the said order in the first appeal. So, no ground for interference in respect of order passed order XXXII Rule XV CPC is made out. 17. Authority Duvvuri Papi Reddi and others' case (supra) simply lays down that in case the suit has been filed by the minor or of a person of unsound mind through next friend, the same can be returned under Rule 2 of Order 32. There is no dispute to the proposition of law. In this ruling, it has been held that order XXXII Rule XV CPC relates to giving proper representation to the plaintiff if he is minor or is of unsound mind. Similar view was taken in authority Somnath's case (supra). This authority has gone one step further that separate application by the next friend is necessary under order XXXII Rule XV CPC. 18. In authority Asha Rani's case (supra) this Court has held that RSA No.3815 of 2011 9 Court has to appoint the guardian of a minor or of unsound mind. The said provision has been complied by the trial Court which has not been challenged in the First Appellate Court. So, the appellant cannot have benefit of these authorities 19. So far as authority Suhrid Singh @ Sardool Singh's case (supra) is concerned that authority relates to suit for declaration that sale deed was not binding on the coparcener and consequent relief of joint possession has been sought and under those circumstances it was held advalorem Court fee should be affixed. In the present case, the suit for joint possession has not been sought and as such the above said authority is not applicable to the facts of the present case. 20. So far as the argument that mere suit for declaration is not maintainable without asking relief of possession is concerned that aspect has been duly considered by both the Courts below. The property of the plaintiff and defendant Nos.2 to 6 is joint. The sale deed executed by one cosharer even in respect of specific number would be in respect of share of that cosharer in view of authority Bhartu vs. Ram Sarup 1981 PLJ page 204 relied upon by the trial Court. So, the said objection is also not tenable. 21. Authority Saudagar Singh's case (supra) does not help the appellant as it relates to applicability of Order 22 Rule 3 of the CPC. 22. So far as the statement made by counsel for the appellant that father of the plaintiff was present at the time of execution of the sale deed is concerned that aspect has been considered by both the Courts below. Presence of father does not validate the sale deed on account of unsound RSA No.3815 of 2011 10 mind of the plaintiff. 23. In authority Mahomed Yakub and others' case (supra) it has been held that under Section 12 of the Contract Act, the test of soundness of mind is capable of understanding the business and of forming a rational judgment as to its effect upon his interest. However, in view of the quality of evidence of the plaintiff produced by him that the plaintiff was of unsoundmind, the appellant cannot derive benefit of the said authority. Authorities Ram Sundar Siha and others' case (supra), Tilok Chand Charana Das's case (supra), Sona Bala Bora & Ors' case (supra) and Mst. Lakshmi's case (supra) are also distinguishable on the same ground. 24. In view of the above discussion, all the substantial questions raised above by the learned counsel for the appellant stand determined against the appellant and consequently the regular second appeal is without any merit and the same stands dismissed. 25. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 20, 2011 sv