BAIJU LAL PATHAK Vs. SMTMAINA DAI

JUDGEMENT

(1.) This appeal arises out of a suit brought by Srimati Maina Dai as one of the three sisters of Babu Lachhuman Lal Pathak (who died in February 1932) for recovery of her one-third share in the properties left by her brother. Some of the properties claimed by her stood in the names of defendants to 9, but the suit failed in respect of them, and we are not concerned with them in this appeal. Baiju Lal Pathak, defendant 3, was a first cousin of Lachhuman Lal, and he resisted the plaintiff's claim on the ground that he was joint with Lachhuman Lal and was entitled to the properties, and had actually taken them by right of survivorship. This plea was overruled by the lower Court, and Baiju Lal appeals.

(2.) It appears that shortly before the institution of the suit there was a proceeding under Section 144, Criminal P.C., between Srimati Maina Dai and Baiju Lal, in which the latter succeeded. Before the first date fixed in the suit a written statement was filed on behalf of Baiju Lal admitting the plaintiff's claim. The case came on for hearing about a year afterwards; and when 7 or 8 witnesses had been examined for the plaintiff, a petition was filed by the mother of the appellant, alleging that he was of unsound mind and asking that she may be allowed to act as his curator in the case. The learned Subordinate Judge directed the mother to have defendant 3 examined by the Civil Surgeon and said that her application would be considered after taking into account the evidence of the Civil Surgeon.

(3.) The Civil Surgeon apparently examined defendant 3 the next morning, but wanted to examine him again before giving an opinion about the mental condition of defendant 3. The learned Subordinate Judge did not consider it desirable, in view of the stage that the case had reached, to give further time to the mother of defendant 3 to produce evidence regarding the mental condition of defendant 3 or to appoint her as curator without any evidence. He therefore ordered that "defendant 3 may, if he likes, appear in the case and give proper evidence." Shortly afterwards a petition was filed stating that his previous written statement had been filed "under undue influence of the plaintiff and her husband," and that he was a man of weak intellect. Upon this allegation the learned Subordinate Judge thought fit to postpone for a day the cross-examination that was going on, in order to investigate the circumstances in which the written statement had been filed.