The burden of proof shifts to the party alleging sanity to prove that the contract was made during a lucid interval if there is sufficient evidence to prove that the person is usually of unsound mind.

1. This is an appeal by defendant 2 against a preliminary foreclosure decree on a mortgage executed by one Govinda on 28th May 1920 to secure a sum of Rs. 3000 alleged to have been advanced to him by four mortgagees whose representatives are the respondents in this appeal. The appellant is the subsequent transferee of part of the mortgaged property. The mortgagor Govinda is dead. The main defence of the appellant in the lower Court was that at the time of executing the mortgage Govinda was of unsound mind and incapable of understanding the nature of the mortgage contract which was therefore void. This contention forms the basis in the lower Court of issue 3 which has been dealt with in para. 8 of the judgment in the following way :

Issue 3. -- On the point of Govinda's unsound condition of mind all that the defendant's evidence shows is that he was at times of unsound mind. Even this evidence comes from persons who had little personal knowledge about it. Jani who must be the best informed person about her husband's mental condition deposed that Govinda used to behave well and give no trouble if he were to get his meals regularly and tobacco when wanted by him. The defendant has thus failed to prove that Govinda was imbecile or was of unsound mind at the time of the execution of the mortgage-deed in suit. I find accordingly.

2. This shows that the lower Court placed the burden of proving the unsoundness of Govinda's mind on the appellant who according to the learned Judge had failed to discharge it. No doubt the onus of proving insanity is in the first place on the person who alleges it, the normal presumption being of sanity. In this connexion the learned counsel for the respondents has placed before US Mahomed Yakub v. Abdul Quddus, 1923 AIR(Pat) 187 and : Ram Sunder v. Kali Narain, 1927 AIR(Cal) 889. Both these were cases which turned on the primary burden of proving insanity which, as we have just stated, lies on the party alleging it. The Courts held that in the circumstances of those cases the party alleging the insanity had failed to prove it. Different considerations arise however where there is sufficient evidence to discharge this primary burden, for instance, such a case would be as in Seshamma v. Padmanabha Rao, 1917 AIR(Mad) 265 where the person whose mental capacity was being considered had been certified to be a lunatic under the Lunacy Acts. A similar case is that in Snook v. Watts, 1848 11 Beav 105 where it is said :

The finding of the jury upon a commission of lunacy that a party is lunatic, throws the burthen of proof on those who contend the contrary. The presumption is not then as it would otherwise be, in favour of sanity or soundness of mind, but the contrary must be proved; that is, they who allege the sanity of a person at a time subsequent to that at which he has been found lunatic under a commission, have the burthen cast on them of proving the soundness of mind of such person.

3. But the shifting of the burden of proof is not confined to cases where the lunatic has been certified. If there is sufficient evidence to prove that the person whose mental capacity is in doubt is usually of unsound mind, then the burden shifts to the person who alleges his sanity to prove that the contract was made during a lucid interval. This is recognised by S. 12 of the Contract Act. The section says :

A person is said to be of sound mind for the purpose 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 interests.

A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.

A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.

This principle also finds support in Attorney-General v. Parnther,1778 29 ER 632:

If derangement be alleged, it is clearly incumbent on the party alleging it, to prove such