VINOD K.SHARMA,J - (1.) THE present regular second appeal has been filed against the judgment and decree passed by the learned lower appellate Court vide which judgment and decree passed by the learned Sub Judge Ist Class, Palwal, was reversed and suit filed by the plaintiff respondent was ordered to be decreed.
(2.) THE plaintiff had instituted a suit for declaration to the effect that the alleged three mortgages for Rs. 5,500/- (Rs. five thousand and five hundred only) each alleged to have been executed in favour of defendant on or about 5.12.1977 are void and not binding against the rights and title of the plaintiff in the suit lands described in para No. 1 of the plaint. It was further claimed that plaintiff was the lawful owner with cultivating possession of his half share of agricultural land. As a consequential relief, a decree for injunction restraining the defendants from interfering in the possession it was claimed that in case the defendants succeeds in obtaining possession on the basis of alleged mortgage deeds the relief of possession be granted in the alternative in favour of the plaintiff respondent. The plaintiff-respondent claimed that he was owner in possession of half share of agricultural land measuring 74 kanals 8 marlas situated in the revenue estate of village Sondhad, described in para 1 of the plaint. It was claimed that the plaintiff before December, 1877 as well as during and after the said month was suffering from insanity and madness and, therefore, was incapable to make any valid contract during the said period. It was further claimed that plaintiff took undue advantage of the mental deficiency and asked the wife of the plaintiff to send him to the office of the Tehsildar so as to get him admitted in some Govt. hospital for treatment at the Govt. expenses. It was claimed that in view of the aforesaid fraudulent misrepresentation to the wife of the plaintiff she was induced to send the plaintiff to the office of Tehsildar with the defendant with the objective of obtaining recommendation letter from the Tehsildar for the admission of the plaintiff in some Govt. mental hospital. It was further claimed that on the basis of the said fraudulent misrepresentation the plaintiff respondent was taken to the Tehsil premises on 5.12.1977 and three mortgage deeds under challenge were got executed in favour of defendant without consideration. Thus, it was claimed that these mortgage deeds were void ab initio and non est. It was also claimed that suit land is ancestral property in the hands of the plaintiff and it could not be alienated without legal necessity. It was pleaded that plaintiff was governed by the agricultural custom in the matter of alienation of agricultural land as according to custom no one could sell agricultural land without legal necessity. The plaintiff after having recovered from the mental illness filed the suit. The suit was contested by the appellant with a preliminary objection that the suit was not maintainable as it was under valued for the purpose of Court fee and jurisdiction. Plea of estoppel was also taken. It was further claimed that it was not open to the plaintiff to challenge the mortgage as the same was for legal necessity and further the property was not ancestral. On merit, the assertions of the plaintiff were denied. It was claimed that the transaction entered into between the plaintiff and defendant was on account of his free will and consent and the same are binding on the plaintiff. It was further claimed that according to custom the owner could mortgage his land for necessity. On the pleadings of the parties, following issues were framed :- 1. Whether the three mortgage deeds dated 5.12.1977 were got executed from the plaintiff by the defendant by practicing fraud on him and the same are void and not binding on the plaintiff ? OPP 2. Whether the plaintiff was not of sound and disposing mind at the time of execution of the impugned mortgage deeds ? OPD 3. Whether the suit is not maintainable in the present form, as alleged ? OPD 4. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction ? OPD 5. Whether the plaintiff is estopped from filing this suit by his acts and conduct ? OPD 6. Whether the impugned mortgage deeds were validly executed for consideration and legal necessity by the plaintiff ? OPD 7. Relief.
(3.) THE learned trial Court decided issue Nos. 1, 2 and 6 together against the plaintiff and consequently dismissed the suit by holding that the plaintiff- respondent had failed to prove his mental ailment and furthermore the execution of the mortgage-deed was duly proved on the record. The learned trial Court also took into account the law that presumption of truth is attached to the official record and, therefore, the registration of document could not be said to be bad and consequently dismissed the suit. On appeal being filed by the appellant, the Addl. District Judge, Faridabad reversed the finding recorded by the learned trial Court on issue Nos. 1, 2 and 6 and decreed the suit. The finding on issue Nos. 1, 2 and 6 as recorded by the learned lower appellate Court reads as under :- "8. Issue Nos. 1, 2 and 6 were decided together by the learned trial Court against the plaintiff. The learned trial Court has found that the evidence did not show that at the time of execution and registration of the mortgage-deeds, Ex. D-1 to Ex. D-3, the plaintiff was of unsound mind. It was also found that the plaintiff had failed to prove that the mortgage-deeds in question were got executed from him fraudulently and without consideration. The case of the plaintiff is that he was suffering from insanity and madness even before December, 1977, and was not of disposing mind due to mental deficiency and that the defendant approached the wife of the plaintiff, who was an illiterate lady, to send the plaintiff so that he could apply to the Tehsildar to get him admitted in some Government mental hospital for treatment at Government expenses and that on 5.12.1977, the wife of the plaintiff sent the plaintiff along with the defendant for obtaining recommendation from the Tehsildar, but the defendant got executed the mortgage-deeds, Ex. D-1 to D-3 (copies Ex. P-3 to P-5) fraudulently from the plaintiff, who was not in a position to enter into a valid contract on account of insanity and madness and that no amount was paid to the plaintiff by the defendant on the basis of the alleged mortgage-deeds, Ex. D-1 to D-3. PW-2 Raghbir Singh plaintiff and PW-5 Smt. Nathia wife of the plaintiff have deposed in this respect, when they appeared in the witness box. In the mortgage-deeds, Ex. D-1 to D-3, it is recited that each document was executed for Rs. 5,500/- on 5.12.1977 and that no amount was paid before the Sub-Registrar on the ground that the mortgage amount had already been received by the plaintiff. The question that arises for determination is whether the plaintiff was of sound disposing mind on 5.12.1977 or not. PW-4 Som Dutt Ayurvedic Doctor has proved the certificate Ex. PW-3/A and stated that the plaintiff remained under his treatment since 1.8.1977 and that he had made an entry regarding the same in his register at serial No. 1075. He further stated that he examined the plaintiff for the last time on 30.12.1977 vide entry No. 1519 made in his register and advised that the plaintiff should be got treated from some Government Mental Hospital. PW-1 Doctor S.N. Dev, Psychiatrist, Mental Hospital because the plaintiff was suffering from madness. In the certificate, Ex. PW3/A dated 30.12.1977, it is recited that the plaintiff remained under the treatment of PW-4 Doctor Som Dutt since 1.8.1977, but from 22.11.1977 his condition became serious due to mental deficiency and insanity and the advice was given that the patient should be got treated from some Government Mental Hospital, Shahdra Delhi, stated that O.P.D. Card Ex. P-1, had been issued by his department under the signatures of Doctor Miss J. Devi, whose signatures and handwriting he identified, and that she was working with him in the same hospital. He further stated that he had brought the OPD Register of the Hospital and that mentally deranged persons are treated in the said hospital and that according to OPD Card the treatment to Raghbir plaintiff was given for mental ailment. Ex P-1 is the OPD Card of the plaintiff, which shows that the plaintiff was treated in this Hospital from 3.1.1978 to 24.1.1978 due to mental ailment. The testimony of PW-4 Doctor Som Dutt and RW-1 Doctor S.N. Dev as well as the recitals made in the documents, Ex. DW-3/A and P-1, therefore, go to show that the plaintiff was suffering from insanity during the period 1.8.1977 to 24.11.1978 and that he remained under the treatment of Doctor Som Dutt upto 30.12.1977 and, thereafter, was advised that he should be got treated from Government Mental Hospital, due to which he remained under treatment in Shahdra Mental Hospital for the period 3.1.1978 to 24.1.1978. PW-4 Doctor Som Dutt has clearly mentioned in the certificate Ex. PW-3/A that the condition of the plaintiff became serious on 22.11.1977 due to insanity and he advised that the patient should be got treated from Government Mental Hospital. The said advice was given by the Doctor on 30.12.1977, when he issued the certificate Ex. PW-3/A. Consequently, from 22.11.1977 to 30.12.1977, the plaintiff was not of sound mind, but, on the other hand, he was suffering from mental ailment, due to which Doctor Som Dutt was compelled to stop his treatment and advised that the patient should be taken to some Government Mental Hospital for treatment. The treatment of the plaintiff thereafter continued in Shahdra Government Mental Hospital, as mentioned above. Consequently, on 5.12.1977 the plaintiff was not in a fit condition to execute the alleged mortgage-deeds, Ex. D-1 to D-3, because he was suffering from serious mental ailment. PW-4 Doctor Som Dutt and PW-1 Doctor S.N. Dev are Experts in mental ailments and their testimony cannot be discarded because they had no motive to make false statements. The learned trial Court has not considered the testimony of PW-1 Doctor S.N. Dev on the ground that the plaintiff did not remain under his treatment and that the entries in the register were not made by the Doctors. There is no reason to reject the testimony of PW-1 Doctor S.N. Dev because he clearly deposed that OPD card was issued from his department under the signatures of Doctor Miss J. Devi. PW-1 Doctor S.N. Dev is Psychiatrist, Mental Hospital, Shahdra, Delhi and a number of Doctors must be working under him. The entries in the registers as well as in the OPD Cards giving the names of the patient etc. are not made by the Doctors themselves, but, on the other hand, these entries are made by the Clerk concerned and the Doctor only prescribes the medicines, when the patient is examined by him. Under these circumstances, when the Incharge of the concerned department appeared in the witness-box to prove the OPD Card and he brought the relevant register etc., there is no reason to discard his testimony when he clearly stated that the plaintiff was given mental ailment treatment. In any case, the crucial date of decide the fate of the case is 5.12.1977 and on that date, the plaintiff was under the treatment of PW-4 Doctor Som Dutt, whose certificate Ex. PW-3/A, clearly shows that the plaintiff was suffering from serious mental ailment on this date as well because the condition of the patient became serious with effect from 22.11.1977 and continued to be so till 30.12.1977 when he issued the certificate Ex. PW-3/A and advised that the patient be got treated from Government Medical Hospital. He started making entries regarding the plaintiff in his register with effect from 1.8.1977 and his register has been retained in Court. The plaintiff has thus led oral as well as documentary evidence to prove that he was not of unsound disposing mind on 5.12.1977. The oral testimony of DW-3 Chhaju defendant and DW-4 Kishan Ram to the effect that the plaintiff was in senses, when mortgage-deeds, Ex. D-1 to D-3 on 5.12.1977 were executed, therefore, cannot be accepted. The learned trial Court has believed the testimony of DW-2 Shri Gurbux Singh, Sub-Registrar, on the ground that he registered the document on the identification of Lambardar Kishan Ram DW-4, who was personally known to the Sub-Registrar. It appears that the testimony of DW-2 Shri Gurbux Singh has been accepted due to inadvertence because this witness stated that Kishan Ram Lambardar DW-4 had identified the plaintiff, but he did not know Kishan Ram Lambardar personally. The Sub-Registrar did not know the plaintiff personally nor he knew Kishan Ram Lambardar DW-4 personally and, consequentially, the testimony of DW-4 Shri Gurbux Singh Sub-Registrar does not help the defendant. It may also be mentioned that the plaintiff examined Tulla Ram PW-3, who stated that the plaintiff was suffering from insanity. He further stated that the defendant brought the plaintiff in his presence from the wife of the plaintiff on the pretext of getting the plaintiff treated. Under these circumstances, the evidence led by the plaintiff goes to prove that the plaintiff was not of sound and disposing mind on 5.12.1977, when the alleged mortgage-deeds, Ex. D-1 to D-3, were executed/registered and further that the plaintiff was taken by the defendant from the wife of the plaintiff on the pretext that he would obtain a letter of recommendation from the Tehsildar so that the plaintiff could get free treatment from Government Mental Hospital. ;