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PETITIONER: KARUMANDA GOUNDER

       Vs.

RESPONDENT: MUTHUSWAMY GOUNDER & OTHERS

DATE OF JUDGMENT:       10/01/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 AIR 1002            1996 SCC  (1) 720  JT 1996 (1)   205        1996 SCALE  (1)235

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellant herein, Karumanda Gounder, was one of the defendants in  the suit.  He was  a brother  to  Komaraswamy Gounder. At one point of time they had joint properties with their father.  A partition took place between them which was put to  some doubts.  Out  of  the  properties  allotted  to Komaraswamy Gounder,  a parcel  of land was gifted by him to M.K.  Komaraswamy   Gounder.  When  Muthuswamy  Gounder  the plaintiff-respondent wanted  to purchase  that property,  he persuaded the donor and the done to sell the property to him in unison.  That having  occasioned, resistance was faced by the plaintiff-respondent  from the  present appellant on the ostensible  plea   that  the   properties  were  joint.  The plaintiff-respondent concededly  after sale had not been put to possession  of the  property. This  led to  the suit  for possession by the plaintiff-respondent.      Amongst other pleas, the star plea of the appellant was that his  brother Komaraswamy  Gounder was a lunatic; hence, he was incapable of selling or gifting the property. Further there had  been no  partition and  the question  of the sold property having  fallen to  the share of Komaraswamy Gounder did not  arise. When  the parties  went to  issue before the trial court,  the plaintiff-respondent  failed as  the court took the view that Komaraswamy Gounder was mildly a lunatic; the properties  were joint  and that the alleged interest in the properties  by the  appellant, was  justified. The  High Court, on  appeal, however,  reversed the findings recording that Komaraswamy  Gounder was  not a lunatic; the properties amongst brothers  stood partitioned  as conceded  to by  the appellant, and  that the  property in  dispute had fallen to the share  of Komaraswamy  Gounder. On that basis, the right of the  appellant to question the gift and the sale deed was negatived inasmuch  as on  date he  had no  right  over  the property. Thus,  the High  Court put  the appellant  to  the position of  an interloper;  not even  a proper party to the

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suit, what  to talk  of a  necessary party.  It is  to upset these findings that the appellant is before us, in appeal.      We have  heard  Mr.  A.T.M.  Sampath,  learned  counsel appearing for  the appellant.  He has  taken us  through the lengthy judgments  prepared by the subordinate court as also that of the High Court. It is prominently noticeable that no effort ever  had been  made by  the appellant  to  have  his brother Komaraswamy  Gounder declared  as a lunatic from the District Court  under the  Lunacy Act.  Even on the findings recorded by  the subordinate  Court,  there  is  hardly  any substance to  entertain the  view that  he was  a lunatic. A person has  to be  adjudged  a  lunatic  whereafter  certain consequences may  follow. There  is no  such thing as a mild lunatic’. A  person may be of a weak intellect; incapable of managing his  affairs, but that per se, would not make him a lunatic. Once  partition stands conceded and the property in dispute fallen  to the  share of Komaraswamy Gounder and the plea of  his being  a lunatic rejected, the appellant has no stake left to pursue the appeal. It is far-fetched to assume that Komaraswamy  Gounder would  some day  die intestate and issueless on  which the  appellant might  have  a  claim  to succeed to  his estate.  Even  this  plea  is  presumptuous, because the  property in dispute has already been gifted and then sold  to the  plaintiff-respondent. The  claim  of  the plaintiff-respondent for  possession,thus, was legitimate in the facts  and circumstances. The questions raised herein by Mr. Sampath,  learned counsel, to upset the view of the High Court are  essentially those  of fact. It would be difficult for us  to upset  those orders  of the  High Court  in  this jurisdiction.      The appeal  accordingly fails  and is hereby dismissed. No costs.