P L D 1964 Supreme Court 329 (PLP)

B. Z. KAIKAUS, J.

This appeal arises out of a dispute of the property left by Khan Sahib Syed Phallu Shah of Lasuri district Multan who appears to have left behind him a large area of property in a number of villages. He had four wives and four sons, one from each wife. One of his sons that is Ashiq Shah died during his life-time leaving behind him a son Nazir Ahmad Shah by name. The other three sons Muhammad Akbar Shah, Muhammad Yusuf Shah and Muhammad Rafi Shah are along with Nazir Ahmad Shah parties to the dispute. Syed Phallu Shah died in December, 1942. On 9th January 1942, a will by Syed Phallu Shah relating to the whole of his land in nine villages was registered in favour of his son Muhammad Yusuf Shah respondent at Chunian where Muhammad Yusuf Shah was at that time posted as Zilladar. The deceased was governed by agricultural custom in accordance with which ancestral land was not alienable except in certain circumstances. He had ancestral land in mauza Lasuri where he resided and he had self-acquired property in nine other villages which if this will was otherwise valid would pass to Muhammad Yusuf Shah respondent. On the death of Syed Phallu Shah a mutation on the basis of this will was entered in favour of Muhammad Yusuf Shah respondent and was sanctioned. Muhammad Akbar Shah who is the appellant in this appeal filed an appeal against the mutation order before the Collector which was dismissed on the 23rd July 1943. Seven years after the order of the Collector that is on the 2nd February 1950, Muhammad Akbar Shah filed the suit out of which this appeal arises for possession of his share of the land which had been mutated in favour of Muhammad Yusuf Shah respondent. He impleaded his brother Muhammad Rafi Shah and his nephew Nazir Ahmad Shah pro forma-defen dants. He attacked the will on the ground that the deceased was insane and at least possessed no disposing mind and the will was the result of the undue influence. He even took the plea that the will was a forged one. All the defendants opposed the claim. The following issues were framed (1) Is the suit barred by time (onus objected) ? (2) Did Syed Phallu Shah deceased make the alleged will and was he of sound disposing mind at that time ? (3) Was Syed Phallu Shah deceased of insane mind before or at the time of the execution of this will ? (4) Is the will in dispute forged one ? (5) Is the will void for uncertainty ? (6) Is the will void as it was executed secretly and under undue influence ? (7) Is the will void as Syed Phallu Shah was not competent under law, Shariat and equity to make the will as he did ? (8) Relief. The Senior Civil Judge, Multan, who heard the suit found on the question of limitation in favour of the plaintiff. All the attacks on the validity of the will were rejected excepting those which are contained in issues Nos. 2 and

3. The Senior Civil Judge was of the opinion that the deceased had not been proved to be of sound mind when he executed the will. On the basis of this finding he decreed the suit. Against this decree Muhammad Yusuf Shah defendant appealed to the High Court. The learned Judges of the High Court dealt only with the question of limita tion and held that the suit was governed by Article 120 of the Limitation Act and was time-barred. The learned Judges of the High Court granted, however, a certificate for appeal to this Court. It appears to us for reasons which will presently be recorded that the question of limitation could not be decided without first determining whether the deceased was, at the time when he made the will, of a sound disposing mind. We proceed, therefore, to consider this question. A good deal of oral and documentary evidence was led by the parties on this point. The plaintiff produced as many as ten witnesses one of them being a hakeem. The hakeem stated that Syed Phallu Shah deceased had an attack of paralysis in 1936 and had been under his treatment. He had improved by the treat ment and had regained his normal mental condition. Five or six years later the deceased was again under his treatment as he was "not intellectually quite fit" and could not give any intelligent answer. The witness gave him some medicine, but did not know whether he had any improvement. He was generally quiet and when he answered questions put to him the answers were some times proper and sometimes otherwise. The substance of the evidence of the remaining witnesses some of whom are related to the deceased is that he had an attack of paralysis in 1936 and that his brain had been affected. A number of documents were also relied upon by the plaintiff. On the 12th May 1939, Muhammad Rafi Shah who was acting as the sarbarah of his father bad made the following statement :- "Rs. 771-14-0 were outstanding against us out of which Rs. 100 have been deposited so far at this time. Rs. 671-14-0 stand as balance. Rs.150 are due from the baqldars. An application has been made in this behalf. Our personal revenue is, however, due. Fifteen days time may be allowed. Payment would be made. My father is ill and has gone to my brother to Chunian for treatment. He has become of unsound mind." On the 4th December 1941, Ram Lal girdawar kanungo of the halqa in which village Lasuri was situated made the following report :- In the matter of office robkar for preparation of a case against Khan Syed Phallu Shah lambardar and Suffaid Posh station mauza Lasuri, tehsil Shujabad. The report of the patwari is a detailed one. Khan Sahib Phallu Shah himself is not in a position to be a lumbardar because he has become mentally deranged. Hence this report. In an inquiry into a benami transaction pending before a Special Tehsildar in Multan to which the deceased was a party one of the parties that is Karam Hussain Shah had challenged the sanity of the deceased by making the following statement :- Khan Sahib Syed Phallu Shah has been of unsound mind for the last three years. He produced the power-of-attorney on the 7th October 1939. If be is of disposing mind why has not appeared so far. The power-of-attorney is fictitious. Khan Sahib should appear himself. He should also produce the certificate after getting himself medically examined by the Civil Surgeon Multan. It will be then that the statement of Syed Yusuf Shah would be regarded as correct otherwise wrong. I am prepared to pay the fee. If be does not appear then he should be summoned as my witness. Reliance had also been placed on statements made by the deceased on 25th May 1938 and the 30th June 1938, where he stated that he is ailing though improving and that, therefore, Muhammad Rafi Shah sarbarah may be appointed for him. Muhammad Yusuf Shah produced as many as twelve witnesses who deposed to the fact that the deceased was of sound mind. They included Mirza Azam Beg, P. C. S., Sheikh Aftab Ahmad, Sub-Registrar, who bad registered the document and Ch. Nazir Hussain, an Agricultural Assistant, who was an attesting witness of the will and who had identified the deceased before the Sub-Registrar Sheikh Aftab Ahmad Sub-Registrar had stated that he had found the deceased to be of sound mind when he registered the will, A similar statement was made by Nazir Hussain and Mirza Azam Beg. Muhammad Yusuf Shah also produced some documentary evidence. On the 7th of October 1939, the deceased had got registered a joint power-of- attorney in favour of Muhammad Akbar Shah plaintiff, Muhammad Yusuf Shah and Nazir Ahmad Shah defendants and one Ladha Ram who was a servant, for the purpose of represent ing the deceased before Government Departments and before Courts. On the 27th April, 1940, he had executed another power -of attorney in order to grant to the persons mentioned as agents in the previous power-of-attorney the power of granting lease too. Copies were also produced by Muhammad Yusuf Shah of two applications made by the deceased and three statements made by him before the Revenue Officers wherein the deceased had said that on account of old age and illness he was not able personally to attend to the duties of lambardar or sufaid posh and that a sarbarah may be appointed for him. It does appear from this evidence that the deceased was at some time intellectually not normal. Muhammad Rafi Shah defendant had made a statement on the 12th May 1939 that he had become insane and bad been taken away by Muhammad Yusuf Shah defendant for treatment to Chunian. The report of the girdawar kanungo and the challenge of Karam Hussain also suggest that the deceased was not at that time altogether normal. However, the question before us is not whether his brain had to any extent been affected, but whether he was incapable of under standing the nature and consequence of his act in executing the will in favour of Muhammad Yusuf Shah defendant on the date when he executed the will. The finding of the Senior Civil Judge himself is that for about two years he had lived at Chunian before he returned to his village. He had returned to his village only few months before his death. The will was executed during his stay at Chunian. The witnesses produced by the plaintiff come q from Lasuri or from neighbouring villages and do not profess to have any knowledge of the deceased when he was at Chunian. The statement of Muhammad Rafi Shah is of 12th May 1939, and the will was executed in the beginning of 194.2. What we have to consider is the state of the mind of the deceased on the 9th of January 1942. The Sub-Registrar has stated that he found the deceased to be mentally sound and the same is the statement of Ch. Nazir Hussain, Agricultural Assistant. Neither of them is shown to have any reason for making an untrue state ment. The only cause of the lack of mental equilibrium of the deceased is stated to be an attack of paralysis in 1936. While such an attack may affect the intellect to some extent it does not necessarily prevent the existence of a sound disposing mind and there are on the record facts which point to a conclusion that he was quite capable of understanding his affairs.. A perusal of the power-of-attorney which he executed in favour of Muhammad Akbar Shah, Muhammad Yusuf Shah and Nazir Ahmad Shah defendants and Ladha Ram a servant will show that he was quite careful in granting the power-of-attorney. It is a lengthy document which grants power in detail for representing the deceased before Courts and Government Departments and in the end adds : "If any property is attached in execution of a decree under the misconception that it belonged to the judgment debtor, they may duly file an objection petition and redeem the property. But the general attorneys shall not be competent to alienate any movable or immovable property by mortgage, sale o exchange etc., nor shall they be competent to raise any sort o debt in my name. This power-of-attorney shall apply to Ladh Ram General Attorney, aforesaid, till he is in service and after his leaving the service this power-of-attorney shall become ineffectual so far as he is concerned, that this power-of-attorney shall be considered null and void as against him. In short the general attorneys shall be competent jointly and severally to pursue the above subject-matter up to the High Court. I will have no objection." Not only was there no power to sell or mortgage, but even a power of lease had not been granted to the agents and it was for this reason that the second power-of-attorney had to be granted in order to empower the agents at least to lease out the property. Muhammad Akbar Shah plaintiff had thought fit to deny the signature of his father on the power-of-attorney presumably because he found it difficult to give any explanation for it. The statements which the deceased made before the Revenue Officers are also significant. They are quite detailed statements. They refer to his illness which surely could not be insanity. At one place rheumatism is specifically referred to. The disputed will itself contains some evidence that he was applying his mind to the disposition of the property which he was making. He willed his self-acquired property in favour of Muhammad Yusuf Shah defendant, but at the same time made the maintenance of the widows and the marriages of the daughters the responsibility of Muhammad Yusuf Shah defendant. So, although there is some evidence of the brain having been affected to some extent the evidence cannot prove that on the 9th January 1942, the deceased had no disposing mind and there is the evidence of the Sub Registrar as well as Ch. Nazir Huisain relating to that very day that he was normal. Even an insane person may have lucid intervals, but in this case in view of the evidence that we have it is difficult to hold that the deceased was ever insane and if there was only some imparing of the intellect that would not establish that on the 9th January 1942, he was Incapable of understanding the nature of the deed that he executed. No doctor who had been treating the deceased has been produced. There is also a significant fact that the plaintiff waited for about seven years before filing the present suit. A sound disposing mind means only the capacity to compre hend the nature and effect of the will which the person concerned is executing. It is relative for what is to be considered is whether the deceased could understand the nature a and effect of the parti cular document which was being executed. The question to be considered is whether the deceased in this case was capable of appreciating that he was willing away the whole of his self acquired property to one of his sons and that he was depriving his other sons. This was not a complicated transaction which required any strenuous intellectual effort on the part of the deceased. The contents of the power-of-attorney and of the statements which he made before the revenue officers do not support the inference that he did not understand the value of the property he was bequeathing or the fact that he was transferring it to one of his sons to the exclusion of others. In this connec tion a passage in the judgment of the Privy Council in Sajid Ali v. Ibad Ali (23 Cal. 1), a case in some respect similar to the present case, may be quoted with advantage. Their Lordships say "It is hardly necessary to observe that a permanent paralytic affection, whilst it must to some extent diminish the physical energy of the sufferer, does not necessarily impair his mental powers to such an extent as to render him incapable of transacting business or of executing a will. Even in cases where the mental faculties of the person affected have been greatly enfeebled by physical weakness, he may still be capable of devising and intelligently executing a will of a simple character, although unfit to originate or to comprehend all the details of a compli cated settlement." We would hold that the deceased did possess a sound dispos ing mind for the making of this will. We turn now to the question of limitation. The suit before us is one for possession and prima facie should be governed by Article 142 or

144. It is a settled principle however, that when the relief which a plaintiff seeks cannot be granted unless he succeeds in securing as a foundation for his relief another relief the suit cannot be filed after the expiry of the limitation for a suit for such other relief. If this principle were not adopted the provisions of the Limitation Act would be defeated. If in order to obtain the relief of possession in this case it be essential for the plaintiff to secure a decree for setting aside the will before he is granted possession then the suit would be governed by the, Article which applies to a suit for setting aside the will. The question therefore is, whether it is essential for the plaintiff to secure a decree for setting aside the will. The principle which is applicable cannot be disputed either on authority or in reason. The principle is that if the transaction which is sought to be set aside was a voidable one, it is essential that the transaction be set aside. If it be not voidable, but void, the question of setting it aside would not arise. As to whether a transaction is voidable or void there is a simple criterion : did the transaction create any legal effects, that is, did the transaction transfer, create or ter minate or otherwise affect any rights ? In a void transaction no legal effects are produced. In a voidable transaction legal effects are produced but some person has the right to avoid the transaction and if he exercises that option the process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities). If the Court which is dealing with the question of limitation reached the conclusion after considering the evidence before it that the transaction in dispute by its own force produced legal effects it would be necessary that the transaction be set aside and limitation will be governed by the article applicable to the setting aside of the transaction. If it comes to the conclusion that by itself the transaction produced no effects no need for setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a transaction which prima facie looks valid and in relation to which the burden of proof will be on the) party alleging its invalidity. There may be a document in existence) a registered deed of sale or mortgage or some other transaction, which is by presumption genuine and the person who purports to be its executant may have the burden on him to show that it is a forgery. Still it is not a voidable transaction because ultimately when the Court comes to the conclusion that it is a forgery it will be found that in fact the document never affected any right. That is the criterion for determining whether a document is void or voidable. Its apparent validity or the question of burden of proof is in this respect irrelevant. No person is bound to sue for setting aside a document just because it is raising a presumption against him. There is no need for the person who is shown to be the executant of the forged document to sue for its cancellation or for setting it aside though he may be taking a risk in allowing the document stand for proof of forgery may become difficult as time passes. A transaction which is not genuine may have been incorpo rated even in the revenue records which have a presumption of cor rectness. Still there is no need to have the transaction set aside for revenue records are only evidence of it and do not affect title. If the Court finds that there is no true basis for the entry in the record-of-rights its conclusion would be that there never did exist any transaction which affected any rights. "Setting aside" is wholly inappropriate for a document which has produced no legal effects though the expression is sometimes loosely used in respect of a declaration of invalidity of a document. Examples of voidable transactions are a contract made under coercion or undue influence or even fraud, a compromise of a case by guardian of a minor without permission of the Court, and an alienation of ancestral property by a holder of such property under custom. All these transactions are good and valid and they do affect rights, but a person has the option to have undone what the transaction has done. In the present case if the Court reached a conclusion that the testator had no sound disposing mind when he made the will there would be no need to have the will set aside. A sound disposing mind is a matter relating to testamentary capacity. A person who has no sound disposing mind does not posses the capa city to make a will and if he purports to make a will it cannot be said that legally there is any will in existence. When it is said that a person has no sound disposing mind for making a will it mean that he was not comprehending the nature of his act. Dispositions are made not by the band that signs the deed, but by the intellect that comprehends the transaction embodied in the deed. The signing has value only as presumptive evidence of such compre hension. We uphold the decree if the High Court on the ground that the testator did possess a sound disposing mind and the plaintiff fails on the merits. This appeal is dismissed but there is no order as to costs. A. H. Appeal dismissed.