PETITIONER:
MAHAMMADUNNI'S SON KAPPATTA KATHOKANDATH BAVA
Vs.
RESPONDENT:
KUNHOOSA'S SON AMPALATH VEETTIL KUNNATHODATH MAHAMMADUNNI &O
DATE OF JUDGMENT02/12/1975
BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
CITATION:
1976 AIR 224 1976 SCR (2) 858
1976 SCC (1) 359
ACT:
Partition suit-Proof of marriage-Lucid interval-A
person adjudged insane whether continues to be so till
proved to the contrary.
HEADNOTE:
The plaintiff who is son of defendant No. 3's mother's
brother filed a suit for partition of properties which
belonged to the mother and father of defendant No. 3.
Defendant Nos. 1 and 2 are the sons of brothers of defendant
No. 3's mother. Defendant No. 4 is the son of defindant No.
3's father's brother. Defendant No. 3 died during the
pendency of the suit. Thereafter, defendant No. 1 filed his
additional written statement and claimed half share in the
property of defendant No. 3 on the ground that defendant No.
3 married defendant No. 1 after the suit was instituted.
The Trial Court allotted different shares to various
defendants in the properties left by defendants No. 3's
mother and father which are no longer in dispute. The trial
Court found that defendant No. 4 alone was entitled to the
share of defendant No. 3 on the ground that the marriage of
defendant No. 3 with defendant No. 1 was not proved. The
trial Court also found that defendant No. 3 was mentally
unsound to enter into any marriage.
On appeal, the High Court held that defendant No. 1 was
married to defendant No. 3 and defendant No. 3 was in a
lucid interval at the time of marriage.
On an appeal by certificate to this Court, the counsel
for the appellant contended: (1) that the finding of the
High Court both with regard to the fact of marriage and that
the marriage took place during a lucid interval were
erroneous; (2) that defendant No. 3 was not a sane person as
is clear first from an order declaring defendant No. 3 to be
a person of unsound mind, whereby defendant No. 4 was
appointed guardian of the property of defendant No. 3 and
defendant No. 1 was appointed guardian of the person of
defendant No. 3 Secondly the application of defendant No. 3
to be declared herself as a person of sound mind was
rejected by the District Judge. Thirdly, in the present suit
defendant No. 3 was impleaded as a person of unsound mind;
and (3) that once a person is adjudged insane it is presumed
that state of unound ess would continue until proved to the
contrary.
Dismissing the appeal,
^
HELD : (1) The documents relied on by the applellant
do not rule out lucid interval at the time of marriage. The
High Court relied on the evidence of D.W. 4, a teacher, who
attended the marriage. He deposed that defendant No. 3 gave
her consent to the marriage and was in her lucit interval at
that time. The High Court rightly found that defendant No. 3
gave her consellt to the marriage and was in her lucid
interal. The conclusion of the High Court on both the
questions is based on evidence and is correct. [860E-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1268 of
1970.
From the Judgment and order dated 17th July 1969 of the
Kerala High Court in A.S. No. 217 of 1964.
859
T. S. Krishnamoorthy Iyer, N. Sudhakaran and P. K.
Pillai for the Appellant.
A. S. Nambiyar for Respondent No. 2.
(Appeal set down ex-parte against respondents 1 and 5-
21 Respondent 4 expired : Name of respondent 3 deleted).
The Judgment of the Court was delivered by
RAY, C.J. This is an appeal by certificate from the
judgment dated 17 July 1969 of the High Court of Kerala.
The question in this appeal is whether defendants No. 1
and 4 are each entitled to share in the property allotted to
defendant No. 3 in a partition decree. Defendant No. 4 is
the appellant.
This appeal arises out of a suit instituted on 19
November, 1957 for partition of properties. Properties
mentioned in Schedule A and B to the plaint belonged to the
mother of defendant No. 3. Properties mentioned in Schedule
C to the plaint were joint properties of the father and the
mother of defendant No. 3.
The plaintiff and defendant No. 2 are the sons of one
of the brothers of the mother of defendant No. 3. Defendant
No. 1 is the son of another brother of the mother of
defendant No. 3. Defendant No. 4 is the son of defendant No.
3’s father’s brother.
Defendant No. 3 died during the pendency of the suit.
Thereafter defendant No. 1 filed his additional written
statement and claimed half share in the property of
defendant No. 3 on the ground that defendant No. 1 had
married defendant No. 3 on 30 August, 1959.
The Trial Court allotted to defendant No. 33/6th share
in properties mentioned in Schedules A and to the plaint.
The plaintiff and Defendant No. 1 and defendant No. 2 were
each given 1/6th share in properties in Schedules A and B to
the plaint. With regard to Schedule properties the plaintiff
and defendant No. 1 and defendant No. 2 were each given
9/96th share and defendant No. 3 was given 51/96th share and
defendant No. 4 was given 18/96th share.
The Trial Court found that defendant No. 4 was alone
entitled to the share of defendant No. 3 on the ground that
marriage of defendant No. 3 with defendant No. 1 was not
proved. The Trial Court also found that defendant No. 3 was
mentally unsound to enter into any marriage.
Defendant No. 1 preferred an appeal. The High Court set
aside the judgment of the Trial Court and held that
defendant No. 1 was married to defendant No. 3 and defendant
No. 3 was in a lucid interval at the time of marriage.
Counsel for the appellant defendant No. 4 impeached the
finding of the High Court both with regard to the fact of
marriage and the finding that defendant No. 3 was married in
a lucid interval.
860
Defendant No. 4 relied on three documents in support of
the submission that defendant No. 3 was not a sane person to
enter into marriage with defendant No. 1. The first document
is Exhibit B-34 which is an order dated 8 November, 1958
declaring defendant No. 3 to be a person of unsound mind. In
that order defendant No. 4 was appointed guardian of the
property of defendant No. 3 and defendant No. 1 was
appointed guardian of the person of defendant No. 3. The
second document is Exhibit B-8 dated 7 September 1959. The
appellant submitted that on 7 September 1959 defendant No. 3
wanted to get herself declared as a person of sound mind. By
an order dated 5 February 1960 being Exhibit B-31 the
District Judge dismissed the application of defendant No. 3.
The third document on which the appellant relied is the suit
in this appeal where defendant No. 3 on 19 November, 1957
was impleaded as a person of unsound mind.
The appellant contended that though Exhibit B-34,
namely, order dated 8 November 1958 declaring defendant No.
3 as a person of unsound mind was not a judgment in rem but
it was a judgment interparties and it would, therefore, be
admissible under sections 11 and 13 of the Evidence Act. The
appellant also contended relying on the decision in Amanchi
Seshamma v. Amanchi Padmanabha Rao(1) that once a person is
adjudged insane it is presumed that state of unsoundness
will continue until proved to the contrary.
Counsel for the appellant therefore contended that the
conclusion of the High Court that defendant No. 3 was in a
lucid interval at the time of marriage was against the
overwhelming documentary evidence.
The documents relied on by the appellant do not rule
out lucid interval at the time of marriage on 30 August
1959. The High Court relied on the evidence of D.W. 4 who
attended the marriage. D.W. 4 was a teacher. His evidence
was that defendant No. 3 at the time of marriage talked with
Musaliar. His further evidence was that Musaliar called
defendant No. 3 and she went near him and told him that he
was being authorised by her to give her in marriage to
defendant No. 1. The High Court rightly found that defendant
No. 3 gave her consent to the marriage and was in her lucid
interval.
The High Court reversed the finding of the Trial Court
and held that the marriage took place. The High Court relied
on the oral evidence and found that marriage in fact was
held. The conclusion of the High Court on both the questions
is correct. The appeal is therefore dismissed. No order as
to costs.
P.H.P. Appeal dismissed.
861