Saji Koduvath, Advocate, Kottayam.

Section 11 and 12 of the Contract Act

Under Section 11 of Indian Contract Act, 1872, for executing a valid contract, the parties to the same should be of sound mind.  Section 11 and 12 of the Contract Act reads as under:

•  “Sec. 11. Who are competent to contract:-Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
• Sec. 12. What is a sound mind for the purposes of contracting.—A person is said to be of sound mind for the purposes of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interest.
• A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.”

Contract by a person of Unsound Mind is Void as that of a Minor’s contract

In RD Somasundaram Pillai, by next friend S. Bhuaneswar v. S. Janaki Ammal, 1955-1 MLJ 310, it was observed that a contract by a person of unsound mind is void as that of a minor’s contract. Both are void ab initio and there is no need therefore in any suit or proceeding where such persons seek relief to have the cancellation of such a document. They might ignore the existence of such a document as being void and of no effect and proceed to establish their right to other reliefs consequent on the transaction being void. (Also see: J. Kasthuri v. Seth Ghanshamdas Vonsimal Deva Bank, 1979-2 MLJ 11; Muhammad Khalilur Rahman Khan v. Mohammad Muzammilullah Khan, AIR 1933 All. 468)

Onus to Prove Unsound Mind

In a matrimonial case alleging schizophrenia, in Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260, it was observed that the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.

In Sudama Vs Rakshpal Singh, 2013-6 ADJ 714: 2013-99 All LR 351, pointed out that the onus to prove that a person is of unsound mind would be upon the party who alleges it.

In Subrah-manya Sastry v. Lakshmi-narasamma, AIR 1958 AP 22, held as under:

• “A lunatic is not a person who is continuously in a state of unsoundness of mind and once it has been established that a person is a lunatic, the burden of proof is on the party who alleges that a document he relies on as having been executed by the alleged lunatic was executed by him during a lucid interval“.

Sound-mind: Criterion is Capability to understand, rationally

In R. Kameswara Rao v. B. Suryaprakasa Rao, AIR 1962 AP 178, it was observed, in the context of Section 59 of Succession Act, 1925, that the words ‘sound mind’ does not mean that the testator should have his mental faculties in their fullest vigour, but he should have the capacity to understand nature of his property, the memory to remember the relations and persons normally having claims on his bounty and also a judgment of his own in making the dispositions. In Sudama Vs Rakshpal Singh, 2013-6 ADJ 714; 2013-99 All LR 351, it was opined that this proposition can be applied to a case of contract also with appropriate modification.

In Mahomed Yakub v. Abdul Quddus, AIR 1923 Pat 187 it was laid down as under:

• “….. the test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest, . There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test …..Mere weakness of mind is not sufficient…..” (Quoted in: Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491.)

In Amina Bibi v. Saiyid Yusuf, AIR 1922 All 449, It is held as under:

• “Not being in a position to understand or to determine rationally whether it was likely to operate to his benefit by reassn of his mental condition, the lease must be held to be void and unenforceable.” (Quoted in: Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491.)

In Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491, it was observed that the party contracting must have the capacity to arrive at a reasoned judgment as to the consequences of the contract he is entering into; and it was pointed out that it did not necessarily, mean that a man must be suffering from lunacy to disable him from entering into a contract. It held further as under:

• “A person may to all appearances, behave in a normal fashion, but, at the same time, he may be incapable of forming a judgment of his own, as to whether the act he is about to do is to his interest or not, and to the contracts of such a person the law gives protection.”

Capability to understand rationally, whether a transaction undergoing is likely to operate to his benefit or otherwise is the criterion to determine the ‘soundness’ of his mind.

• See: Amina Bibi v. Saiyid Yusuf, AIR 1922 All 449.
• Ramesh Chandra Das v. Lakhan Chandra Das, AIR 1961 Cal. 518,
• Gordhandas Nathalal v. Bai Suraj, AIR 1921 Bom 193,
• Rajkumar Sen Chowdhury v. Ram Sundar Shaha, AIR 1931 PC 69.

Not mean – incumbent must be of a very intelligent mind set

In AEG Carapiet v. AY Derderian, AIR 1961 Cal 359, PB Mukharji, J., observed that, sound mind did not mean that incumbent must be of a very intelligent mind set; that the test of a sound mind could not be stretched to an absurdity; and it was not the test of a perfectly healthy and perfect mind. It was pointed out that the test of a sound disposing mind was, in law, a workable test, which meant, in plain language, an appreciation of fact that the man was making a will, an appreciation of the contents of that will and an appreciation of the nature of disposition that he was making having regard to the claim of affection and family relationship and claims of the society or community to which he belonged to. It was held that it was neither a hypothetical nor an impracticable test, as it was not the test of a psychologist or a psycho-analyst or a psychiatrist who in the modern age is prone to consider all human mind to be inherently unsound by nature and abnormal; nor was it the too Scientific test which would satisfy the highest technical medical examinations.

Limitation

In view of Section 12 of the Indian Contract Act, the act of disposition or contract will be void for want of competency to contract, due to the un-soundness of mind, from its very inception. In Musammat Amina Bibi v. Saiyid Yusuf .70 Ind Cas 968: ILR (1922) 44 All 748, it was held that no question of limitation arises in such a matter because it was void from its very inception.

Presumption in favour of Sanity

In Mahomed Yakub v. Abdul Quddus, AIR 1923 Pat 187, it was held as under:

• “….. The test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest. There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test …..Mere weakness of mind is not sufficient…..” (This decision is followed in Indar Singh v. Parmeshwardhari Singh, AIR 1957 Pat 491.)

‘Schizophrenia’, and Unsound mind

In Sudama v. Rakshpal Singh, 2013-6 ADJ 714; 2013-99 All LR 351, it was observed that even if it was assumed that a person suffered ‘schizophrenia’, that itself would not justify an inference that he was a person of ‘unsound mind’ so as to render him incapable of understanding the things as are perceived by a person of ordinary prudence and understanding. The High Court relied on Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 226. The Apex Court decision was followed in BN Panduranga Shet v. SN  Vijayalaxmi, AIR 2003 Kant 357, Vinita Saxena v. Pankaj Pandit, AIR 2005 Delhi 243.

In Clara Auroro de Brangenca v. Sylvia Angela Alvares, AIR 1985 Bom 372, it was observed that the acts done by a person who was suffering ‘schizophrenia’ of violent nature to the extent that he was admitted in Mental Hospital and was released on Parole, it could not be said that act, his transaction would be valid under Section 12 of the Contract Act, 1872.

Presumption on a Registered Document

As per Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. According to Section 114 (e) there is a presumption that the judicial acts and official acts have been regularly performed.

Section 32 of the Registration Act states as to who shall present a document for registration. Section 34(3) states that the Registering Officer shall thereupon:

•  “(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
•  (b) satisfy himself as to the identity of the persons appearing before him and alleging that he has executed the document.”

Section 35 provides that if the person executing the document appears personally before the registering officer and personally known to him, or if he be otherwise satisfied that he is the person, admits the execution of the document the registering officer shall register the document in accordance with sub-rule (2). The Registering officer may, in order to satisfy himself that the person appearing before him is the person he represent himself to be, or for any other purpose contemplated by this Act, “examine the person present before him in his office.” The Act further lays down that if any such person appears to the registering officer to be a minor, an idiot or a lunatic, the registering officer shall refuse to register the document. Section 36 confers the registering officer the power to enforce the appearance of executant and the powers of the civil court in that regard.  The endorsement under Section 58 is made by the Registrar after satisfying with the statutory requirements.

Registered Documents: Presumption – Genuineness

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:

• “The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

1. the date, hour and place of presentation of the document for registration :
2. the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
3. the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
4. any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

Is there Presumption as to Truth on Registered Will

On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 as under:

• “The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …

The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:

• “If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”

Registered deed: Presumption – Validly Executed

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, as under:

• “52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293, also it is a observed that a registered document carries with it a presumption that it was executed in accordance with law. The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72, as under: 

• “A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
  • “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “

Registration Certificate is a mode of proof under Section 67 Evidence Act

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:

• “The Privy Council said in Gangamoy Debi v. Troilukhya Nath  (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC) – ‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
• 15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
• 19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) : “…  It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
• We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

In Thithumma v. Rukhiya Umma, 2012-2 KLT(SN) 111  it is observed that normally a person is presumed to be sane and capable of understanding the things and the acts he does and to judge its consequences; such a normal man will not sign or execute a document unless he understands the effect and impact of that document upon his interest and the consequences thereof; and that this is the common course of human conduct or common course of public or private business. So, ‘if a person wants to abrogate this natural course of public or private business or conduct on the basis of any unusual or extra ordinary circumstance’, he must allege and prove that circumstance. It is further pointed out in this decision that in view of Section 114(e) of the Indian Evidence Act and Sections 32 to 36 of the Registration Act if a document is registered, it could be legally presumed that the registering officer had registered the document after  satisfying that the executant was not a lunatic ie. the executant, was capable of understanding the document and forming a rational judgment as to its effect upon his interest; unless the above presumption is rebutted or abrogated by cogent and convincing evidence so as to hold otherwise.

Non-Examination of Registrar

No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

No Detailed Enquiry under Order XXXII Rule 15 CPC

Judicial enquiry in court is sine qua non to determine, whether the alleged person of unsound mind is incapable of protecting his interest, by reason of any mental infirmity, before the return of the plaint filed against a person of unsound mind, under Order XXXII Rule 15 of the Code of Civil Procedure. The court shall examine the person, allegedly of unsound mind, by asking questions and an opportunity can be given to the party, who applies for appointing guardian also to put questions, if the party wants to do so, to test whether he is incapable to protect his interest when suing or being sued. The court has no power to return the plaint or interlocutory application seeking appointment of guardian, without numbering it, for want of  medical records to prove the unsoundness of mind (Sijo Varghese Vs. Dona B. Daisy, 2019-4 Ker HC 806).

Following Marci Celine D-Souza v. Renie Fernandez, 1998-1 Ker LT 888, and referring to Pankajaksha Kurup v. Fathima, 1998-1 Ker LT 668, it is observed in Krishnankutty v. Veena MG, AIR 2012 Ker 166, that there is no necessity for conducting a detailed enquiry under Order XXXII Rule 15. It is pointed out that the position is not the same if such a person figures as the defendant in a suit and a decree is obtained against him without a guardian appointed for him; and that it is well settled that a decree against a lunatic without a guardian being appointed to represent such lunatic, is a nullity and it is not even necessary to set aside such decree and a prayer for declaration that such decree is null and void will be sufficient.

• See also: Koshalya v. Rama Devi, 2011 1 Him. LR 227;
• Lakshmi v. Ajay Kumar, 2006  AIR P&H  77
• Harjinder Singh v. Nachhattar Kaur, 1991 PLJ 565.
• Syed Hassan Baffakki Thangal v. Kalliath Thazha Chirutha, AIR 1988 Ker 160;
• Godawari Devi v. Smt. Radha Pyari Devi, AIR 1985 Pat 366;
• Samalla Krishnamurthy v. Samala Sasila, AIR 1983 AP 174;
• Asha Rani v. Amrat Lal, AIR 1977 P&H 28;
• Ram Chandra v. Man Singh, AIR 1968 SC 954,
• S. Chattanatha Karayalar v. Vaikuntarama Karayalar, AIR 1968 Mad 346;
• Nanak Chand v. Banarsi Das, AIR 1930 Lah 425.

Validity of Mental Condition – when one enters into the contract

When the validity of a contract arises for consideration, the crucial thing is whether at the relevant time the delinquent was capable of understanding it and forming a rational view as to its effects upon his interest. From Section 12, as held in Nilima Ghosh v. Harjeet Kaur, AIR 2011 Del 104, the soundness of mind of a person has to be seen at the time when he enters into a contract and it matters not if such a person is usually of unsound mind but occasionally of sound mind or, is usually of sound mind but occasionally of unsound mind.

‘Unsound mind’ in Marriage Laws

In Lakshmi v. Dr. Ajay Kumar, AIR 2006 P & H 77, it is observed that merely on proof that a person long ago at one stage of his life suffered from schizophrenia would not result into an inference that he was a person of unsound mind. Rajinder Kaur V/s. Mangal Singh, 1987 (1) PLR 444, was referred to in this decision wherein it was observed that even if a man was suffering from schizophrenia, in the absence of a positive statement made by a doctor that he was treating a person of unsound mind, it cannot be treated that such a person was lunatic. It is pointed out in this decision that in the Ram Narain Gupta’s case (AIR 1988 SC 2260) it was held that unsoundness of mind as used in Section 13(1)(iii) of the Hindu Marriage Act, 1955, require the assessment of the degree of the mental disorder and all mental abnormalities are not recognized as ground for grant of a decree of divorce, and that the Supreme Court also shared the concern of the medical word against too readily reducing a human being into a functional non-entity and as a negative unit in family or society by observing that it is the concern of law as well which has been recognized by section 13(1)(iii).

Sec. 5(ii) of the Hindu Marriage Act lays down the conditions for a Hindu Marriage. One of the same is that neither party must be incapable of giving valid consent in consequence of unsoundness of mind or has been suffering from mental disorder.

Sec. 13(1), clause (iii) and Explanations (a) and (b) read as follows:

• “S.13, Divorce:– (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party …….
•        (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder or such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
•        Explanation.- In this clause,
•        (a) the expression ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
•        (b) the expression ‘psychopathic disorder’ means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or …”      

Assessment of the degree of the ‘mental-disorder’

The Supreme Court, in Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260, held that the wife, who was suffering from Schizophrenia, could not be held to be lunatic. It was observed that the petitioner was reasonably expected to live with the respondent.  after quoting Sec. 13 Hindu Marriage Act, it is held in Ram Narain Gupta v. Smt. Rameshwari Gupta, AIR 1988 SC 2260, as under:

• “10. The context in which the ideas of unsoundness of ‘mind’ and ‘mental-disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental-dis-order. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of Decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.”

The court laid down further as under:

• “25. Schizophrenia , it is true, is said to be difficult mental affliction. It is said to be insidious in its onset and has hereditary predisposing factor. It is characterised by the shallowness of emotions and is marked by a detachment from reality. In paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions.
• 26. Schizophrenia is described thus : A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterised by prominent delusion; and catatonic, with marked motor disturbances (see catatonia). Schizophrenia commonly – but not inevitably – runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness.
• 27. But the point to note and emphasise is that the personality disintegration that characterises this illness may be of varying degrees. Not all schizophrenics are characterised by the same intensity of the disease. F.C. Redlich and Daniel X. Freedman in “The Theory and Practice of Psychiatry” (1966 edn.) say : Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient, others may not interfere too seriously with many aspects of everyday living….. (p. 252) Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both ? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to non-deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity…..” (Quoted in Lakshmi v. Dr. Ajay Kumar, AIR 2006 P & H 77).

In Lissy v. Jaison, ILR 2000-2 Ker 37, it is observed as under:     

• “Term ‘unsound mind‘ is more comprehensive. Idiocy and lunacy are species of unsoundness of mind. Mental defectiveness falls chiefly under three grades known as idiocy, imbecility and feeble mindedness. Any state of mind which falls short of lunacy or idiocy cannot be a ground for annulment of marriage. Persons differ from one another in the degree of intelligence possessed by them; it would be a dire calamity if it could be said as a matter of law that a marriage entered into by a person who is neither a lunatic nor an idiot in a serious stage, because he or she lacks intelligence, although otherwise capable of understanding the nature of the bonds of matrimony into which he or she is entering or has entered. ‘Unsound mind’ or insane memories, which all persons must understand to be a depravity of reason, or want of it. (Per Hardwicke in C. Barnsley’s case: 2 Eq. Co. Ab 580).
• ‘There is an important difference between, ‘unsoundness of mind’ and ‘dullness of intellect’. Unsoundness of mind may arise from perversion of the mental power and may exhibit itself by means of delusion or strong antipathies, which is called ‘Mania’, or it may arise from what may termed a defect of mind, as where the mind was originally incapable of directing itself to anything requiring judgment, which is ‘idiocy’ or where a mind, originally strong, has become weakened by illness or age though producing no such insanity as to amount to mania. ‘Idiocy’ in general is very easily proved. It is manifested in a variety of ways by impropriety or indecency of conduct, dirtiness in the habits or by vacancy of aspect, though this last test can only be appreciated by those who have seen the party. Another testis by means of numbers, ie., by showing that the party cannot understand the commonest rules of arithmetic.’ (Per Wood V.C. in Harrod v. Harrow, 23 LTOS 243).”
•        9. … In order to appreciate meaning of the expression ‘incurably of unsound mind‘ and the test applicable in any such case, it has to be noticed that the state of mind envisaged is a degree of unsoundness, or incapacity of mind properly called insanity. The question is to be determined not upon wiredrawn speculations but upon tangible and established facts. It is important to notice that to bring a case within the ambit of clause (iii) of sub-s.(1) of S.13, mental disorder should be of such a kind and to such an extent that the applicant cannot reasonably be expected to live with the respondent.”

Medical evidence

In Kanhaiyalal v. Harsing Laxman Wanjari, AIR 1944 Nag 232, it was held as under:

• “For the purposes of Section 12, Contract Act, the test of unsoundness of mind is whether the person is incapable of understanding the business concerned and its implications, and mere weakness of mind is not sufficient. In the absence of any medical evidence, it seems to me doubtful whether it can be held that Mahipati was by reason of unsoundness of mind incapable of entering into a contract on 27th July 1937.”

Court to form its own judgment; Medical testimony, only assistance and guidance

It is further held in Lissy v. Jaison, ILR 2000-2 Ker 37, as under:

• “The gravity and importance of the issue requires that the Court ought to form its own independent judgment on the point. Medical testimony can be of considerably assistance and even guidance but the question is one for the Court and not for the experts and evidence of experts does not relieve the Court from the obligation of satisfying itself on the point beyond reasonable doubt. There should be strict enquiry into the matter. Court’s duty in this regard is very sensitive. The institution of marriage is of vital importance to society.”

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End Notes

Appreciation of Evidence

Hospital Certificate and Circumstance (land sold at low price)

In Chacko v. Mahadevan, AIR 2007 SC 2967, the incumbent was found to be a person of unsound mind on the basis of a certificate of Mental Hospital, Trichur where he had been under treatment. There the land involved was sold for a very lower price by him. The Court took note of this circumstance, applied the maxim ‘res ipsa loquitur’ (the matter speaks for itself) and observed that this sale at a lower price itself showed that no person of sound mind and in his senses would have acted in such a manner.

Absence of continuous medical records

In a departmental action of dismissal of a constable, it is held in M. Dhanachandra Singh Vs. Union of India, 2020-2 Gau LT(MN) 65, the High Court at Manipur hesitated to act upon a medical certificate observing as under:

• “Further, nothing has been produced to show that he was treated as inpatient in the said hospital. The absence of continuous medical records for the aforesaid period except for the certificate issued by the Doctor does not inspire confidence of the Court to accept the plea of the petitioner that he was indeed suffering from mental disorder during the aforesaid period.”

Declaration of unsound mind – requires a higher standard of proof

In Lalta Prasad (Deceased) v. Bhagwan Deen, 2020-1 All LJ 82, the High Court held that the issue regarding the declaration of a person as of unsound mind is a serious issue which required a higher standard of proof. The court evaluated the certificate issued by a doctor (a lecturer in Psychology in a Medical University) wherein it had been certified that the delinquent was suffering from Moderate Grade of Mental Retardation (Idiot) and that he could neither give nor recognise coins and upon the performance of tests of his mental age and intelligence quotient (IQ) was in the range of 42-45. It had been certified that he was incapable of managing his property. It had also been certified that the mental retardation could not have been cured by medicines. In cross-examination he indicated the following:

• (i) That in order to ascertain the mental condition of the patient, an X-ray was taken. However, he could not recall whether he had advised to get an X-ray done or not.
• (ii) He further stated that when delinquent was brought before him no other medical record was brought. He could not remember when he examined the delinquent and at that time how many other patients were available.
• (iii) He tried to differentirate between a person being insane and being an idiot. He stated that he had given the certificate to the effect that the delinquent was an idiot and not insane.
• (iv) He further submitted that there was a proforma for giving a certificate. However, the certificate issued was not on its usual proforma.
• (v) He admitted that along with his certificate there were other prescriptions and tests which were conducted which were part of it. However, those documents upon and upon the basis of which he came to the conclusion that the delinquent was an idiot have not been filed on the record by the plaintiff-respondents.
• (vi) He further stated that if he is given time he can bring the documents by which he had conducted the tests and had come to his conclusion. Though he was granted time but later he refused that he did not have those documents and, therefore, he could not bring the same on record.
• (vii) He further stated that he himself had given advise to the brother of the delinquent that since the delinquent was an idiot, his property should be protected and keeping the same in mind he had incorporated this advise in the certificate.
• (viii) He also clarified that in view of the tests so conducted, it was apparent that the delinquent was not able to count the coins nor he could recognise the coins and, therefore, this prompted the doctor to incorporate in his statement that he had the mental capacity of a 7 years old boy.
• (ix) In his cross-examination, he admitted that the delinquent was also examined by a clinical Psychologist and he had also given his report, but he further noted that the report of the Psychologist was also not available on the record nor the certificate nor the details or the conclusions given by Psychologist were either filed nor such details were noted in the certificate issued.

Thereafter the High Court observed the following:

• If the delinquent was a person of unsound mind by birth and that his brother had been taking care of him right from his younger age then something which strike at the face of it is that there is not a single medical prescription relating to him which indicates that he has been suffering from any mental ailment or that he had suffered from mental retardation from his childhood.
• There is no explanation as to, while he was growing up and if he was not responding as a normal child then whether any medical advice was sought or he was treated and that during his childhood who was the doctor who had advised the sibling that his brother was mentally retarded.
• There has been no evidence on record to the effect that he had been treated for any ancillary complication which required treatment.
• The certificate is the sole document which has been brought on record and it will be relevant to point out that this certificate has been obtained from the said doctor after the institution of the suit.
• Thus before instituting the suit, there was no material available which could be brought on record to indicate the illness or the ailment.
• At the time of the institution of the suit, no material was brought on record to indicate that he was of unsound mind but the suit has been instituted casually without first seeking the permission of the Court to institute the suit, through the next friend.
• The doctor could not explain why he had advised and incorporated in the certificate that it was being issued only for the purposes of protection of the property of the delinquent, that too after the institution of the suit.
• Though there is a mention in the plaint that during the consolidation proceedings, he was declared as a person of unsound mind. There is no evidence on record.
• Once the delinquent was present in the Court and the defendants deliberately sought an adjournment and the case was adjourned; the Court had made these observations which also corroborates the fact that the delinquent was not a person of sound mind as he was not able to answer or rather did not answer any question posed by the Court.
• The fact remains that despite the same, no effort was made by either of the parties to produce the delinquent in Court on the subsequent dates.
• Merely because the delinquent did not answer any question in Court does not reflect his mental condition to be determinative of the fact that the person was of unsound mind.
• There can be various textures and shades of mental ailments but all of them are not to that extent which can hold a person to be of unsound mind so as to make him absolutely incapable of taking care of his own property and person.
• If the sibling would have been taking care of the delinquent from his childhood as a person of an unsound mind, then from time to time there would have been prescriptions by doctors specialising in mental ailment.
• Though it may be true that his mental retardation could not be cured by medicines, but the fact remains that medication is given to persons of such mental retardation in order to keep them calm and in control so that a person does not become aggressive and offensive towards others. There is no evidence to the effect that any such medication was given.
• However, it is an admitted fact that the delinquent was not aggressive and not offensive to others.
• It has also not been explained that if the delinquent was of that category who could not recognise the coins/currency nor could he be able to understand his good or bad then how did he explain that the defendants had abducted him and kept him in isolation and took his thumb impressions on stamp paper and plain paper to get the sale-deed executed.
• The statement given in the plaint that the defendants misguided the delinquent on the pretext that they wanted to get his name incorporated in the property records and it is with the aforesaid allurement that they had abducted him also appears to be false. Since the name of the delinquent was already incorporated in the khatauni this allurement for such a person is absolutely farcical.
• It would have been another things to say that a person whose mental age/capacity is that of 6-7 years and the defendants had tried to allure him with certain materialistic allurements such sweets, food, toys, clothes etc., perhaps it could have appealed more, but to specifically state in the plaint that the purpose of allurement was to get the name of the delinquent recorded in the property , for a person whose mental capacity is of 7 years and that such a person could not recognise the currency nor could count coins gives and makes a statement that he was abducted on the aforesaid pretext and that his thumb impressions were taken on stamp paper and plaint paper becomes difficult to believe.
• Moreover, the plaintiffs had also stated that they had reported the abduction of the delinquent to the police and that it was also published in certain sections of the press also becomes doubtful. Since the copies of the newspaper reports which have been brought on record reports that one youth has been missing from last 15 days and it is apprehended that he has been abducted and might have been murdered. It further reports that the elder brother had reported the matter to the police wherein it was indicated that his ‘mental condition is not alright’. This terminology used apparently does not suggest that the delinquent was a person of unsound mind.
• Even in the application which is the first reaction of the brother of the delinquent, it only indicates that the report has been made that the land of the delinquent is sought to be taken by the defendants but in the entire report made to the police there is not a whisper of the fact that the delinquent is a person of unsound mind and that his land is being sought to be usurped by the persons named.
• On record, there is a Khasara which is also in the name of the delinquent. However, there is no mention of the fact that he is a person of unsound mind.
• The record indicates that except for that one particular Khatauni which makes a mention that there is some orders of the consolidation officer by which the name of Vasudev was scored of and the name of the delinquent and his brother was incorporated and it was further mentioned that the delinquent is under the guardianship of his brother and he is a person of unsound mind, is the one solitary document.
• There are other documents indicating the revenue entries in his name. In none of those revenue entries, there is any whisper regarding his mental incapacity. Similarly Khatauni is also in the name of the delinquent and in all the Khatauni entry, the name of the delinquent have been shown but it has not been mentioned that he is a person of unsound mind.
• It is in this backdrop, if it is seen that one Khatauni wherein there is a mention of the fact that the delinquent is a person of unsound mind, then in all the subsequent Khataunies, the aforesaid endorsement in the entry should have been incorporated. This continuity which ought to have been present and natural, is missing. It is not corroborated by similar entry in the subsequent years.
• However, in order to buttress the same, the plaintiff could not bring on record the order itself by which it was stated that the delinquent was declared as a person of unsound mind.
• If the plaintiff got himself declared as the guardian of the delinquent in the consolidation proceedings, then that order at best could have been ordered declaring guardian ad litum. There is no other document which could indicate that one was ever declared as the next friend of the delinquent by a competent court as provided under the Indian Lunacy Act.
• Since the delinquent had inherited the rights of his father in his personal capacity having a separate and identifiable share, and under the revenue laws his brother otherwise is not the natural guardian but the fact remains that in order to deal with the property of a person of unsound mind the brother ought to have sought his declaration in terms of the Indian Lunacy Act as it was prevalent at the relevant time when the litigation started in the year 1989 for which the district court has been granted power to make an acquisition in respect of a person alleged to be a lunatic for which Chapter-V and more particularly Sections 62, 63 and 65 of the Indian Lunacy Act are relevant.
• From the record, it would indicate that the trial court while entertaining the plaint in the first instance did not look into the fact that the suit which was being instituted though next friend. There was no evidence worth its name at the time when the plaint was instituted to substantiate that the delinquent was a person of unsound mind.
• The submission of the learned counsel for the respondent that since it examined the witnesses including the medical expert, this itself discharges the burden of the plaintiff and the entire onus rested with the respondent does not impress the court for the reason that where both parties had led evidence the burden of proof pales into insignificance. In the present case, this issue regarding burden of proof was not in controversy before either the trial court or the first appellate court. Both the courts had made independent assessment of the evidence and have come to different conclusion.
• As already indicated above, the evidence led by the plaintiff who was primarily responsible to actually prove that the delinquent was a person of unsound mind has not been able to discharge its burden by bringing on record cogent evidence to establish the fact.
• As already discussed above the report of the medical expert is mired with certain inherent lacuna which does not inspire confidence.
• The report of the doctor certified the delinquent to be an idiot. In the plaint, the plaintiff had used different word (vernacular) and have also used the word insane. All these terminologies indicate different facets has an altogether different connotation.

Appreciation of Medical Evidence (in a case where Medical Record was discarded)

In Thithumma v. Rukhiya Umma, 2012-2 Ker LT(SN) 111, the Kerala High Court refrained from acting upon the O.P. register marked as Ext.X1 citing, inter alia, the following:

• PW4, the doctor said that the entries in Ext.X1 were usually made by members of staff and he had no personal knowledge.
• He was unable to identify the handwriting.
• He did not know the doctor, who treated or admitted the patient .
• The patient was seen admitted on 29.5.1980 at 5 p.m and discharged on the next day.
• No document was available in the hospital except Ext.X1.
• The case sheet, the most important document, was not available in the hospital.
• PW4 had never seen the case sheet.
• Though the signature or thumb impression of the patient could have been affixed in the record, it does not find a place.
• Though the case history and date of discharge are recorded in report book, it was not produced.
• In Ext.X1, the name of the delinquent alone was shown without his age or address.
• PW4 had not seen the doctor nor did he make any personal enquiry.
• He had not seen delinquent while he was allegedly in the hospital.
• At the most, what can be inferred from Ext.X1 was that one Abdutty whose details are not known was admitted in Mental Hospital, Trichur on 29.5.1980 and discharged on 30.5.1980.
• Ext.X1 was not at all sufficient to prove that delinquent was treated for unsoundness of mind at that time or that he was non compos mentis on the date on which Ext.B1 gift deed was executed.

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