Rajinder Kaur v. Mangal Singh And Others .

Gokal Chand Mital, J.:— Mangal Singh is alleged to have executed an agreement of sale dated 2nd June, 1981 in favour of Bhagat Ram in regard to 6 Bighas. 3 Biswas of land for a consideration of Rs. 39849/- and received Rs. 9849/- as earnest money. The sale deed is alleged to have been executed on a stamped paper for which the purchaser is alleged to have given Rs. 5000/- to the vendor. Since the vendor is alleged to have refused to get it registered, suit for specific performance of contract was filed which is still pending in the civil Court. It is long thereafter that Smt. Rajinder Kaur wife of Mangal Singh filed an application under section 62 of the Indian Lunacy Act, 1912 (for short ‘the Act’), before the District Judge, Karnal, on 4.2.1984 for declaring that Mangal Singh is of unsound mind is incapable of managing himself and his affairs and for a direction that she or any other person found fit may be appointed as guardian for his person and property. Surprisingly Bhagat Ram was not impleaded party to the application in spite of the fact that it was known to the family of Mangal Singh that suit for specific performance was pending in the Court. On the application of Bhagat Ram he was impleaded party, who contested the application and pleaded that Mangal Singh was not a lunatic or of unsound mind and the application was filed with ulterior motive to avoid the agreement of sale and the suit for specific performance.

2. On the evidence led in the case, the learned District Judge, Page: 446Karnal, by order dated 10.1.1936 came to the conclusion that Mangal Singh was not proved to be a lunatic or of unsound mind although he was a simpleton having slightly weak intellect and dismissed the petition. This is appeal by Smt. Rajinder Kaur.

3. After hearing the learned counsel for the parties and on perusal of the record, I am of the view that there is no scope for interference in this appeal. In the application, which was presented under section 62 of the Act, the only averment made was that Mangal Singh, husband of the applicant, was a person of unsound mind and was incapable of managing himself and his affairs and beyond this nothing else was said in the application as to how it was concluded that he was a person of unsound mind and was not capable of managing himself and his affairs, nor it was mentioned as to since how long he was in such a stage of affairs. The averments were simply vague, indefinite and inconclusive. When the applicant appeared in the witness box, she as AW4 stated that her husband is insane for the last 20 years. This statement was made on 13th March, 1985.

4. The learned District Judge had sought the opinion of a doctor from the Local Civil Hospital about the mental condition of Mangal Singh. On the direction of the District Judge, the concerned doctor kept Mangal Singh as an indoor patient from 18.7.1984 to 2.8.1984 and gave his opinion which is at page 117 of the record. According to the report Mangal Singh remained clean and was eating and sleeping normally and was well behaved and co-operative except for one night when he had fever and had refused to give blood for test. After noticing all detailed facts about the behaviour and condition of the prtient the following conclusion was drawn by the doctor.

“…From the above observation I am of the opinion that he is not suffering from any evident mental illness except that his intelligence is low (MILD MENTAL RETARADATTOM) and is having early senile change (PRE SENILE DEHENTIA).”

5. The learned District Judge sought another report from Medical College, Rohtak. From their report, which is at page 43, and later on marked as PA, it is clear that Mangal Singh was kept as an indoor patient from 8.8.1984 to 27.8.1984 and the opinion rendered was that he was suffering from Schizoph enia. This report was signed by Dr. Vimal Kumar who was later on examined as PW 3, whose statement is at page 133 of the record. From the statement of the doctor made in Court, the learned counsel for the appellant wanted to read in between the lines to draw an inference that Mangal Singh was found to be idiot or of unsound mind. I do not think if this inference is correct. In the statement made in Court also, it was stated that he was suffering from Schizophrenia and it was further opined that a patient of Schizophrenia cannot look after his affairs, with further opinion that when he examined Mangal Singh he was not in a position to look after his property. The doctor did not say that he was idiot or a person of unsound mind. In cross-examination the doctor stated that Schizophrenia was of residual type. The aforesaid statement of the doctor does not improve the position of the appellant for recording a finding that Mangal Singh was idiot or a person of unsound mind.

6. One of the criticism of the counsel for the appellant was that the Court below has discarded the statement of the doctor Page: 447and decided the case merely on the basis of his own opinion arrived at on the basis of the questions put by the Judge to Mangal Singh. I do not think the argument is correct. The Court below appreciated the entire evidence and then vouch-safe that with the opinion which he had formed after questioning Mangal Singh. This was the proper course to be followed.

7. A Division Bench of this Court in Nagahia Singh v. Ajaib Singh (1965) 67 PLR 857, had cautioned that great care has to be taken while deciding the matter about the lunacy of a person because if a person is declared lunatic it may have far reaching consequences and the matter is not to be lightly dealt with. It was also observed as follows:—

“…It would be wrong to be swayed by the expression “humanirain consideration”, in applying the provisions of the Lunacy Act to persons who are not truely idiots or persons of unsound mind and who may be merely possessing weak intellect and, therefore, not able to manage their property as efficiently as may be desirable, to do so is to ignore or at least unduly minise the drastic consequences in various aspects to the person who is judicially described to be a lunatic and subjected to an order under Lunacy Act.”

8. In the aforesaid decided case, the person concerned was declared lunatic by the Court below and this Court upset that decision and dismissed the petition for declaring that person lunatic. A similar question came up for consideration in R. Lingaraj v. Parvathi AIR 1975 Mad 285, and the following observations made therein deserve to be quoted:—

“A capacity of a person to manage himself and his affairs may vary from person to person, but the total incapacity which alone would justify a Court finding a person to be of unsound mind is wholy different from the inadequate ability of a person to look after himself and his affairs according to accepted norms and standards any by no stretch of imagination, be equated with incapacity following from unsoundness of mind…….”

9. The following observations made in Ranjit Kumar Ghose v. Secretary, Indian Psycho-Analytical Society AIR 1963 Cal 261, in para 48 at page 274, also deserve to be quoted:—

“Here as we have said before the learned Judge acted as a rubber stamp. The words such as Schizophrenia of Paranoid type are not enough to make a man “lunatic” under the Lunacy Act. These words are very common words used in modern psychology today. We have been shown many aushorities, which we consider it unnecessary to discuss here, suggesting that such features as Schizophrenia of Paranoid type can be detected even in almost all persons including the normal healthy individuals. A person does not become a “lunatic” under the Lunacy Act on the debatable niceties of psychological and psychiatric theories. It is, therefore, essential that the Judge must apply his mind and wherever possible examine personly the lunatic unless he has good reason not to do so, in very exceptional case. It cannot be too much emphasised that it is not the ultimate responsibility of the mental specialists Page: 448and specialist doctors whose views are always entitled to great deference, but it is the responsibility of the Court of law to find and hold that a person is a ‘lunatic’ under the Lunacy Act and that he should be detained in a mental hospital. This responsibility on the Court is serious and heavy and must be discharged with great care and circumspection, and the Court cannot do it vicariously through the medical and psychological specialists, though it can always and should preferably be guided by them.”

10. On a reading of the aforesaid quotations, it has to be held that it is the duty of the Court ultimately to record its opinion as to whether the person in question is lunatic or of unsound mind and in doing so while the opinion of the experts is to be given weight the Court is not to give up its duty to decide and that is why the Court below in view of the inconclusive and varied report of the doctors had no option but to satisfy itself after questioning Mangal Singh if he was really lunatic or of unsound mind and in doing so did not depart from the well recognised procedure. If the learned District Judge had not done this, I would have called Mangal Singh to put questions to him. In fact I had asked the counsel if they were wanting to produee Mangal Singh to be questioned by me so that I could also form my opinion, but the learned counsel for the appellant did not want to avail of this opportunity.

11. As already stated in the aforesaid quotations, mere simplicity of mind or being of weak intellect would not mean that a person is idiot or of unsound mind. On the evidence on record and in view of either both the reports or report of Dr. Vimal Kumar, it cannot be said that Mangal Singh is idiot or of unsound mind. The Calcutta High Court in Ranjit Kumar Ghose's case (supra) has clearly stated that disease of Schizophrenia does not render a person of unsound mind.

12. The application to get declaration that Mangal Singh is idiot or of unsound mind seems to be a malafide on the peculiar facts of this case. Mangal Singh has been executing documents, right upto 1979, which have been produced on record by the contesting respondent. He entered into agreement of sale with Bhagat Ram in 1981 and when that sale deed was not got registered, suit for specific performance was filed and it is three years thereafter that the present application was filed to avoid it. The applicant (now appellant) in her statement had stated that Mangal Singh had become a man of unsound mind 20 years ago, which will take us to 1965. Right upto 1979, he has been executing various documents in regard to his immoveable property, which have been tabulated as Exhibits R.1 to R.5, at page 3 of the order of the Court below. None of these transactions were challenged and no proceedings were taken soon after he executed the first document to avoid it on the ground that he was idiot or a man of unsound mind. These proceedings were started merely to avoid the suit for specific performance of contract and that too without impleading the contesting person namely Bhagat Ram. All this shows the malafide nature of the application.

13. For the reasons recorded above, this appeal is dismissed with costs.

14. One Civil Misc. application No. 4601.CII of 1986 was filed by the contesting respondent for permission to lead additional evidence. Page: 449The additional evidence sought to be produced is the copy of agreement of sale. The appellant had filed reply to the same. Since the factum of execution of the agreement of sale is not disputed in reply, the Civil Misc. application is allowed and the agreement of the sale is allowed to be placed on record by way of additional evidence.

R.M.S

Appeal dismissed.