1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 211 OF 2008 (Sitaram Raghobaji Satpute & another .v. Prabhakar Yadaorao Upadhye & ors) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri Shashikant Borkar, Advocate for the appellants. Shri V.B. Palorkar, Advocate for the respondents. CORAM : SMT. VASANTI A. NAIK, J. 18TH JUNE, 2008. Heard the learned Counsel appearing on behalf of the respective parties. By this Second Appeal, the appellants challenge two concurrent judgments passed by the trial as well as appellate Court dismissing the suit filed by the appellants and decreeing the suit of the plaintiff for a declaration that the affidavit-cum-transfer deed dated 06.01.1989 is inoperative and the sale deed dated 09.01.1989 executed by the defendant No.3 in favour of the defendant Nos.1 and 2, be cancelled. The plaintiff, Prabhakar has sued through his wife Mrs. Kamal who is his next friend. According to the plaintiff – Prabhakar, the plaintiff was the owner of land Survey No.187/2 and the defendant No.3/Sudhakar, who is his real brother, was the owner of the land Survey No.188/2. It was the case of the plaintiff that the plaintiff and the defendant No.3 had got these properties in 2 partition and they were in possession of their respective lands. The defendant Nos.1 and 2 started disturbing the peaceful possession of the plaintiff on land Survey No.187/2 and, therefore, the plaintiff instituted the suit for declaration and cancellation of sale deed as he was informed by the defendant Nos.1 and 2 that they had purchased the land Survey No.187/2, which is the suit property, vide registered sale deed dated 09.01.1989 from the defendant No.3/Sudhakar for a valuable consideration of Rs.20,000/-. The defendant Nos.1 and 2 denied the claim of the plaintiff. the defendant No.3, however, did not file any written statement. It was pleaded by the defendant Nos.1 and 2 that both, the plaintiff and the defendant No.3/Sudhakar, had approached the defendant Nos.1 and 2 and told these defendants that the plaintiff was in possession of land Survey No.187/2 and that the plaintiff and the defendant No.3 had amicably exchanged their respective lands bearing Nos.187/2 and 188/2 and in view of the exchange, the defendant No.3 had become the owner of the suit land i.e. Survey No.187/2 and the plaintiff had become the owner of field Survey No.188/2. In view of the exchange of the lands between the plaintiff and the defendant No.3, it is the case of the defendant Nos.1 and 2 that they purchased the suit land bearing 3 field Survey No.187/2 from the defendant No.3/Sudhakar. According to the defendant Nos.1 and 2 since the lands were already exchanged between the brothers, the defendant No.3 was competent to sell the field Survey No.187/2 to the defendant Nos.1 and 2. After considering the evidence on record, the trial Court held that the plaintiff proved that the transfer/exchange deed dated 06.01.1989 was invalid. The Court further held that the plaintiff succeeded in proving that the sale deed dated 09.01.1989 was also invalid as the defendant No.3 did not have title to field Survey No.187/2 and, therefore, cancelled the same. The Court also held that the plaintiff was entitled to institute the suit against the defendants through his next friend. Consequently, a decree of declaration possession was granted in favour of the plaintiff. While deciding the aforesaid issue, the trial Court also considered the issue as to whether the plaintiff was incompetent to execute the transfer deed and answered the same in negative to hold that the plaintiff was competent to execute the transfer deed. The judgment passed by the trial Court was challenged by the defendant Nos.2 and 3 in an appeal. The first appellate Court maintained all other findings recorded by the trial Court except one about the 4 incompetency of the plaintiff to execute the transfer or exchange deed 06.01.1989. The first appellate Court held that the plaintiff had succeeded in proving that he was incompetent to execute the document dated 06.01.1989. since both the Courts recorded the findings against the defendant Nos.1 and 2 and decreed the suit of the plaintiff, both, for declaration and possession, the present appeal has been filed by the defendant Nos.1 and 2. It is submitted on behalf of the appellants by the learned Counsel that the plaintiff could not have sued through his next friend i.e. his wife in view of the fact that he had not proved his lunacy or mental illness and no issue in that regard was framed either by the trial Court or the appellate Court. It was then submitted on behalf of the appellants that the trial Court had held that the plaintiff was competent to execute the transfer or the exchange deed dated 06.01.1989 and having held so the Court ought to have dismissed the suit of the plaintiff as in view of the document dated 06.01.1989 the fields of the plaintiff and the defendant No.3 were exchanged amongst themselves and the defendant No.3 was, therefore, competent to sell field Khasra No.187/2 to the defendant Nos.1 and 2. The learned Counsel for the respondent No.1, 5 however, supported the judgment passed by the first appellate Court and submitted that the Second Appeal is liable to be dismissed as no substantial question of law is involved in the same. I have perused both the judgments. A perusal of both the judgments shows that categorical finding of fact has been recorded by the first appellate Court that the plaintiff was incompetent to execute the transfer/ exchange deed in the year 1989 and the evidence produced by the plaintiff clearly shows that the plaintiff was suffering from mental illness since the year 1974 and was ultimately relieved from service with effect from 08.09.1988. The appellate Court further observed that there was ample evidence on record to hold that Prabhakar was suffering from mental illness and since the object of Order 32 of the Code of Civil Procedure safeguards and protects the interest of persons of unsound mind, it was permissible for the plaintiff to file a suit through his next friend, his wife. The appellate Court held that there was nothing on record to disbelieve the evidence of the Senior Clerk in Zilla Parishad that Prabhakar was not discharging his duties properly in view of his mental illness and after he was referred to Medical Board on 13.09.1988, in view of the certificate of the Board in regard to the mental illness of 6 Prabhakar, Prabhakar was relieved from service with effect from 08.09.1988. A perusal of both the judgments clearly shows that though the issue about the mental illness of Prabhakar was not specifically framed by both the Courts, both the parties were clearly alive to the said issue involved in the case and also tendered evidence on the same. Both the Courts have also considered the evidence tendered by the parties on the aforesaid issue and though an issue was not framed by the Courts to the aforesaid effect, both the Courts had recorded their findings in regard to the same. The trial Court did not hold that the plaintiff was suffering from mental illness. The appellate Court had recorded a categorical finding about the mental illness and incapacity of the plaintiff and also about the import of the provisions of Order 32 of the Code of Civil Procedure. Be that as it may, the case of the defendant Nos.1 and 2 did not have a firm leg to stand on as according to the defendant Nos.1 and 2, the defendant No.3/ Sudhakar was the owner of the suit property and was clearly competent to execute the sale deed in respect of the same in favour of the defendant Nos.1 and 2 on the basis of an exchange deed executed between the two brothers since the exchange deed, as rightly held by the first appellate Court did not have the effect of 7 transferring the suit property in favour of defendant No.3/Sudhakar as a transfer even by mode of exchange can be made by a registered document only. In the instant case, it is an admitted position that the exchange deed on which the defendant Nos.1 and 2 have based their claim for having purchased the property from Sudhakar was not a registered one. In the result, the property of plaintiff/ Prabhakar i.e. suit property could not be said to have been transferred to Sudhakar in terms of the exchange deed which was not registered. The plaintiff, therefore, succeeded in proving that Sudhakar had no authority to sell the property of the plaintiff to defendant Nos.1 and 2 and the sale deed executed in favour of defendant Nos.1 and 2 was void and was not binding on the plaintiff. No fault can be found with the findings of first appellate Court which are based on a proper appreciation of the material evidence on record. Since no substantial question of law arises for consideration in this Second Appeal, the same is dismissed with no order as to costs. JUDGE *rrg.