Medical testimony not a conclusive proof of sound mind.

N.V.BALASUBRAMANIAN,J.

This Letters Patent Appeal is directed against the judgment of the learned Judge of this Court rendered in A.S.No.403 of 1985 dated 20.08.1999 reversing the judgement and decree made in O.S.No.756 of 1973 dated 23.03.1985 on the file of the Ist Additional Subordinate Judge, Salem.

2.The first appellant—Parvathi Ammal is the second plaintiff in the suit and the first plaintiff—Munusami Naicker in the suit is her husband. The suit was instituted by the first plaintiff represented by his wife and next friend the second plaintiff, and as the first plaintiff died during the pendency of the suit, the suit was prosecuted by the second plaintiff and the suit was filed against the first plaintiff's brother Muthuswamy Naicker, who died on 6.11.1971. The suit was decreed by the learned trial Judge and on appeal before this Court, the learned Judge of this Court reversed the judgment and decree of the learned trial Judge. During the pendency of the Letters Patent Appeal, the second plaintiff, the sole appellant, also died and the second appellant was brought on record as the legal representative of the deceased appellant.

3. The suit was filed by Munusami Naicker (hereinafter referred to as the first plaintiff) for recovery of possession of the suit property, for accounting and for recovery of past and future mesne profits and costs.

4. The averments in the plaint briefly are that the first plaintiff had three brothers, by name, Muthusamy Naicker, Krishna Naicker and Narayana Naicker and all of them constituted a Hindu undivided family. They possessed extensive joint family properties and on 5.6.1951, the four brothers and one Chinna Pillai Ammal @ Nagammal partitioned the joint family properties by a deed of partition dated 5.6.1951, and in that family partition, 'A' schedule properties were allotted to the share of the first plaintiff. According to the averments in the plaint, the first plaintiff was a man of weaker intellect and of poor understanding power even at the time of partition and his next younger brother Muthusamy Naicker was very capable and a subtle person and the first plaintiff allowed his younger brother Muthusamy Naicker to manage his properties and the income from the properties allotted to the first plaintiff was considerable. Both the first plaintiff and the said Muthusamy Naicker had no children. It is stated that Muthusamy Naicker had an invalid wife, whose limbs were paralysed and therefore unable to move and the first plaintiff and the said Muthusamy Naicker lived together in the same house and Muthusamy Naicker was managing the properties of the first plaintiff, which were his separate properties and he had no issues.

5. Muthusamy Naicker sent his wife to her parents house about thirteen years prior to the institution of the suit, and married the first defendant, who belonged to a different caste and the defendants 2 to 4 are the children of Muthusamy Naicker through the first defendant. While Muthusamy Naicker was in possession of the share of the first plaintiff and was managing the properties, substantial buildings in the vacant plot near "Shanmugha Talkies" were constructed and a rice mill was also built out of the income derived from the properties of the first plaintiff. It is stated that a sum of Rs.24,000/- would be the income from the properties of the first plaintiff. Since the first plaintiff had no issues, he and his wife brought up one Loganathan, the brother's son of the second plaintiff, and the first plaintiff also desired to give his properties to the said Loganathan.

6. It is stated that out of the income from the properties of the first plaintiff, Muthusamy Naicker put up several buildings on the properties belonging to the first plaintiff Munusami Naicker. It is stated that some misunderstanding arose between Muthusamy Naicker and the second plaintiff and Muthusamy Naicker hatched a scheme to get the entire properties of the first plaintiff by taking advantage