IMPORTANT POINT
The judgment emphasizes the need for concrete evidence, particularly medical evidence, to prove unsoundness of mind and the burden of proof in challenging the competence of a contracting party.

JUDGMENT :

A registered sale deed of the year 1989(Ext.B9) was assailed by the legal heirs of the executant, one Mahammad, alleging that he was not competent to contract for want of sound disposing state of mind, at the time of execution of the sale deed. The suit, O.S. No.122/1996, was dismissed by the Sub Court, Kasaragod, which was confirmed by the District Court, Kasaragod by judgment dated 30.11.2005. The said judgment rendered in A.S. No.114/1998 is under challenge in this Regular Second Appeal. Plaintiffs 1 to 5, 7 and 9 – who were appellants 1 to 5, 7 and 9 in the appeal – are the appellants herein.

2. This Court admitted the second appeal on the following substantial questions of law, as formulated in the memorandum of appeal:-

“(A) Is the lower appellate court correct in law in discarding Ext.A4 medical certificate while determining the mental state and capacity of Muhammed at the time of the execution of the alleged sale deed?

(B) Has not the lower appellate court committed an error of law in ignoring the vast difference in signatures, non-measurement of the property, non-insistence on prior title deeds and lack of evidence to establish passing of consideration as unexplained suspicious circumstances surrounding the alleged sale deed?

(C) Whether on the facts and in the circumstances of the case the defendants have discharged the burden of proof cast on them to prove due execution of the sale deed by a vendor having necessary mental capacity to execute such a document?

(D) Has not the lower appellate court ignored relevant and material items of evidence, which if relied on, would have enabled it to come to a different conclusion? ”

3. Heard Sri.S.V.Balakrishna Iyer, learned Senior Counsel, instructed by Adv.P.B.Krishnan, on behalf of the appellants and Sri.Suresh Kumar Kodoth, learned counsel for the respondents. Perused the records.

4. Learned Senior Counsel for the appellants, after having referred to the facts, first pointed out that the requirement of Section 12 of the Contract Act to allege incompetence in terms of Section 11 is not to establish that the executant of the document was insane or mad at the relevant point of time, but only to show that he was not of sound mind for the purpose of contract, in the sense that he was incapable of understanding the transaction and forming a rational judgment as to its effect upon his interests. It was also pointed out that in the context of burden of proof, the liability of the plaintiffs is only to show that the executant was not of a sound mind at the time of contract by the yardstick of preponderance of probability, whereupon, the onus would shift to the defendant, either to establish that the executant was a person of sound mind, or that the document was executed during the spell of a lucid interval. Secondly, learned Senior Counsel pointed out the following glaring factual aspects, which according to the learned Senior, would cast serious suspicion over the transaction in question:

(1) Vast difference between the admitted signature of the executant with the one contained in the questioned document, Ext.B9.

(2) Failure to obtain the prior title deeds from the executant, as admitted in evidence.

(3) Non-measurement of the property before its purchase.

(4) Complete dearth of evidence as to passing of consideration, especially when the defendants plead that the entire consideration was not paid simultaneous to the execution of the document, but in advance.

5. Learned Senior Counsel would point out that, by virtue of the evidence adduced by PW2 and PW3, two neighbours, who were acquainted with the executant Mahammad, to the effect that Mahammad was not of sound mind, whose evidence remained unshattered, the plaintiffs have satisfactorily discharged their burden. Another aspect highlighted by the learned Senior Counsel is with regard to the suit, O.S.No.585/1993, instituted before the Munsiff's Court, Kasaragod seeking specific performance of Ext.B10 agreement, which was executed