P L D 1963 Dacca 253 (PLP)

6. On appeal the learned Additional District Judge set aside the judgment and decree of the trial Court, and dis missed the suit of the plaintiff appellant holding that the learned Munsif accepted the evidence adduced by the plaintiff in preference to that adduced by proforma defendant No. 4 for the reasons that the kabuliyat appeared to have been presented for registration by proforma defendant No. 3 Indra Mohan, and there is evidence that he accepted it, and that the learned Munsif did not even refer to the evidence of D. Ws. regarding insanity of the proforma defendant No. 3 Indra Mohan, and after considering the evidence of D. Ws. 2, 3 and 5 along with the documentary evidence Exhs. A (2), A (2) (1) and A (2) (2) is of opinion that "there remains little room for doubt that the story of proforma defendant No. 4 that proforma defendant No. 3 Indra Mohan has been insane for not less than 10 years before August 1951, is correct."

7. As to the limitation, the learned Additional District Judge also held "that the suit is barred by the special law of limitation inasmuch as there is allegation of dispossession of the plaintiff by proforma defendant No. 4, who is virtually the landlord of the plaintiff having regard to the fact that he has been managing the property of proforma defendant No. 3 Indra Mohan and possessing the land on his behalf." Hence, this appeal by the plaintiff.

8. It is contended by the learned Advocate in support of the appeal that the learned Additional District Judge did not believe the evidence of Ali Akbar (D. W. 2), Jagabandhu (D. W. 3), and Didar Bakhsh (D. W. 5) as to the insanity of Indra Mohan at the time of execution of the kabuliyat, Exh. 2, independently, but reading those evidence along with the inadmissible documentary evidence, Exhs. A (2), A (2) (1) and A (2) (2), he came to the finding that the story of proforma defendant No. 4 that the proforma defendant No. 3 Indra Mohan has been insane for not less than 10 years before August 1951, was correct, and as such finding of the learned Additional District Judge cannot be maintained as it is based on inadmissible evidence. As to the point of limitation, the learned Advocate contends that it is not a suit for recovery of possession of the land from the landlord, but it is a suit for possession after partition by metes and bounds on declara tion of the plaintiff's title to the 8 annas share of the property, and, as such, there is no scope for any application of the special law of limitation.

9. I think both these contentions of the learned Advocate for the appellant are of substance. The rent receipts, Exhs. 1 and 1 (a), granted by Indra Mohan and the kabuliyat Exh. 2, executed by the plaintiff Rohini in favour of Indra Mohan were in the year 1939, and both the Courts found that the transferee Rohini (plaintiff) is in possession of the transferred land, and he was recently dispossessed by Bhagaban, proforma defendant No. 4 through the lower Appellate Court held that such dispossession was by the landlord the proforma defendant No.

4. Question is, whether Indra Mohan who accepted the kabuliyat executed by the plaintiff Rohini in respect of the disputed land, and who granted rent‑receipts, Exh. 1 and (1) (a), settling the disputed land with the plaintiff in korfa tenancy was insane or not at the time of settlement. It appears from the endorsement of the Sub‑Registrar who registered the kabuliyat, Exh. 2 that the kabuliyat though exe cuted by Rohini (plaintiff), was presented for registration by Indra Mohan was identified by his own uncle Chandra Kanta Deb Nath from these facts and from the oral evidence adduced by the plaintiff, the trial Court found that at the time of the kabuliyat, Exh. 2 and the granting of rent‑receipts, Exhs. 1 and 1 (a), Indra Mohan was not insane: " It is there fore, decided that the defendant No. 3 Indra Mohan had never been insane at the time of granting the dakhilas and accepting the kabuliyat." The case set up by the defendants is that Indra Mohan was insane from his infancy. The evi dence of the defence witnesses is not uniform. D. W. 2 Ali Akbar stated that Indra Mohan has been made for 10/15 years. D. W. 3 the Jagabandhu stated that he has been made for 22/23 years. The evidence of D. W. 5 Didar Baksh is that he was made for 22 years. D. W. 7 (proforma defendant No. 4) stated that Indra Mohan was mad since he was 7/8 years of age. He admitted that at the time of deposition he was 48 years of age, and Indra Mohan was younger than him by 15 years. Therefore, he was about 33 years of age, and according to proforma defendant No. 4 Bhagaban, he is mad for over 25 or 26 years. In view of these contradictory evidence, the learned Additional District Judge could not rely on these evidences as to the insanity of Indra Mohan at the time of execution of this kabuliyat. What he did is that he read these evidence along with the deposition of the plaintiff, Exh. A (2), and those of one Iswar Chandra, Exh. A (2) (1), and Hasan Ali Exh. A (2) (2) in the criminal case. It appears from Exh. (2) that the plaintiff stated in that criminal case that Indra Mohan had some brain defects for 5/6 years. His deposition in the criminal case is dated 25‑8‑

51. In Exh. A (2) (i) Iswar Chandra stated that he could not say for how long Indra Mohan had become mad. From Exh. A (2) (2), depo sition of Hasanali, it appears that Indra Mohan is mad for 9 or 10 years last. On a reading of the evidence on the defence side along with the deposition of these witnesses including that of the plaintiff in the criminal case the learned Additional Dis trict Judge has come to the conclusion: " If this evidence is considered along with documentary evidence referred to above, Exhs. A (2), A (2) (1) and A (2) (2), there remains little room for doubt that the story of proforma defendant No. 4 that proforma defendant No. 3 Indra Mohan has been insane for not less than 10 years before August 1951, is correct." Even accepting this finding that Indra Mohan became insane 10 years before from August, 1951, he was not insane on the date of execution of the rent‑receipt and the kabuliyat, Exh. 2 in the year 1939.

10. Be that as it may, the burden lies on the defendants, in the circumstances of the present case, to prove that Indra A Mohan was insane at the time of granting dakhilas, Exhs. 1 and 1 (a), and at the time of presentation of the kabuliyat executed by the plaintiff for registration before the Sub‑Registrar in 1939. It is admitted in his deposition by proforma defendant No. 4 Bhagaban that Indra Mohan was under treatment for a long time of Dr. Girish Chandra Ghosh. But the defendant did not produce this Doctor who is best witness to prove the insanity of Indra Mohan and the degree of his insanity. It is also admitted that Indra Mohan is living under the care and guardianship of proforma defendant No. 4 Bhagaban. But Indra Mohan was not produced before the Court for Court's observation. The evidence adduced by the defendants was not accepted by the learned Additional District Judge himself, and, therefore, he had to fall back on the deposition of witnesses in a criminal case of the year 1951 over some of the disputed land. Even Exh. A (2), the alleged deposition of the plaintiff in the criminal case was not placed before him in course of his examination in Court in this case to enable him to explain his earlier deposition. Without presenting this document, Exh. A (2), I do not understand how can it be admissible in evidence against him. Exh. A (2) (1), the deposi tion of one Iswar Chandra, who is said to be dead by that time, is also inadmissible in evidence. The deposition of Hasan Ali in the criminal case in Exh. A (2) ~ (2). It is reported that Hasan Ali is also dead. The depositions in the criminal case can be used fot the purpose of corroboration and contra diction of evidence of particular witnesses only, but independently they are not . admissible in evidence, and Mr. Salam, the learned Advocate for the respondents is very frank in expressing his difficulty to support the admissi bility of these two documents, Exhs. A (2) (1) and A (2) (2). Mr. Salam relied on section 12 of the Contract Act which provides :‑ "A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effects upon his interests. " A person who is usually of unsound mind, may make a contract when he is of sound mind. " A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of un sound mind." Mr. Salam contends that under the facts and circumstances revealed in the case the burden lies on the plaintiff to prove that the Indra Mohan was of sound mind at the time when he executed the kabuliyat executed by the plaintiff and grant ing of rent‑receipts to the plaintiff. In support of this con tention he relied on a decision in the case of Mohanlal v. Vinayak (1961 C 661), where it has been stated. "No doubt the onus of providing insanity is in the first place on the person who alleges it, the normal presumption being of sanity. If, however, there is sufficient evidence to prove that the person whose mental capacity is in doubt is usually of unsound mind, then the burden shifts to the person who alleges his insanity to prove that the document was executed during a lucid interval." As to the proposition of law laid down in that case there is no doubt. From the facts of that case it appears that Govinda, the executants of a document was at times of unsound mind. It further appears from the deposition of his wife Jani, who must be the best informed person about her husband's mental condition, that Govinda used to behave well and give no trouble if he were to get his meals regularly and tobacco when wanted by him. In the circumstances, it has been held that when it is proved that the executor was of unsound mind at times, it is quite natural that the burden lies on the other side to prove that at the time when Govinda executed the document, he was of sound mind, and capable of under standing and forming a rational judgment of the facts of it. In the case of Attorney‑General v. Pernther ((1779) 29 E R 632), quoted in the Nagpur case the principle enunciated runs as follows: " If derangement be alleged, it is clearly incumbent on the party alleging it, to prove such derangement, if such derangement be proved or be admitted to have existed at any particular period, but a lucid interval be alleged to have prevailed at the period particularly referred to, then the burden of proof attaches on the party alleging such lucid interval, who must show sanity and competence at the period when the act was done and to which the lucid interval refers; . . and it certainly is of equal importance, that the evidence in support of the allegation of a lucid interval, after derangement at any period has been established, should be as strong and as demon strative of such fact, as where the object of the proof is to establish derangement." But this principle, in view of the facts and circumstances of, the present case, has got no application to the present case. It is purely a case of insanity of Indra Mohan as alleged by the defendants, and of sound mind as alleged by the plaintiff. Therefore, the circumstances, namely, the acceptance of the kabuliyat, presentation of the same before the Sub‑Registrar and granting of rent‑receipts, Exhs. 1 and 1 (a), clearly prove B or give rise to a presumption that Indra Mohan at the time of the kabuliyat and of rent‑receipt was of sound mind ; and if it is alleged by the defendants that he was of unsound mind, the burden lies on them to prove that, but they failed to prove it. The evidence they adduced are not sufficient to establish that Indra Mohan was insane at the time. The best evi dence, namely the evidence of Dr. Ghosh, they have not produced nor have they produced Indra Mohan before the Court for observation of the Court. The learned Additional District Judge could not rely on the evidence adduced by the defendants indepen dently of the inadmissible evidence, namely, of deposition in the criminal case, Exhs. A (2), A (2) (1) and A (2) (2). In the circumstances, the finding of the learned Additional District Judge cannot be accepted in preference to the finding arrived at by the trial Court.

11. As to the limitation, certainly it is not a dispossession by the landlord. Bhagaban, proforma defendant No. 4, did not claim any title from Indra Mohan, the alleged land lord. Further, it appears that the point of limitation was not pressed before the trial Court. If it was not so pressed how the defendant‑appellant was entitled to press it before the lower Appellate Court.

12. Mr. Salam for the respondents realising his difficulty contended that the case should be remanded to the lower Appellate Court to come to a finding independently of the inadmissible evidence, Exhs. A (2); A (2) (1) and A (2) (2). I am unable to accede to his request because of the fact that the learned Additional District Judge has already con sidered the evidence adduced by the defendants, and he could not rely on them absolutely. The witnesses on the side of the defendants spoke of insanity of Indra Mohan varying from 10 to 25 years. Therefore, he had to fall back on those inadmissible evidence, namely, the deposition in the criminal case. Had he not considered the oral evidence adduced by the defendants, and had he based his findings simply on the inadmissible evidence I would have sent the case back on remand. He has considered the evidence, but could not believe the evidence on the defence side on account of contradiction in their evidence. Further, the finding of the lower Appellate Court on those evidence is that Indra Mohan was insane for the last 10 years, which shows that he was not insane in 1939. In the circum stances, I am not inclined to send the case back on remand.

13. The result, therefore, is that this appeal is allowed with costs, and the judgment and decree of the lower Appellate Court are set aside, and those of the trial Court restored. A. H. Appeal allowed.