IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 RSA.No. 823 of 2008(F) --------------------- AS.16/2006 of SUB COURT, PALA OS.231/2003 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANT/APPELLANT/DEFENDANT:- ------------------------------------------- JAMES T.JOY, AGED 33 YEARS, S/O.K.C.THOMAS, KAKKAPARA HOUSE, MANIMALA KARA, MANIMALA VILLAGE, KANJIRAPPALLY TALUK, REPRESENTED HEREIN BY HIS NEXT FRIEND AND FATHER MR.K.C.THOMAS, S/O.CHACKO, KAKKAPARA HOUSE, MANIMALA KARA, MANIMALA VILLAGE, KANJIRAPPALLY TALUK. BY ADV. SRI.K.R.VINOD RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------------------- O.N.HARIDAS, AGED 54 YEARS, S/O.NARAYANA PILLAI, ULAKU HOUSE, CHIRAKKADAVU VILLAGE, VADAKKUMBHGOM KARA, KANJIRAPPALLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 823 of 2008 ========================= Dated this the 19th day of January, 2009. JUDGMENT The sole defendant in O.S. No. 231 of 2003 on the file of the Munsiff's Court, Kanjirappally is the appellant in this Second Appeal. The said suit instituted by the respondent herein was one for specific performance of Ext.A1 agreement dated 03.01.2002 executed between the plaintiff and the defendant as per which the defendant agreed to sell the plaint schedule property admeasuring 50 cents of land for a total consideration of Rs. 70,000/- after receiving an advance of Rs.60,000/-. The plaintiff alleged that even though the plaintiff was ready and willing to perform his part of the contract, the defendant failed to execute the sale deed, that thereafter on 24.06.2002, the plaintiff issued the original of Ext. A2 lawyer notice calling upon the defendant to perform his part of the contract. A reply had been sent to the said notice raising untenable contentions. Hence the suit. 2. Pending suit, as per order passed in I.A. No. 1230 of 2003, the father of the defendant was appointed as his guardian. The defendant's father filed a written statement R.S.A.No. 823/2008 : 2 : raising inter alia the following contentions:- The plaintiff has no cause of action against the defendant. The defendant has not executed Ext.A1 agreement for sale in favour of the plaintiff as alleged nor has he received any amount by way of advance. From November, 2000 onwards the defendant is a mental patient and is undergoing treatment in a hospital. He was not of sound mind and was therefore incompetent to contract in the year 2000. He had borrowed Rs.25,000/- from the plaintiff and as demanded by the plaintiff, he had entrusted signed blank papers and blank white papers and two blank cheque leaves of Federal Bank Ltd. All the said documents were signed by the defendant. The defendant had also entrusted with the plaintiff photocopy of document No. 5019/1984. The plaint schedule property will fetch Rs.4 lakhs. The defendant had paid a sum of Rs.21,500/- by way of interest. Since the defendant defaulted in repaying the principal amount, the plaintiff had concocted Ext.A1 agreement for sale. The defendant has never tried to alienate the plaint schedule property. The plaintiff is not entitled to any of the reliefs prayed for. R.S.A.No. 823/2008 : 3 : 3. The trial court framed five issues for trial of which issue No. 1 was whether the defendant had executed Ext.A1 agreement for sale and whether the same was supported by consideration? 4. On the side of the plaintiff, he examined himself and the scribe of Ext.A1 agreement as PWs 1 and 2 and Exts. A1 to A3 were marked. On the side of the defendant, his father was examined as DW1 and Ext. B1 Photostat copy of the medical certificate was marked. Ext.X1 case sheet from the Sacred Heart Hospital, Kayamkulam was summoned at the instance of the defendant/appellant. 5. The learned Munsiff, after trial, as per judgment dated 09.12.2005 decreed the suit for return of the advance money of Rs.60,000/- with interest at the rate of 6% with a charge on the plaint schedule property. On appeal preferred by the defendant/appellant as A.S. No. 16 of 2006, the Sub Court, Pala has, as per judgment and decree dated 25.03.2008 dismissed the appeal. Hence this Second Appeal. 6. The following are the questions of law formulated in the memorandum of Second Appeal:- R.S.A.No. 823/2008 : 4 : 1. Whether the court is bound to raise an issue in a suit when the defendant contented through his guardian that he is mentally sick person having no mental capacity to understand the facts or to execute any document? 2. Whether the court can appoint a guardian for and on behalf of a mentally sick person without conducting a judicial enquiry under Order 32 Rule 15 of the Code of Civil Procedure to find out that whether such person is incapable of protecting his interest either by reason of unsoundness of mind or intellectual incompetence due to mental infirmity? 3. Whether the court is justified in passing a decree against a mentally sick person without framing an issue regarding his mental incapability in spite of a specific contention made before the court? 7. The learned counsel appearing for the appellant/defendant made the following submissions before me in support of the appeal:- When the trial court had appointed a guardian after an enquiry under order 32 Rule 15 C.P.C during which the doctor who issued the original of Ext.B1 medical certificate and who had treated the defendant as evidenced by Ext.X1 case sheet was examined and the doctor has stated that the defendant has been under his treatment from 26.11.2001 for schizo affective psychosis. The said evidence adduced during the enquiry under Order 32 rule 15 C.P.C was sufficient to prove that the defendant was non compos mentis on the date of R.S.A.No. 823/2008 : 5 : Ext.A1 agreement and therefore the courts below were not justified in holding that the aforesaid defence set up by the appellant has not been substantiated. The Stamp papers for Ext.A1 agreement has been purchased in the year 2001 and the year has been corrected as 2002. Moreover, no sensible person would pay such a large amount of Rs.60,000/- as advance towards the total consideration of Rs.70,000/-. The papers entrusted by the defendant with the plaintiff while availing of a loan of Rs.25,000/- in the year 2000 has been misused by the plaintiff to prepare Ext.A1 agreement. 8. I am afraid that I cannot agree with the above submissions. The testimony of the plaintiff examined as PW1 and that of PW2, the scribe of Ext.A1 agreement for sale proves the plaint allegation regarding the execution of Ext.A1 agreement by the defendant on 03.01.2002. As against this, the written statement filed by the defendant's father on behalf of the defendant was that the defendant was a mentally unsound person unable to enter into a contract during the date of Ext.A1 agreement. Except the highly interested testimony of DW1, the father of the defendant, no other evidence was R.S.A.No. 823/2008 : 6 : adduced on the side of the defendant. The enquiry conducted by the trial court in I.A. No. 1230 of 2003 was only for the limited purpose of deciding whether a guardian was liable to be appointed for the defendant. That cannot constitute the evidence in the case with regard to the issues on which the parties went to trial. No satisfactory evidence was adduced during trial regarding the alleged incapacity of the defendant to enter into Ext.A1 contract. Dr. Angel Mary of Sacred Heart Hospital, Painkulam who had allegedly issued the original of Ext.B1 certificate, was not examined during trial. The plaintiff was deprived of an opportunity to cross examine the doctor and elicit material evidence through the doctor. Ext.X1, the treatment chart pertaining to the defendant in the said hospital and Ext.B1 Photostat copy of the medical certificate were marked through DW1, the father of the defendant and not through the doctor who had allegedly treated the defendant. Since the testimony of DW1 was not sufficient to hold that the defendant was disabled by reason of unsoundness of mind from executing Ext.A1 contract, even if it could be assumed that the defendant was suffering from R.S.A.No. 823/2008 : 7 : schizo affective psychosis, it has not been shown that the said ailment would disable him from entering into the transaction in question. The so called loan transaction set up in the written statement and the repayment of the loan allegedly in the year 2000 also was not proved through evidence. Except the interested testimony of DW1, no independent witness was examined to prove any of the contentions raised in the written statement. On the contrary, the attempt was to show that Ext.A1 agreement for sale was a forged document by making use of the blank signed papers given to the plaintiff at the time of availing of an anterior loan. If as a matter of fact, the plaintiff wanted to fabricate a document to substantiate his case, he could have done that by forging a document giving no room for suspicion. The so called correction of the year in the stamp paper used for Ext.A1 document or the dissimilarity in the signature etc. are not sufficient to disprove the execution of Ext.A1 the execution of which has been proved not only by PW1 but also by PW2, the scribe. The finding recorded by the courts below that Ext.A1 was duly executed by the defendant, is a pure finding of fact. Instead of directing R.S.A.No. 823/2008 : 8 : the defendant to execute the sale deed in specific performance of the contract, the trial court in its discretion has only directed return of the advance amount in exercise of the discretion under Section 20 of the Specific Relief Act. The lower appellate court has confirmed the said verdict. I do not think that the discretion has not been properly exercised by the courts below. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. 10. The appellant is given two months' time to deposit the amount before the Executing Court, failing which it shall be open to the Executing Court to proceed against the plaint schedule property in execution of the charged decree against him. Dated this the 19th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A.No. 823/2008 : 9 : R.S.A.No. 823/2008 : 10 :