GOVINDASWAMI NAICKER Vs. KNSRINIVASA RAO

JUDGEMENT

(1.) Appeal No. 119 of 1933 : - This appeal arises out of a suit instituted for obtaining a declaration that certain transactions entered into by plaintiff 1 were void and for incidental reliefs. In the Court below, plaintiffs attacked three transactions evidenced by Exs. H, J and I. The lower Court dismissed the plaintiff's suit. Plaintiff 1 died pending the suit and the other two plaintiffs filed this appeal against the decree of dismissal. In the appeal the attack had been confined to Exs. H and I. Plaintiff 2 died during the pendency of the appeal and his legal representatives who were in the first instance added as respondents have since been transposed as appellants to continue the appeal along with plaintiff 3.

(2.) Plaintiff 1 was the father and plaintiffs 2 and 3 were his sons. Starting with little or no means, plaintiff 1 seems to have earned substantial sum by working for a number of years in Rangoon and he acquired some immovable properties both in Rangoon and in the Chingleput District here. About the middle of 1927, when he was about 58 years old, plaintiff 1 is said to have developed symptoms of unsoundness of mind. The exact nature of his malady will be discussed presently; but, notwithstanding this state of health and mind, he does seem to have taken part in some transactions in the latter part of 1927 and in the first part of 1928. Amongst them are Exs. H and J, two sale deeds dated 19 December 1927 and 5 May 1928 executed by defendants 1 and 2 respectively in favour of plaintiff 1. On 26 April 1928 plaintiff 1 executed a deed of settlement (Ex. I) in favour of defendant 4 who is his daughter. This suit was instituted in March 1929 by plaintiff 1 represented by plaintiff 2 as his next friend and by the two sons as plaintiffs 2 and 3. The father died a few months after the institution of the suit. The case made in the plaint was that from about the middle of 1927 plaintiff 1 who was an old man was suffering from senile dementia and was as such incapable of managing his affairs, that, taking advantage of that condition defendants 1 and 2 who took moneys from plaintiff 1 purported to sell their properties to him partly in repayment of the moneys thus taken and also in consideration of a promissory note executed by plaintiff 1 for the balance of the purchase money. As regards Ex. H, the plaint prayed that defendant 1 should be directed to repay the sums of money which he had received from plaintiff 1 and that the promissory note executed for the balance of the consideration should be declared void. As regards the settlement deed (Ex. I), it was alleged in para. 14 of the plaint that defendant 4 and her husband, defendant 3, had managed with the help of certain other persons to benefit themselves at the expense of the plaintiffs family and got the settlement deed executed by the demented plaintiff 1. It was also contended that the property thus settled was joint family property and that plaintiff 1 was on this ground also incompetent to make the settlement.

(3.) The defendants denied the alleged incapacity of plaintiff 1. They also denied that the properties settled by Ex. I on the daughter were joint family properties. Defendant 1 in his turn instituted a suit (out of which the connected appeal arises) for recovery of the amount due under the promissory note which had been executed by plaintiff 1 for the balance of the consideration. The two suits were tried together and the learned Subordinate Judge dismissed the suit to set aside the transactions and passed a decree in plaintiff's favour in the promissory note suit. The learned Subordinate Judge was of opinion that though plaintiff 1's mental condition was probably not quite all right in or about July 1927, there could be no presumption that the lunacy continued; and in view of the evidence furnished by other transactions alleged to have been entered into by plaintiff 1 after this date, he held that the evidence was not sufficient to hold that Exs. H and I were brought into existence at a time when plaintiff 1 was actually of unsound mind.