P L D 1993 Lahore 232 (PLP)

This is a regular second appeal against the decree of the District Judge, Jhang dated 4-9-1967, affirming the decree of the Administrative Civil Judge, passed on 11-3-1967 whereby the suit filed by the respondent-plaintiff was decreed.

2. The dispute between the parties relates to land measuring 72 Kanals, 16 Marlas situate in Chak No.503/J.B., Tehsil Shorkot, which was owned by Nazar Sultan, respondent herein, who purportedly sold it to the appellant for Rs.9,000 through a deed dated 23-12-1963 which was registered on 18-4-1964. On 7-12-1964, he, through his next friend, Sardar Shah son of Hassan Shah, filed a suit, claiming possession of the land and alleging that the sale was void as he was not a person of sound mind.

3. The suit was resisted by appellants. On the pleadings of the parties, following issues were framed by the Trial Court:-- (1) Whether the plaintiff was a person of unsound mind and had no capacity to enter into contract of sale with respect to the suit land? OPP. (2) Whether the sale of the suit land is without consideration? (3) Whether the suit is correctly valued for the purpose of court-fee and jurisdiction? OPP (4) Relief. In order to prove his case, the plaintiff examined Amir Shah P.W.1, Ghulam. Hussain P.W.2, Sikandar Hayat, P.W.3 Zafar Hussain P.W.4, Dr.Fateh Khan P.W.5, Nazar Hussain Lumberdar P.W.6, Bahadar Khan P.W.7 and Sarwar Shah next friend of the plaintiff as P.W.8. In rebuttal the appellants produced 8 witnesses and Nazar Sultan appellant No.1 appeared as D.W.9. On the basis of the evidence, the trial Court found that at the time of execution of sale-deed, the plaintiff-respondent was of unsound mind and, therefore, the sale-deed executed by him was of no legal consequence. The trial Court also highlighted certain other aspects to demonstrate that the sale deed was fraudulent. On appeal the findings of the trial Court regarding the incapacity of the respondent to execute the sale-deed were upheld.

4. The learned counsel for the appellants has argued that as the matter in issue between the parties relates to the mental state and capacity of the respondent to execute the sale-deed, it was incumbent upon the Court to have itself questioned the respondent and also have him medically examined by a Board of Specialists. In support of this contention, the learned counsel has relied upon Mst. Jamila Begum Vs. Awamun Nas etc. (PLD 1978 Lahore 1376).

5. I regret my inability to agree with the learned counsel. The case relied upon by him is entirely distinguishable as it arose out of proceedings under the st ~. Lunacy Act, 1912 while the present appeal has arisen out of a civil ui The scope of two proceedings is entirely different. In matters brought before the Court under the Lunacy Act, 1912, the Court acts in locus parentis and lis, strictly speaking, is not inter parties. In these proceedings, if sufficient evidence is not brought on record, it becomes the duty of the Court, acting as guardian of the lunatic to take all possible measures to protect his interest. However, in an inter parties dispute, it is for them to prove their cases by leading sufficient i evidence. This distinction becomes clear from following passage at page 1380 of Mst. Jamila Beguin v. Awamun Nas etc. (PLD 1978 Lahore 1376):-- (9) The learned District Judge has treated this case as that of a dispute between party and party who are thereby thrown into the vortex of litigation, the intention of one party being merely to hit the other or to avenge itself. (10) This is not the object of the Lunacy Act. This Act confers upon the Courts the powers of pater patriae as a father over his children. The Act deals with the care of lunatics and idiots in the same manner as the Guardians and Wards Act provides for the inherent prerogative of the Courts acting as o prudent natural parent of the infant. (11) The object of inquisition is to find out whether a person is, in fact, of unsound mind or idiot to bring him within the four corners of the Act and after finding him so disabled to look after his person and property and to make arrangement for their custody. The learned -District Judge has found in this inquisition Abdus Salain to be a lunatic and yet has dismissed the application without making proper arrangement of his property which to all intents and purposes is the motive force behind the application under the Act. In this view of the matter, argument of the learned counsel that it was duty of the Court to examine the respondent itself or to have him medically examined cannot be accepted. 6. it was next argued by Mr.Muhammad lqbal Sargana, learned counsel for the appellants that the findings recorded by the Courts below to the effect *that Nazar Sultan was insane, were not correct. This contention of the learned counsel is unfounded. Both the Courts, after thorough appraisal of evidence and considering all the aspects of the matter, have found it as a fact that respondent was nota person of sound mind. The most important evidence in this respect is the medical certificate Exh. P5/1 and the statement of Dr.Fateh Muhammad P.W.5, who at the relevant time was Medical Superintendent, Civil HospQ Jhang. He stated that on 3-8-1965, he examined the respondent- plaintiff and found that he did not have full mental faculties and was not able to understand his affairs.

7. It was then argued by the learned counsel for the respondent that the evidence on the record only proves that respondent was feeble-minded having low intelligence quotient but not a person of unsound mind. Clearly there is a distinction between the feeble-mindedness and insanity but if feeble mindedness or low intelligence quotient is to such an extent that the person concerned is unable to understand or manage his affairs; he is an imbecile and, therefore, a person of unsound mind. This aspect was fully discussed in Mst.1 Jamila Begum v. Awamun Nas (supra) and, therefore, need not to be dilatedl upon. In the present case, according to the medical certificate Ex:P5/1, respondent was unable to understand his financial affairs and manage his. properties. Additionally, both the Courts below have relied on oral evidence produced by the respondent-plaintiff to hold that he was a person of unsound' mind. The findings recorded by them in this behalf are unexceptionable. I

8. Perusal of the medical certificate Exh.P5/1 also shows that thumb impression of Nazar Sultan had been obtained by the doctor upon medical certificate. Marks of identification were also mentioned. The learned counsel has further argued that there was no evidence to show that the person examined by Dr. Fateh Muhammad (P.W.5) was in fact the plaintiff. In this respect, suffice it to say that no question in this regard was put to the witness when he appeared in the witness box nor was identity of respondent challenged.

9. The trial Court as also the District Judge had noted that although sale-deed was presented for registration on 2nd January, 1964 but it was registered only after 18th July, 1964 when it was represented. The learned trial Court had also taken into account interpolation made in the endorsement which is evident on the face of the document. In the written statement, the appellants had stated that medical certificate was produced before the sub registrar at the time of registration of sale-deed. That certificate had not been produced by the appellants but had been withheld. From the above circumstances, the Courts below had justifiably drawn presumptions again SL the appellants. For the reasons above, this appeal is found to be without any force and is dismissed. The parties shall, however, bear their own costs. M.BA./S-248/L Appeal dismissed