The burden of proof lies with the party challenging the validity of a transaction, and being deaf and dumb does not necessarily imply lacking mental faculty.

Tarlok Singh Chauhan, J.

1. The plaintiff/appellant (herein after referred to as plaintiff), has preferred the instant Regular Second Appeal under Section 100 of the Code of Civil Procedure against the concurrent findings recorded by the Courts below, whereby her suit for declaration with consequential relief of permanent prohibitory injunction and in the alternative for possession came to be dismissed.

2. The predecessor-in-interest of the plaintiff filed a suit for declaration to the effect that the sale deed dated 27.12.1995 executed by the original plaintiff Smt.Shardho in favour of defendant was illegal, null and void and in the alternative a decree for possession was prayed for.

3. Briefly stated the case of the plaintiff was that the suit land as shown in para 1 of the plaint was owned and possessed by deceased plaintiff, who was her mother. It was claimed that the original plaintiff was deaf and dumb and could not understand her good and bad, as she was born mentally ill. Smt. Savitri, the present appellant claimed herself to be the next friend of the plaintiff and on coming to know on 27.12.1995 that the defendant had got a sale deed registered in his favour by obtaining thumb impression of Shardho, filed the suit for declaring the sale deed as illegal, null and void.

4. The defendants/respondents opposed the suit by filing written statement, wherein preliminary objections regarding lack of maintainability of the suit was taken. On merits, it was asserted that Smt.Sawan Dei was also born to the plaintiff Shardho from the loin of Sobhu, resident of village Kasla. Plaintiff used to reside with her husband Sobhu and daughter Sawan Devi in village Kasla. Natural guardian of Smt. Shardho, her husband and daughter were present at the time of execution of the sale deed and were looking after the interest of Smt. Shardho for all intends and purposes. Since Smt. Shardho was residing with her husband, therefore, the suit land was not beneficial to Smt. Shardho, hence she sold the same in favour of the defendant. It was averred that the suit in fact was filed with mala-fide intention to extract money from the defendant. The defendant has already paid a sum of Rs. 16,000/- and the Sub Registrar had explained the deed to the executants who understood the same and thereafter the deed was registered. Hence it was prayed that the suit be dismissed.

5. Replication denying the contents of the written statement affirming those of the plaint was filed. On 11.10.1996, the learned trial Court framed the following issues:-

“1. Whether the sale deed dated 27.12.1995 executed by the plaintiff in favour of the defendant is void, illegal, inoperative, ineffective document, as alleged? OPP

2. Whether the plaintiff is entitled for the relief of injunction? OPP

3. Whether the suit is not maintainable? OPD

4. Whether the plaintiff have no cause of action and locus standi to file the present suit? OPD

5. Whether this suit is not properly valued for the purpose of Court fee? OPD

6. Relief.”

6. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit, constraining the plaintiff to file an appeal before the first Appellate Court, which too vide judgment and decree dated 24.11.2001 came to be dismissed. Undeterred, the plaintiff has filed the instant appeal, which on 5.9.2002 came to be admitted on the following substantial question of law:-

“Whether both the Courts below have misread and mis-appreciated the oral and documentary evidence on record to come to the conclusion that the sale deed dated 27.12.1995 executed by Smt. Shardho in favour of defendant Chhittar was not illegal, null and void, for the reason that she lacked mental faculty?”

I have heard learned counsel for the parties and have also gone through the records of the case.

7. At the outset it may be noticed that there is a general misconception that a deaf and dumb person is essentially an idiot. This misconception requires to be dispelled and this fact