85 8
A MAHAMMADUNNl'S SON KAPPATTA KATHOKANDATH
B
c
D
BAVA
, v.
KUNHOOSA'S SON AMPALATH VEETTIL KUNNATHODATH
MAHAMMADUNNI & ORS.
December 1, 1975
[A. N. RAY, C.J., M. FL BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.J
Partition suit-Proof of marriage-Insanity-Lucid interval-A person ad·
judged insane whether continues to be so till proved to the contrary.
The plaintiff who is son of defendant No. 3's mother's brother filed a suit for • partition of properties which belonged to the mother and father of defendant
No. 3. Defendant Nos. 1 and 2 are the sons of brothers of defendant No. 3's
mether. Defendant No. 4 is the son of defendant No. 3's father's brother.
Defendant No. 3 died duri'ng the pendency of the suit. Thereafter, defendant
No. 1 filed his additional written statement and claimed' half share in the property of defendant No. 3 on the ground that defendant No. 3 married defendant
No. 1 after the suit was instituted.
The Trial Court allotted different shares to various defendants in the properties left by defendants No. 3 's mother and father which are nd longer in
dispute. The U"ial Court found that defendant No. 4 alone was entitled to the
share of defendant No. 3 on the ground that the marriage of defendant No. 3
with defendant No. 1 was not proved. The trial Court also found that defenJdant No. 3 was mentally unsound to enter into any marriage. f'
E
F
On appeal, the High Court held that defendant No. 1 was married to
defendant No. 3 ancl defendant No. 3 was in a lucid interval at the time of
marriage.
On an appeal by certificate to this Court, the counsel for the appellant
contended : (I) that the finding of the High Court both with regard to the
fact of marriage and that the marriage took place during a !Ucid interval were erroneous; (2) that defendant No. 3 was not a sane person as is clear first from an order declaring defendant No. 3 to be a person of unsound mind, whereby
defendant No, 4 was appointed guardian of the property of defendant No. 3
and defendant No. 1 was appointed guardian 9f the person of defendant No. 3.
Secondly the application of defendant No. 3 to be declared herself as a person
of sound mind was rejected by the District Judge. Thirdly, in the present
suit defendant No. 3 was impleaded as a person of unsound mind; and (3)
that once a person is adjudged insane it is presumed that state of unsoundness
would continue until proved to the contrary.
Dismissing the appeal,
HELD : ( 1) The documents relied op by the appellant do not rule out
G lucid interval at the time of marriage. The High Court relied on the evidence
of D.W. 4, a teacher, who attended the marriage. He deposed that defendant
No. 3 gave her consent to the marriage and was in her lucid interval at that
time. The High Court rightly found that defendant No. 3 gave her consent
to the marriage and was in her lucid interval. The conclusion of the Higlot
Court on both the questions, is based on evidence and is correct. [860E-H]
u
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1268 of
1970.
From the Judgment and order dated 17th July 1969 of the Kerala
High Court in A.S. No. 217 of 1964.
jr1
MAHAMMADUNNI V. KUNHOOSA (Ray, C.J.) 859
T. S. Krishnanworthy Iyer, N. Sudhakaran and P. K. Pillai for the A
Appellant.
A. S. Narnbiyar for Respondent No. 2.
(Appeal set down ex-parte against respondents 1 and 5-21 Respondent 4 expired : Name of respondent 3 deleted).
The Judgment of the Court was delivered by
RAY, C.J. This is an appeal by certificate from the judgment dated
17 July 1969 of the High Court of Kerala.
B
The question in this appeal is whether defendants No. 1 and 4 are
each entitled to share in the property allotted to defendant No. 3 in a
partition decree. Defendant No. 4 is the appellant. C
This appeal arises out of a suit instituted on 19 November, 1957
for partition of properties. Properties mentioned in Schedule A and
B to the plaint belonged to the mother of defendant No. 3. Properties
mentioned in Schedule C to the plaint were joint properties of the father
and the mother of defendant No. 3.
The plaintiff and defendant No. 2 are the sons of one of the
brothers of the mother of defendant No. 3. Defendant No. 1 is the son
of another brother of the mother of defendant No. 3. Defendant No. 4
is the son of defendant No. 3's father's brother.
Defendant No. 3 died during the pendency of the suit. Thereafter
defendant No. 1 filed his additional written statement and claimed half
share in the property of defendant No. 3 on the ground that defendant
No. 1 had married defendant No. 3 -0n 30 August, 1959.
The Trial Court allotted to defendant No. 3 3/6th share in properties mentioned in Schedules A and B to the plaint. The plaintiff and
Defendant No. 1 and defendant No. 2 were each given 1/6th share in
properties in Schedules A and B to the plaint. With regard to Schedule
C properties the plaintiff and defendant No. 1 and defendant No. 2
were each given 9 /96th share and defendant No. 3 was given 51/96th
share and defendant No. 4 was given 18/96th share.
The Trial Court found that defendant No. 4 was alone entitled to
the share of defendant No. 3 on the ground that marriage of defendant
No. 3 with defendant No. 1 was not proved. The Trial Court also
found that defendant No. 3 was mentally unsound to enter into any
marriage.
Defendant No. 1 preferred an appeal. The High Court set aside
the judgment of the Trial Court and held that defendant No. 1 was
married to defendant No. 3 and defendant No. 3 was in a lucid interval
at the time of marriage. ,
Counsel for the appellant defendant No. 4 impeached the finding of
the High Court both with regard to the fact of marriage and the finding
that defendant No. 3 was married in a lucid interval.
D
E
F
G
H
A
B
860 SUPREME COURT REPORTS [1976] 2 S.C.R.
Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into
marriage with defendant No. 1. The first document iS Exhibit B-34
which is an order dated 8 November, 1958 declaring defendant No. 3
to be a person of unsound mind. In that order defendant No. 4 was
appointed guardian of the property of defendant No. 3 and defendant
No. 1 was appointed guardian of the person of defendant No. 3. The
second document is Exhibit B-8 dated 7 September 1959. The appellant submitted that on 7 September 1959 defendant No. 3 wanted to
get herself declared as a person of sound mind. By an order dated
5 February 1960 being Exhibit B-31 the District Judge dismissed the
application of defendant No. 3. The third document on which the
appellant relied is the suit in this appeal where defendant No. 3 on 19
~ovember, 1957 was impleaded as a person of unsound mind.
The appellant contended that though Exhibit B-34. namely, order
dated 8 November 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment interparties and it would, therefore, be admissible under sections 11 and
13 of the Evidence Act. The appellant also contended relying on the
decision in Amanchi Seshamma v. Amanchi Padmanabha Rao(1)
D that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.
E
F
Counsel for the appellant therefore contended that the conclusion of
the High Court that defendant No. 3 was in a lucid interval at the time
of marriage was against the overwhelming documentary evidence.
The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August 1959. The High Court
relied on the evidence of D.W. 4 who attended the marriage. D.W. 4
was a teacher. His evidence was that defendant No. 3 at the time of
marriage talked with Musaliar. His further evidence was that Musaliar
called defendant No. 3 and she went near him and told him that he was
being authorised by her to give her in marriage to defendant No. 1.
The High Court rightly found that defendant No. 3 gave her consent
to the marriage and was in her lucid interval.
The High Court reversed the finding of the Trial Court and held
that the marriage took -place. The High Court relied on the oral
evidence and found that marriage in fact was held. The conclusion of
the High Court on both the questions is correct. The appeal is therefore dismissed. No order as to costs.
P.H.P. Appeal dismissed.
(I) I.LR. 40 Mad. 660.
ir
