SUBBA NAICKER Vs. SOLAIPPA NAICKER

JUDGEMENT

(1.) This suit was brought on a mortgage dated 10 August, 1917, by the plaintiff as assignee from the mortgagee, the 6 defendant. Defendants 1 to 3 are the mortgagors. The 4 defendant since deceased was the father of the mortgagee and the 5 defendant is the son-in-law of the 4 defendant. The questions in dispute in this case arose from an order by the District Judge of Tinnevelly adjudging the 6 defendant a lunatic by an interim order dated 28 October, 1919, which was confirmed after security given on 16 January, 1920, by which the 4 defendant, his father, was appointed guardian of the person and manager of the property of the 6 defendant. The assignment by the 6 defendant of the mortgage was dated 11 June, 1923, i.e., some three and a half years after the order in lunacy and while it was still in force. The 6 defendant soon after the assignment, i.e., on 17 July, 1923, applied to have the order against himself set aside and it was set aside on 31 August, 1923, on the ground that he had ceased to be insane.

(2.) The dispute in the case was based upon two contentions. First, the 5 defendant contended that the same mortgage right had been assigned to him by the deceased 4 defendant acting as the guardian of his lunatic son in March, 1919, and that therefore the 6 defendant was himself incompetent to assign it a second time. This assignment both the Lower Courts have rejected as affording any valid defence because the 4 defendant was not authorised to transfer the property of his son even though the latter were a lunatic because at the time of the alleged assignment he had not been appointed manager of the property and in fact had not even applied to be so appointed.

(3.) The other defence of the mortgagors, defendants 1 to 3, was that the plaintiff's assignment gave him no right to sue because it was executed at a time when the lunacy order was in force and when the management of the lunatic's property was entrusted to the 4 defendant who was appointed manager by the Court. On this question the District Munsif has really not said anything definite because he did not consider the question in that way. But he seemed to have considered that the order in lunacy was itself incorrect because it appeared to him to have been procured to defeat a suit brought against the 6 defendant by a creditor on a promissory note. On that ground he held that the 6 defendant was never really insane and that therefore the plaintiff's assignment was valid. As to this, however, although an order in lunacy is not a judgment which is conclusive against the world as one of the judgments enumerated in Section 41 of the Evidence Act it is still relevant and binding upon the parties thereto and those who claim under them just like any other judgment of a Civil Court. On that ground, to put it at the lowest, it is not open to the 6 defendant now to contend that the order finding that he was a lunatic on the date of the order was incorrect and the plaintiff who claims by a subsequent alienation of the 6 defendant's property is in the same circumstance. The plaintiff being therefore bound by the order as far as it goes, the real question is how far it does go? On the one hand the appellant says that in spite of the order it is open to a subsequent alienee from a lunatic so found on inquisition to show that at the time of the alienation the lunacy did not exist. On the contrary the respondents contend that a subsequent alienee is not entitled to give such proof because the alienation by the lunatic who has been found such by inquisition is of no effect whatever as the management of the property is by Court entrusted to the hands of the mortgagor. This is really the only question in the appeal although several matters have been extensively argued. On this point there seems to be no Indian authority directly in point. The cases in Debi Charan v. Raghuber Dayal (1912) 16 I.C. 885, Bishambar Nath V/s. Parbati (1918) 52 I.C. 609 (2) and Court of Wards V/s. Kupulmun Singh (1873) 10 Beng. L.R. 364 which were cited are really of no use to the point. But English authority is clear and conclusive. In In re Walker A Lunatic so found (1905) 1 Ch. 160 the Court of Appeal held that When a person has been found lunatic by inquisition, so long as the inquisition has not been superseded, but continues in force, he cannot, even during a lucid interval, execute a valid deed dealing with or disposing of his property. The Court will not recognise such a deed even by directing proceedings to be taken to try the question of its validity or to perpetuate testimony as to the state of the lunatic's mind when it was executed, but will treat the deed as entirely null and void.