K P PAKKIRISWAMY MUDALIAR Vs. K P KRISHNASWAMY MUDALIAR

JUDGEMENT

(1.) THE plaintiff in O. S. No. 675 of 1957 on the file of the City Civil Court. Madras. whose suit was dismissed by the learned IV Assistant Judge on a preliminary point is the appellant before this court. The plaintiff and the first defendant are brothers, they being the sons of one Parthasarathi Mudaliar, who died in 1945. The 16th defendant is the widow of the deceased Parthasarathi Mudaliar while the 9th defendant is the daughter of the deceased. The suit was instituted by the plaintiff in forma pauperis for declaration that certain alienations of properties belonging to the joint family effected by the first defendant are null and void and not binding upon him and for partition and separate possession of his one-third share in all items of the properties except arable lands and one half share in arable lands. The case of the plaintiff was that the ancestral business was one in yam in Kotwal bazar and the properties were acquired out of the income from that business and that the first defendant who, after the death of their father became manager of the joint family got into evil ways and for the purpose of meeting his illegal and immoral desires he borrowed liberally and alienated the properties. The further case of the plaintiff was that the first defendant started a new business in horse trade in which he had no experience whatever which also ended in loss and the first defendant happened to borrow money from Multani money lenders at usurious rates of interests and it is for the purpose of discharging the debts so incurred he had to alienate the properties of the family. Defendants 5, 6, 11, 12 and 13 are the mortgagees of certain items of the properties while defendants 7, 8, 9, 14 and 15 are purchasers of certain other properties. The fifth defendant filed a written statement contending that the alienations were for binding purposes and for family necessity and consequently binding on the plaintiff. If may be mentioned in this context that one other ground urged by the plaintiff in the plaint to which detailed reference will be made hereafter was that he was a man of weak understanding, incapable of looking after himself and manage his affairs and that was taken advantage of by the first defendant in alienating the properties. It is for the very same reason, the plaintiff sought the leave of the court to institute the suit by his next friend, namely, his wife Padmavathi Ammal and that prayer was also granted by the trial court. With reference to this allegation the fifth defendant repeatedly contended in the written statement that the plaintiff executed the documents not only on his behalf but on behalf of his minor sons also and his allegation in the plaint that he was of defective understanding and an imbecile and therefore the first defendant had a free hand in the management of the joint family properties of the family was untrue. She contended again in paragraph 9 of the written statement that the plaintiff was never mentally infirm or defective in understanding and he joined in all the mortgages and other documents executed by the first defendant. She elaborated this in paragraph 11 of the written statement contending that the allegations in the plaint that the plaintiff had always been incapable of protecting his interests or that he was defective in understanding and incapable of acting for himself or on behalf of his minor children or of entering into any contractual obligations were absolutely false and invented only for the purpose of defrauding and cheating the creditors of the family including the fifth defendant; it is also false to say that the first defendant obtained the plaintiff's signature to the mortgage executed in favour of the fifth defendant while the plaintiff was of defective understanding; the plaintiff had been and was perfectly sane and capable of understanding and entering into contractual obligations; the plaintiff had executed the mortgage in favour of the fifth defendant of his own free will and consent and in full possession of his senses understanding the real nature and import of the document he was executing and he also appeared before the Sub-Registrar of Sowcarpet admitted execution of the mortgage deed and also registered it and the Sub-Registrar would not have registered the mortgage under Section 35 of the Indian Registration Act if the plaintiff was really a lunatic or an idiot. In support of this case the fifth defendant also contended that the plaintiff had executed and registered a number of other documents in favour of other persons. On the pleadings, the learned trial Judge framed the necessary issues and as a matter of fact the next friend of the appellant was examined as P. W. 1. At that stage the fifth defendant in the suit came forward with an application to file an additional written statement raising a new plea. In the affidavit filed in support of this application the fifth defendant had stated that she was advised to state that even on the allegations in paragraphs 3, 6 and 13 of the plaint the suit for partition was not maintainable under Hindu law. The additional defence sought to be taken was that on the allegations in paragraphs 3, 6 and 13 of the plaint, that the appellant is a person of defective understanding and an imbecile and as such incapable of protecting his own interest which allegations, however, the fifth defendant denied the appellant was not entitled to file the suit for partition claiming his share in the joint family properties. This application was allowed and an additional issue was framed by the trial Judge as follows: "is the plaintiff's suit not maintainable as contended by the fifth defendant in his (?)- (her) additional written statement?" by agreement of parties, the additional issue so framed was agreed to be argued as a preliminary issue and on this point the learned trial Judge held against the appellant on first May 1961 and in view of this, he dismissed the suit. Hence the present appeal by the plaintiff in the suit.

(2.) AS pointed out already, the additional issue was framed and the additional defence was taken solely on the basis of the averments contained in paragraphs 3, 6 and 13 of the plaint and admittedly no evidence whatever was let in by the fifth defendant to substantiate the defence taken by her in the additional written statement and at the stage when the additional written statement was filed the wife, the next friend of the appellant was in the process of being examined. Consequently it is necessary to examine the averments contained in paragraphs 3, 6 and 13 of the plaint to find out whether the fifth defendant was justified on the basis of those averments in putting forward the contention that the suit itself was not maintainable since the appellant was not maintainable since the appellant was not entitled to claim partition. In paragraph 3 of the plaintiff-appellant is a person of defective understanding and an imbecile and as such incapable of protecting his own interest. In paragraph 6 the relevant allegation is that as the plaintiff was defective in understanding and an imbecile, the first defendant had a free hand in the management of the family business and properties. In paragraph 13 the averment was that the plaintiff his interest; on account of his defective understanding he was incapable of acting for himself or on behalf of his minor children or entering into contractual obligations; while he was in such a condition the first defendant appeared to have obtained the plaintiff's signature to the documents detailed in paragraphs 9 and 10 and the plaintiff never understood the real nature and import of the said documents to which his signature were taken and in no sense was a contracting or a consenting party to the said documents either on his own behalf or on behalf of his minor children.

(3.) BEFORE we refer as to what we understand from those averments in the plaint it is necessary to refer to the legal ground urged in support of the plea of non-maintainability of the suit. The contention that was put forward and accepted by the trial Court was that under the Hindu Law a congenital idiot or lunatic was not entitled to inheritance or obtain a share in joint family property and even if the lunacy or idiocy is supervening the person concerned is incapable of instituting a suit for partition. Therefore, we have to consider whether the averments to which we have made reference (in paragraphs 3, 6 and 13 of the plaint) contain any statement to indicate or show that the appellant herein was a cogenital idiot or a lunatic or if that is not established from the averments, whether the appellant can be said to be a person suffering from supervening lunacy and therefore, in law disqualified from instituting the suit for partition. Before us, reliance has been placed upon Exs. A-12 and A-14, two of the certificates issued by the Superintendent of the Government Mental Hospital Madras with regard to the condition of the appellant. As far as Ex. A-12 is concerned, it is dated 8-10-1956 and the certificate itself points out that the Superintendent who granted the certificate examined the appellant who was aged 28 on 8-10-1956 and on the basis of that examination granted the certificate. The certificate after pointing out that the appellant was unable to walk upto his seventh year of age began to talk only when he was 12 years old and used to talk and he talked in Monosyllables and his gait was shabby and shuffling and that condition had been progressing gradually wound up by saving that the case was of mental defect amounting to imbecility unfit to manage his own affairs and that was a progressive condition which had been developing since childhood. As we pointed out there is nothing to show that the Superintendent who granted the certificate had examined the appellant earlier to 8-10-1956 and his statement that it was a progressive condition which had been developing since childhood was only a matter of his opinion. Even that statement does not establish that the condition of the appellant was a congenital one. The second certificate is dated 21-9-1960 and that has been issued after the appellant was kept under observation from 12-9-1960 to 21-9-1960. The certificate stated that the appellant's case was of mental deficiency amounting to feeble-mindedness and in the opinion of the Superintendent who granted the certificate this defect existed from birth onwards. Here again we are unable to agree with the contention of the learned counsel for the respondent that Ex. A-14 establishes that the appellant was a congenital idiot. It may be mentioned in this context that Exs. A-12 and A-14 were produced on behalf of the appellant himself for the purpose of enabling his wife Padmavathi to act as the next friend of the appellant in instituting the suit. Apart from these two certificates, the only other reliance was, as we pointed out already, on the averments contained in paragraphs 3, 6 and 13 of the plaint and we are clearly of the opinion that the said averments do not amount to either an allegation or an admission that the appellant was an idiot or a lunatic congenitally. In this context, it is rather difficult to understand what exactly the trial Court has actually held. The learned trial judge points out in paragraphs 9 of his judgment that from the description of the plaintiff in the plaint it cannot be said that the plaintiff is not an imbecile from birth. Again in paragraph 12 of the judgment, he states that in his opinion, from the description of the plaintiff in the plaint the plaintiff is a person who is a lunatic and he states further-"i am also of the opinion that not having been stated explicitly that the plaintiff is not a lunatic from birth it can be presumed that he is a lunatic from birth". We are unable to agree with the reasoning of the learned trial Judge in this behalf. Certainly when the plaint does not proceed to state that the appellant was not a congenital lunatic and proceeds to state his mental capacity and condition at the time, the transactions were entered into and at the time when the suit was instituted no obligation whatever was imposed on the next friend of the plaintiff to state that the plaintiff was congenitally an idiot and from the absence of any such statement no presumption whatever can be drawn that he was a lunatic from birth. The learned trial Judge himself has not referred to any principle or authority on the basis of which such presumption can be raised. On the other hand, the burden was certainly on the fifth defendant who having obtained a mortgage deed from the plaintiff himself to establish that notwithstanding the fact she entered into the transaction with the plaintiff and obtained a document executed by him, the plaintiff happened to be a congenital lunatic or idiot. If she does not discharge the burden certainly the defence taken by the fifth defendant in this behalf cannot be upheld on the basis of any presumption as the learned trial Judge has done.