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CASE NO.: Appeal (civil)  2519-2520 of 2005

PETITIONER: Sona Bala Bora & Ors.

RESPONDENT: Jyotirindra Bhatacharjee

DATE OF JUDGMENT: 11/04/2005

BENCH: Ruma Pal & C.K. Thakker

JUDGMENT: J U D G M E N T

(Arising out of SLP (C) Nos.10084-85 of 2004)

RUMA PAL, J.

       Leave granted.

       The first appellant is the widow of Bhogirath Bora.  The appellants 2-4 are their children.  They reside in a   bungalow which is situated in an area of .176 acres of  land at Shillong. There are two other bungalows on the  same plot which are tenanted.  The respondent claims  to have purchased the three bungalows and the land  from Bhogirath in 1977 for a consideration of Rs.  69,000/- In 1978, the respondent filed a title  suit against,  inter alia the appellants and Bhogirath, (who was  named as a proforma defendant) claiming a declaration  that he was the absolute and exclusive owner of the land  and buildings, for a decree for vacant possession by  evicting the appellants and the tenants therefrom, for  mesne profits, interest thereon and costs.   The appellants also filed a suit against the  respondent and Bhogirath claiming a declaration that  Bhogirath did not have the absolute right to transfer  the property to the respondent, that the sale made to  the  respondent was void and should be set aside, for a  declaration that Bhogirath was bound by the terms of a  compromise petition dated 10th June,  1977 filed in     Ct.  case no.  3/1977   and  that the  appellants had a  preferential right and a right of preemption to purchase  the other two houses on the land.  It is an admitted position that in 1977, Bhogirath  had filed a complaint (Case No.3/1977) against some of  the appellants before the Magistrate under Section 107  of the Code of Criminal Procedure.  The complaint case  was compromised on 10th June 1977 by filing  of terms  of settlement before the Magistrate. In terms of the  compromise Bhogirath was inter alia to make a gift  of  the bungalow and land in which the appellants were  residing, to the first appellant.  The deed of gift was  required to be executed and registered at the same  time  when Bhogirath sold the other two houses to  purchasers. Bhogirath also agreed to build a cement  brick wall at his expense as a boundary separating the  other two houses with the house to be gifted to the first  appellant.  He also agreed to build and construct a

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sanitary latrine for the house which was given as a gift  to his wife.  Additionally, Bhogirath was to open a  Savings Bank  Account of Rs. 10,000/- in his wife’s  name out of the sale proceeds of the other two houses.   In consideration for the aforesaid the appellants agreed  not to put any hindrance in the sale of the other two  houses by Bhogirath  to a purchaser of his own choice.   They also agreed to give vacant possession of the two  houses to be sold  to Bhogirath on or before 20th June,  1977 after obtaining the same from the tenants  occupying the two houses. In breach of this agreement, Bhogirath sold the  entire property together with all three houses standing  thereon to the respondent inter alia without executing a  gift deed to the first appellant. In fact according to the  appellants they were not aware of the transaction nor  were they given any notice of the mutation which was  then effected in respect of the property at the instance  of the respondent. In both the suits, Bhogirath filed a written  statement supporting the respondent and denying the  claim of the appellants. Both the suits were clubbed  together and heard. Two separate sets of issues were  framed. After evidence was led by both sides, counsel  agreed that the suits could be decided only on one  issue namely whether on the evidence the respondent  was entitled to get the suit property.  The District Judge delivered a common judgment  in both the suits on 12th July, 1985. He held that: (1)     Bhogirath was mentally imbalanced  from 1971.

(2)     The sale and mutation of the property  was without the knowledge of the  appellants.

(3)     Although the respondent had had  Bhogirath’s mental capacity tested by a  Doctor, the Doctor was not called.

(4)     The mutation of the suit property had  been allowed in favour of the  respondent without possession.

(5)     The respondent had deposed that he  was willing to give up his claim to the  property on a refund of the money.

In these circumstances and as the appellants  would have to suffer serious hardship in case they were  evicted  since they did not have any other house for  their living whereas the respondent had his own house  at Umpling, the respondent’s suit was dismissed and  the amount of Rs. 69,000/- was directed to be repaid  by the appellant No.1 to the respondent within six  months.  In default the respondent was entitled to  execute the decree for 69,000/-. The respondent preferred an appeal to a single  Judge of the High Court.  While the appeal was  pending, Bhogirath died on 18th August, 1988.  The  appeal was dismissed on 3rd March, 1994.  The First

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Appellate Court framed the following  issues:- "1) Whether late Bhogirath Bora- Respondent No. 6 was the sole owner of  the suit property and had saleable right,  title over the property.

2)  Whether the time of execution  of the registered sale deed the  respondent No.6 was not mentally  sound and whether execution of the sale  deed conferred right, title and interest  to the appellant.

3)  Whether the appellant obtained  possession of the property".

On the first issue, the learned Single Judge came  to the conclusion that the land was settled on Bhogirath  for the welfare of his family and that the houses  standing on the land were constructed out of   substantial  monetary contributions of the first  appellant.  In the circumstances, it was held that  Bhogirath was  not the sole owner of the property and  he could not transfer the entire land to the respondent. On the second issue, the appellants’ case that  Bhogirath was mentally unbalanced  when the  impugned sale deed was executed was believed.  This  conclusion was based on the fact that the respondent  had failed to show that Bhogirath was mentally sound  to execute the sale deed.  On the other hand, the first  appellant had deposed that  rent from the two houses  were being collected by her since 1971 when Bhogirath  had developed fits of insanity during which he  threatened to sell the residential house, that he had  become disinterested and detached from the family,  that his conduct was not normal, that he instituted a  case against his wife and children, that he was violent  and quarrelsome, that he remained away from the  house for long periods that he secretively transferred  the entire property by way of sale rendering the  members of his family homeless and finally that he had  tried to forcibly dispossess his family. The learned  Single Judge however was conscious of the fact that  these factors may not necessarily show that a person  was mentally unstable but he was of the opinion that  viewed as a whole Bhogirath was not mentally sound  and as such the sale deed executed by him did not  confer any right, title or interest on the respondent.   The third issue was also decided against the  respondent by holding that Bhogirath was never in a  position to deliver the entire property to him.  The respondent’s further appeal before the  Division Bench of the High Court, however met with  success.   The Appellate Court, relying upon the decision of  the same High Court in Smt. Amiya Bala Dutta, Vs.  Mukul Adhikari and Ors. 1998 (2) GLJ 527  held  that since the patta had been issued to  Bhogirath, he   acquired the right of ownership and had a permanent  saleable and transferable right in the houses including  their occupancy.  The Court was also of the view that  mere substantial contribution in the construction of the  house not being supported by any reliable evidence,  oral or documentary, did not confer any right upon the  appellants over the suit property.  Further the

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compromise degree itself proceeded on the basis that  Bhogirath was the rightful owner of the property and he  had a saleable right over it.  As far as Bhogirath’s  alleged insanity was concerned, it was held that the  burden to establish that was on the appellants, an onus  which they had failed to discharge. The learned Judges  were of the view that the mere institution of a criminal  case by Bhogirath against his wife and children, selling  the house to a stranger and the other instances given  by the appellants did not indicate that Bhogirath was  not a normal person. Emphasis was placed on the fact  that there were no pleadings either in the written  statement  or in the plaint filed by the appellants as  regards the mental position of Bhogirath at the time of  execution of the sale deed.  It was noted that Bhogirath  was never medically examined to support the  contention of the appellants that he was of unsound  mind. Finally it was held that the plea of the right of  preemption was unsustainable since the law of  preemption was not applicable in the State of  Meghalaya. Accordingly, the respondent’s appeals were  allowed, the decision of the single Judge was set aside  and the suit filed by the respondent was decreed  for  the entire relief sought. We are unable to sustain the reasoning of the High  Court. Firstly- the   Division Bench wrongly proceeded on  the basis that there was no pleading  of the mental  imbalance of Bhogirath in the appellant’s plaint or  written statement. In fact in both  the written  statement and plaint the appellants had pleaded that  after Bhogirath’s retirement from service in 1968,  Bhogirath became "abnormal and detached from his  family" and showed  signs of insanity and was  quarrelsome and violent. It was pleaded that although  Bhogirath’s mental condition improved, it had  deteriorated again in  1977 and that during his fits of  insanity, Bhogirath always threatened to sell the  property.   It is true  that the respondent asserted in  evidence that at the time he purchased the land,  Bhogirath was a normal man and did not suffer from  any mental defect.  At the same time in  cross- examination he said that:-  "I got examined  Sri Bora   by doctor to determine whether he had any mental  insanity.  He was examined in the mental hospital only  for half an hour and obtained certificate of his  normalcy.  I got him examined because I came to know  from some people that Sri Bora was suffering from  mental insanity.  Being satisfied I purchased the  property".   Therefore, it was the admitted case that Bhogirath  was at least reputed to be insane which was why the  respondent thought it necessary to have him medically  examined before he purchased the property.  It is in  this background that the First Appellate Court had  examined the facts and had held that respondent  should have produced the doctor who certified that  Bhogirath was mentally normal. It cannot be disputed that a contract of sale like  any other contract would be vitiated if the consent of  either party is given by a person of unsound mind as  provided in Section 11 of the Contract Act, 1872. Under  Section 12 of that Act, a person is said to be of sound  mind for the purpose of making the contract, if at the

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time when he makes it, he is capable of  understanding   it and of forming a rational judgment as to its effect  upon his interests. A person of unsound mind is thus  not necessarily a lunatic. It is sufficient if the person is  incapable of judging the consequences of his acts.  Black’s Law Dictionary says:- "As a ground for voiding or annulling a  contract or conveyance, insanity does  not mean a total deprivation of reason,  but an inability, from defect of  perception,  memory, and judgment, to  do the act in question or to understand  its nature and consequences ."  

It must be remembered that in a civil matter the  issues have to be decided on a balance of probabilities.   The question of the capacity of Bhogirath to execute  the conveyance did not have to be established only by  medical evidence.  The unsoundness of the mind may  be established by proving such conduct as was not only  not  in keeping with the concerned person’s character  but such that it could not be explained on any  reasonable basis.   The appellants’ evidence to the effect that  whenever Bhogirath suffered from a fit of depression,  he would become violent and angry, seek to sell the  property and dispossess his entire family had not been  rebutted by the respondent by cross-examination. It is  said insanus est qui, abjecta ratione, omnia cum  impetu et furore facit \026 he is insane who, reason being  thrown away, does everything with violence and rage.  Neither the action of surreptitiously selling the  residential house and depriving his entire family nor the  initiation of criminal proceedings against his wife and  children without cause is in accord with natural and  normal affection. This should have been seen by the  Division Bench as an irrational action or the outcome of  mental disorder. Had it been alleged and proved either  that the relationship between Bhogirath and  every  member of his family was strained or that he required  money necessitating an immediate sale of his and his  family’s only residence, his action would perhaps have  been in keeping with  sanity.  In the absence of any  such reason, the act of dispossessing  his family from  property and putting his family on the streets must be  seen as intrinsically that of an unsound mind.  Interestingly the respondent, a stranger to the family,  said in evidence  that if he could not get the possession  of the land he was willing to take back the money that  he had paid  and that he did not desire the appellants  "to go to the street after vacating the house". The  reaction of the respondent when compared with the  conduct of Bhogirath would highlight the extent of the  irrationality and abnormality of Bhogirath’s conduct.  The general reputation of Bhogirath as suffering from  mental disorder was acknowledged by the respondent  himself and the Appellate Court erred in not giving  appropriate weight to this admission of the respondent. The assessment of evidence is inevitably  subjective because "we see the evidence with nobody’s  eyes but our own". If the assessment  of the lower  Courts is such that it cannot be reasonably sustained,  the decision can and should be set aside on appeal.   But where this is not so, the Appellate Court should be  slow to interfere with a concurrent factual inference

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merely because the eyes of the Appellate Court are  different . The learned single Judge had opined that  a  "normal" man would not initiate criminal proceedings  against his family, particularly when there was no  evidence of any ill-feeling or discord between the two.   He was also of the view that it was not normal for a  man to leave his house and withdraw from his near and  dear ones for no discernible reason.  If in these  circumstances, a Court comes to the conclusion that  the irrational  conduct was indicative of a mental  imbalance and that the degree of irrationality was such  that without proof to the contrary it would mean that  Bhogirath was incapable of rational and controlled  thought, the conclusion cannot be faulted.          No doubt the burden to prove or establish at  least on a balance of probability that Bhogirath’s action  in executing the sale deed in favour of the respondent  was the outcome of an unsound mind was on the  appellants.  But unrebutted evidence of an unnatural  and inexplicable animosity to his wife and children as  well as of an unnatural and inexplicable fixation on  selling of all his properties probabilses  that the sale  was effected by when Bhogirath was incapable of  rational behaviour. This was sufficient to discharge the  appellants’ burden. The onus then shifted to the  respondent to adduce evidence either to show that the  ostensibly irrational conduct of Bhogirath had a rational  explanation  or that the conveyance was executed by  Bhogirath in a lucid interval.  The respondent had, if his  statement is to be accepted, a certificate of a Doctor  who had medically examined Bhogirath just before the  conveyance was executed.  The respondent did not  seek to call the Doctor or prove the certificate. We would therefore hold that the Division Bench  erred in reversing the decision of the lower Courts on  this issue. Secondly, the Appellate Court wrongly rejected   the evidence given by the appellants that the first  appellant had made substantial contributions towards  the erection of the three bungalows without rejecting  the lower Courts finding that this statement was not  challenged in cross-examination by the respondent.  Perhaps that was why in the  compromise petition,  Bhogirath agreed to gift one bungalow, erect a  boundary wall and pay Rs. 10,000/- to the first  appellant. In any event and assuming Bhogirath was compos  mentis,  what the Division Bench overlooked was that  the appellants sought enforcement of the compromise  which has never been challenged either by Bhogirath or  the respondent.  In other words they sought specific  performance of the agreement whereby Bhogirath had   bound himself to transfer one of the bungalows to the  first appellant. This being so the Appellate Court should  have at least applied its mind to this aspect of the  matter.  Finally, the respondent had prayed for mesne  profits, interest and costs in addition to a declaration of  title  and possession. Because the lower Courts had  dismissed the respondent’s suit with regard to the  primary prayers of declaration and recovery of  possession, they did not consider these consequential  prayers.  The Division Bench granted the relief without  considering whether the respondent had laid any

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factual basis in that regard and without assigning any  reason in support of their conclusion. For all these reasons the appeals are allowed and  the decision of the trial Court as affirmed by the Single  Judge of the High Court is restored. The respondent’s  suit is accordingly dismissed. However the amount of  Rs.69,000/- must be paid by the appellants to the  respondent with interest at 6% per month simple  interest from 1st September, 1985 (being  approximately 6 weeks from the date of the judgment  of the Trial Court) until payment is made. No costs.