JASPREET SINGH,J. - (1.) This is the defendant's second appeal. Being aggrieved against the judgment passed by the Additional District Judge, Faizabad dated 16.11.2011, passed in Regular Civil Appeal No.78/2008 by which the first appellate court has set-aside the judgment and decree dated 09.4.2007 by which the regular suit no.200/89 of the plaintiff was dismissed by the trial court. The result is that the suit which was initially dismissed by the trial court was decreed by the first appellate court and it is for the said reason that the defendant has preferred the above second appeal which was admitted by this Court by means of order dated 21.7.2014 on the following substantial questions of law. "i) Whether the learned lower appellate court having formulated only one point on the question of validity of sale-deed as to whether the executant of the sale deed, Dubar was "? ...??? ??? -?" or "???" and having recorded a finding in para 41 that Dubar is not found in any manner to be a man of "?? ??? ?? ???" could decree the suit for cancellation of the alleged sale deed going beyond the same on any other point, and the judgment rendered by the appellate court as such is sustainable in the eye of law? ii) Whether majority of a man or woman has to be determined on the basis of his age counted from his or her date of birth or it is to be determined on the basis of the mental capacity of a man and the decree as such passed by the learned appellate court treating a man of 50 years to be minor is sustainable in the eye of law? iii) Whether Dubar being alleged to be insane from his birth and as per respondent himself being capable to give permission to raise construction over his land to Bhagwan Deen as owner of the same and he could be said to be incapable for executing the sale deed duly executed by him presented before Sub Registrar after due scrutiny and satisfaction endorsing the certificate to that effect?"
(2.) In order to answer the aforesaid substantial questions of law certain facts giving rise to the appeal are being noted first. That the plaintiff-respondents instituted a regular suit before the court of Civil Judge, Senior Division, Faizabad, which was registered as R.S. No. 200/1989. The plaintiffs had sought a relief of cancellation of a sale-deed dated 10.4.1989 executed in favour of the defendant appellants by one Dubar, who was the original plaintiff and he died during the pendency of the proceedings before the trial court. The specific pleadings of the plaintiff were that the plaintiff namely Dubar was of unsound right from his childhood and was illiterate and unmarried. The suit was filed by his brother namely Bhagwandeen and it was pleaded that it was Bhagwandeen who used to take care of Dubar including his well being as well as for his meals and residence. Bhagwandeen in the capacity of his elder brother and as care taker used to take care of the property of Dubar which also included the agricultural land which was inherited by both Dubar and Bhagwandeen from their father Vasudev. It was also pleaded that since the plaintiff Dubar was of extremely low intellect from his childhood he had no means of ascertaining what is good or bad for him and he used to loiter around. In paragraph 4 of the plaint it was specifically pleaded that when the consolidation operations commenced in the village and as the plaintiff was of a weak intellect, consequently, the brother of the plaintiff represented Dubar in the consolidation proceedings before the Consolidation officer where Dubar was declared as a person of unsound mind and Bhagwandeen was appointed as his next friend/ guardian. It was further pleaded that the property in question is situate on the main road and since it had the house belonging to the plaintiff and Bhagwandeen where both the brothers were residing, however, the defendant no.2 who belongs to different caste and being a clever person had attempted to grab the said property and with the aforesaid in mind he misguided the plaintiff Dubar on the plea that they wanted to get his name included in the property in question and by luring him they abducted Dubar. Since Dubar did not return home, therefore, Bhagwandeen, his brother made a complaint to the Superintendent of Police stating that his brother was missing and it was apprehended that he had been abducted and murdered. In view thereof there was a lot of commotion in the village and this matter also received attention of a section of the print media. It was further stated that when the defendants became aware that there was so much of activity regarding Dubar being missing, therefore, the defendants took Dubar to an unknown place and released him. When Dubar returned on 10.4.1989 he revealed that the defendants had got his thumb impressions on some blank papers and thereafter upon inspection made by Bhagwandeen it revealed that the defendants have got a sale-deed executed from Dubar in respect of the property in question. It was stated in paragraph 20 that the sale deed dated 18.4.1989 was a void document inasmuch as it was executed by a person of unsound mind. It was further stated that no sale consideration exchanged hands. The stamp duty was not purchased by the plaintiff and the thumb impressions on the aforesaid stamp papers were forcibly taken by the defendants in whose favour the sale deed was executed and for all the reasons the sale deed was void and deserved to be cancelled.
(3.) The defendant no.1 to 3 contested the suit by filing its written statement. It specifically took the plea that Dubar was a person of normal intellect and was not a person of unsound mind. It also denied the fact that in the consolidation proceedings Dubar was declared as insane. In paragraph 27 it raised the question that since Dubar was a person of normal intellect, therefore, in the circumstances his brother Bhagwandeen was not entitled nor had the authority to file the suit as next friend. They primarily submitted that the plaintiff was the recorded tenure holder whose name was duly recorded in the revenue records and in none of the revenue records it was indicated that Dubar was of unsound mind and that he is represented by his next friend. Considering the aforesaid the sale-deed was executed after paying lawful consideration and as such the premise upon which the sale-deed is sought to be cancelled was denied. All the allegations regarding the abduction of Dubar etc were denied. It is in light of the pleadings delivered by the parties the trial court framed seven issues. The important issues were issue no.1 which related to the fact whether the sale deed dated 10.4.1989 was liable to be cancelled in light of the averments made in the plaint. Issue no.5 whether in terms of order 32 rule 2 the suit of the plaintiff was maintainable without Bhagwandeen being adjudged as guardian-ad-litum and issue no.6 whether Bhagwandeen had the right to institute the suit as next friend, if yes, its effect. The parties led their evidence in support of their respective case and in furtherance thereof the plaintiff Bhagwandeen examined himself as PW-1, one Agya Ram as PW-2, Sati Prasad as PW-3 and Dr. Harjeet Singh as PW-4. On the other hand, the defendant examined Kamta Prasad as DW-1, Vijay Bahadur as DW-2 and Bans Raj as DW-3. The trial court considered issue no.1 and it dedicated itself to ascertain whether the mental condition of Dubar was normal or whether he was a person of unsound mind. It is solely with the idea of ascertaining the mental status and condition of Dubar that the trial court has considered the evidence including the evidence of the Dr. Harjeet Singh, the medical expert, who was produced and thereafter it came to the finding that it was not established that Dubar was a person of unsound mind. The trial court dismissed the suit by means of Judgment and decree dated 31.5.2018. ;