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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;

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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

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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