2001 PLP 97 (CLC)

‑‑‑‑S. 3(5)‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑ Plea of lunacy‑‑‑Suit was filed assailing alienation of suit property on the ground that the appellant was lunatic and any transaction on behalf of the appellant was void transaction‑‑‑Trial Court decreed the suit‑where

As Lower Appellate Court dismissed the same as to the Court, the appellant was not a lunatic and guardian of appellant was appointed in oblivion of the provisions of Lunacy Act, 1912‑‑‑Validity‑‑‑Where the appellant appeared in Trial Court voluntarily as a witness, the judgment of Lower Appellate Court was not open to interference. Muhammad. Munir Paracha for Appellants. Ajmal Kamal Mirza for Respondents. Date of hearing: 20th December, 1999. The appellant Muhammad Hanif was owner of the land measuring 94 Kanals and 18 Marlas. He executed general power of attorney dated 12‑7‑1962 (Exh.D.l) in favour of respondent No.2 who was his maternal‑uncle. Respondent No.l filed an earlier civil‑suit on 20‑11‑1965 that he had purchased the property from the appellant Muhammad Hanif in consideration of Rs.16,

000. The appellant and‑ respondent No.2 appeared before the learned Civil Court and submitted their written statements admitting the claim of respondent No. l on the same day. The suit of respondent No. l was decreed vide judgment and decree dated 20‑11‑1965. Muhammad Ayub first cousin of the appellant made an application before the learned Civil Judge/Guardian. Judge that the appellant was lunatic and was unable to protect his rights and that he be appointed as guardian of the property of the appellant. The application of Muhammad Ayub was accepted vide order dated 1‑4‑1966 passed by the learned Guardian Judge, Jhelum. Thereafter, Muhammad Ayub being guardian of Muhammad Hanif filed the present civil suit, in that, Muhammad Hanif was not competent to appoint respondent No.2 as his attorney so as to sell his property to respondent No.

1. The civil suit was decreed by the learned Administrative Civil Judge, Jhelum, vide judgment and decree dated 13‑5‑1969. However, the appeal of respondent No. l was accepted .vide impugned judgment and decree dated 9‑3‑1971 passed by the learned District Judge, Jhelum and the suit of the appellant was dismissed with costs throughout.

2. The learned counsel for the appellant Muhammad Hanif argued that the appellant had been adjudged to be a lunatic by the Court of competent jurisdiction. Tile power of attorney (Exh.D.1) and the subsequent sale by respondent No.2 on behalf of the appellant were void transactions which could not be ratified. The preliminary issues framed by the learned trial Court as to the appellant of being unsound mind and of mental infirmity incapable of protecting his interest were decided in favour of the appellant. The learned counsel read out the statement of the appellant made before the ; learned trial Court in order to show that the appellant was not a person with a sound mind. It was further submitted that undue haste was shown by the: respondents in obtaining the consent decree dated 20‑11‑1965 which was bogus and had been procured by fraud. The due consideration amount was not proved. The learned District Judge ok an erroneous view that the appellant was a man of good sound mind and ought not to have believed the medical evidence. There was sufficient evidence to show that the, appellant was born idiot who could not protect his own interest. It was lastly submitted that the oral evidence by the witnesses who had been living with the appellant since his childhood could not have been overlooked.

3. On the other hand, the learned counsel for the respondents argued that the learned District Judge had recorded findings of fact on each issue based on proper appreciation of evidence which did not call for any interference. It was further submitted that the learned Guardian Judge was not empowered to adjudge the appellant as a lunatic as such power was vested in the District Court and that the procedure provided by sections 62, 63 and 71 of the Lunacy Act, 1912 was not followed. It was further argued that an order, if made, by a District Court, was appealable to the High Court under section 83 of the Lunacy Act, 1912.

4. I have heard the learned counsel for the parties at length and have gone through the record of the, case. The appellant had himself appeared before the learned trial Court who was extensively cross‑examined. The appellant seems to have answered all the questions put to him during cross‑examination. The question of the lunacy cannot be determined by merely referring to' the statement of a person. A lunatic should Abe of unsound mind as well as incapable of managing himself and his affairs. There is nothing on record to show that the appellant suffered from legal insanity. He himself voluntarily appeared in the Court as a D.W. and not as P.W. The impugned, judgment by, the learned appellate Court dismissing the civil. suit of the appellant was, therefore, not open to interference in the circumstances. It seems that the proceedings of appointment of Muhammad Ayub as a guardian of the appellant Muhammad Hanif were taken in oblivion of the provisions of the Lunacy Act, 1912. As the learned Civil. ludge/Guardian Judge was not a District Court under the said Act.

5. For the foregoing reasons, this appeal fails and is dismissed with no order as to costs. Q.M.H:/M.A.K./M-98/L. Appeal dismissed.