ORDER
1. This second appeal raises an extremely interesting but equally important point of law which can very briefly be summarised in the following terms:
2. Where a contract executed by a party who claims to have done it under the influence of alcohol or more correctly, where a party sets up the defence that he is addicted to the consumption of alcohol whether it is a sufficient ground to avoid the contract having regard to the principle embodied in Section 12 of the Contract Act.
3. Factually, the dispute is within a narrow compass. Insofar as the appellant, a one time Doctor who appears to have concentrated more on the consumption of alcohol than his medical practice contends that, he agreed to sell a small house property to the plaintiff by agreement dated 25-6-1984. The agreement is not registered and it is the plaintiffs case that the defendant used to borrow small amounts of money from him from time to time and that he had paid an advance to the defendant against the consideration which was to be adjusted when the transaction finally took place. The amount under this head aggregates to Rs. 2,300/-, but we are not much concerned with that aspect of the matter. It is the plaintiff’s case that the defendant was avoiding to complete the transaction for which reason he served a notice on the defendant calling upon him to accept the balance consideration and complete the same. The notice was not replied, nor did the defendant comply, which was why the suit for specific performance was filed. A few dates are relevant. The time for completion of the sale was upto October 1984. The plaintiff served a notice on the defendant on 20-9-1984 and instituted the suit on 5-11-1984. It is alleged that the defendant had in the meanwhile, executed a deed of relinquishment in favour of his minor children in respect of certain properties including the present one on 15-1-1984.
4. The defence pleaded in this case is of considerable relevance because it was contended that the defendant was, during the relevant
period of time, totally addicted to the consumption of alcohol. It was the defendant’s case that, he was taken to a place called ‘Kubera Bar’ where he was piled with alcohol and that his signature was taken when he was in a drunken condition. The defence was further elaborated in the written statement and in the course of the trial to the extent that it was contended that the defendant had even been under treatment at the Mental Hospital, Dharwad between the periods 28-9-1983 upto the year 1987. In sum and substance, what was contended was that having regard to the mental condition in which the defendant was, when the contract was executed as also before and after that point of time, that the Court could not enforce the contract as it would be hit by the provisions of Section 12 of the Contract Act insofar as the defendant would be on par with a person of unsound mind. Briefly stated, the Trial Court accepted the defence and dismissed the suit. The Appellate Court however allowed the appeal and decreed the suit and it is against the appellate order that the present second appeal has been filed.
5. Since this is a second appeal, the two learned Counsels who have argued this matter with a very high degree of ability and skill have had to necessarily concentrate on the legal aspect which did however require some background reference to the evidence and the record. Mr. Savanur, learned Counsel who represents the appellants stated that, the provisions of Section 12 of the Contract Act embodied the principle that one of the necessary ingredients for the execution of a valid contract presupposes the fact that the executant must be in full control of his or her senses and he pointed out to me in detail that, a human being given to excessive consumption of alcohol over a period of time is reduced to such a mental condition because of the prolonged effects of alcohol and the intake from time to time, to a position whereby it is not possible to make a sound decision or to realise the consequences of one’s act. He relied strongly on the evidence of the wife of the appellant who stated in her deposition that he had been heavily addicted to alcohol and that his condition was so bad that he required treatment at the Dharwad Mental Hospital, which treatment had commenced even before the execution of the present contract. Reliance was also placed on the evidence of the defendant who had contended that he was taken to a Bar and that his signature was obtained when he was in a drunken condition. Learned Counsel submitted that, this material conclusively establishes the fact that the appellant was certainly not in a sound frame of mind and that therefore the contract could be avoided on this ground. Heavy reliance was placed on the leading case on the point in Bromley v Ryan . The judgment in question is a very lengthy one and Mr. Savanur took me through all the relevant paras of the judgment wherein the Bench by a 2:1 majority held that the contract in question in that case was liable to be struck down because of the fact that it was established that the executant was an alcoholic and that the circumstances indicated that undue advantage had been taken of his position. The learned Counsel did refer to the minority judgment and made his submissions with re-
gard to the views expressed therein. In view of the importance of the issue involved in this case, it would be useful to briefly summarise the heads under which the Court finally decided the issues on the facts of that case, because these heads embody all the relevant facets of law on the point. The Court firstly laid down that the executant must be established to have been in a state of sound disposing mental condition insofar as he should have been possessed of his mental faculties to the extent of being able to understand the contents of the documents and the consequences. The Court after a detailed examination of the condition of an alcoholic took cognizance of the fact that such a human being suffers from a degree of incapacity by virtue of what the Court characterised as impeding faculties, failing mental equipment and the natural physical fall-out of this condition which totally renders the party unable to judge for himself. In sum and substance, what was contended therefore was that the interference by the Appellate Court in this case was unwarranted and that the appellate order should be set aside.
6. The respondent’s learned Counsel submitted that, he has no quarrel with regard to the propositions of law that have been enunciated and which in fact are well-settled. The submission canvassed by him was that in the first instance that it is not unusual for certain problems to be pleaded with regard to parties executing contracts and that it is only in exceptional cases that a Court would permit a contract to be avoided provided the defendant discharged the burden of establishing that the contract in question was hit by one of the serious infirmities which the law permits. Mr. Rao pointed out to me that a perusal of the two judgments themselves in the background of the record would indicate that there is a divergence between what was pleaded in the written statement and what the defendant stated in the evidence and he relied on this fact to the limited extent that he maintained that this would seriously affect the maintainability of the defence. On the other hand Mr. Rao pointed out to the Court that, if the defence pleaded was to the effect that the defendant was in the position of a person of unsound mind that the law casts a heavy burden on the defendant of establishing this. What was first pointed out was that the pleadings are wanting insofar as even though a general defence of alcohol addiction has been pleaded, that there is no specific averment in the pleadings to the effect that the defendant was not in his senses at all times. Mr. Rao’s submission was that, the Appellate Court interfered with the judgment of the Trial Court precisely on this ground in so far as the learned Judge held that even if the defendant was an alcoholic that it has not been established that he was not in the control of his senses at the point of time when the agreement was executed. In this context, learned Counsel laid heavy reliance on three factors.
7. The learned Counsel contended that if the plea of alcoholism is to be upheld, then it would equally vitiate the other three contracts executed by the defendant during this period, but significantly enough, none of the three have even been challenged. Thirdly, what was vehemently submitted was the fact that even the medical evidence that was produced was not conclusive for purposes of establishing either of the
two ingredients namely that the mental condition of the defendant was continuously such as to render him unfit to contract or on the other hand, that it continued as such at the point of time when the present contract was executed. Learned Advocate pointed out to me an extract from Page 182 of Pollock and Mulla’s Commentary on the Contract Act, 11th Edition, Volume 1, wherein the learned authors have very clearly pointed out that the law requires very strict proof from a party seeking to avoid the contract in respect of the ground on which such an avoidance is pleaded.
8. As far as the law on the point is concerned, I do not dispute that Mr. Savanur is absolutely right when he points out that under normal circumstances if it is established that the executant was not only given to the consumption of alcohol but what one may categorise as a long term addict, that a Court would take judicial notice of the fact that such a person would for the greater part sink to a very weak mental condition. An addict presupposes the fact that the person cannot do without recurrent consumption of alcohol and that therefore, the lucid moments would be few and far between, if at all there are some. What is more important however is that one cannot generalise with regard to such situations because there may be lucid breaks when the party is perfectly and completely sober and it is for this reason that even in the case of such a person that the law requires that there must be strict factual proof of the fact that the infirmity was present at the point of time when the contract was being executed. It is well-settled that even in medical circles that in the case of persons who have psychological disturbances or persons who have been medically categorised as being of unsound mind, that as a result of treatment or otherwise, there are periods of time when this infirmity does not exist. It is for this reason that even the exception that is provided for in the IPC is not available to a criminal unless there is conclusive evidence of the fact that the person was not in control of his or her senses at the time when the offence was committed. The position in civil law is identical and the reading of Section 12 of the Contract Act leaves no doubt about the fact that this proof is condition precedent.
9. I need to refer to one other aspect of the matter which to my mind is of extreme importance. Undoubtedly, the majority judgment in Bromley’s case, supra, proceeded on the sympathy mode insofar as the Court went into the mental and physical impairment of the addict for purposes of holding that such a human being is reduced to a position of helplessness in which case the contract gets vitiated for two reasons, the first being that the party is not in a sound disposing state but mainly because of the vulnerability vis-a-vis third parties who could take undue advantage. It is perhaps an indirect protection to not only that person but to the family and others around for purposes of ensuring that the assets are not snatched away by others taking advantage of this weakness. I need to further highlight one aspect of the law which Fullager, J. emphasised while disagreeing with his learned Brothers in the aforesaid case and which to my mind is of considerable consequence. The learned Judge had occasion to observe that unlike other forms of impediments or
impairments such as mental illness etc., that alcohol addiction is virtually a self-induced condition and having regard to this aspect the learned Judge was of the view that such defences should be very sparingly upheld and that too in extremely rare cases. I need to observe here that there is a well-settled principle of jurisprudence which postulates that a party cannot take advantage of its own wrong and in this view of the law, if a person puts himself into a position of alcoholic addiction, executes contracts after accepting money from third parties and creating rights that the law would be extremely slow in allowing such a party to escape the consequences of the contract unless it is demonstrated to the hilt that the executant virtually did not know what he was doing when the contract took place. In this context, Mr. Rao argued very vehemently that the defence is required to be tested insofar as even if the plaintiff is alleged to have got the contract executed when the defendant was drunk, that a period of five months had elapsed during which time the defendant did not at any stage seek to retrace his steps or to dispute the validity of the contract. Again, learned Counsel points out that even after the service of the legal notice, no reply was sent alleging that the defendant did not know what he was doing when he executed the contract or that it is vitiated. His submission therefore was that even assuming that there is some evidence on record to support the view that the defendant was an addict, that he is only taking advantage of that condition for purposes of trying to wriggle out of the contractual commitment.
10. Having laid down the legal ingredients, the short question that arises for me to decide in this appeal is the question as to whether on an application of the well-settled principles of law, the Appellate Court was justified in decreeing the suit. The allied question that necessarily arises is as to whether the defendant has established that he is entitled to the protection available under Section 12 of the Contract Act and whether he is therefore eligible to avoid the contract. The answer to this last question is an affirmative no. The reason for it is very simple and very clear insofar as the record clearly demonstrates both from the evidence and the circumstances that the defendant has failed to establish that he was not in a sound mental disposition at the point of time when the contract was executed. It is true that Mr. Savanur has made much of the medical evidence but I have scrutinised it carefully and I find that the medical evidence again is of a generalised nature. I accept the position that the defendant had at one time sunk to the stage whereby he required treatment from the experts at a mental hospital but the all important ingredient is lacking in his evidence namely the question as to whether the defendant was continuously and at all times not in possession of his mental faculties and more importantly, whether this was the position at the point of time when the contract was executed. Mr. Rao is right when he points out that the generalised defence is insufficient in a case of this type because the law postulates very specific averments and absolute proof. I need to further add that it is the order of the day for contracting parties particularly, in property matters, to want to resile from contracts and in such cases as these Courts will have to be ex-
tremely guarded before defences of the present type are upheld. The avoidance of a contract is not only exceptional but is a very special exception which as I have indicated, would be permitted in the rarest of rare cases, The present record falls very much short of that legal requirement as far as the defendant goes and consequently, the Appellate Court was more than fully justified in having decreed the suit.
11. Having regard to the aforesaid position, the appeal fails and stands dismissed. The Appellate judgment is accordingly confirmed. Interim order, if any, to stand vacated.