THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO APPEAL SUIT No.1571 of 1994
Date : 28-04-2014
Between :
1. Kancherla Rama Seshagiri Rao and another. …. Appellants.
And
1. Kancharla Venkata Nageswara Rao and others. …. Respondents.
Counsel for the Appellants : Smt.S.A.V. Ratnam.
Counsel for respondent No.2 : Sri S.AShok Anand Kumar Counsel for respondent No.3 : Sri R.Guru Prasad This Court delivered the following:
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
APPEAL SUIT No.1571 of 1994
JUDGMENT:
This appeal is filed challenging the judgment and decree dt.09-06-1994 in O.S.No.85 of 1984 of the Subordinate Judge, Gudivada.
2. The appellant is 1st defendant in the suit. Pending appeal,
1 st respondent/plaintiff died and his second wife is impleaded as
2 nd respondent in the appeal. The daughter of 1st respondent through his first wife Dhana Lakshmi is also impleaded as the legal representative of deceased 1st respondent/3rd respondent.
3. Originally, the appellant was represented in the trial Court by Kancherla Radhika, his wife. After filing of the appeal, she died and therefore, he is now represented by his daughter Bharathi.
4. The 1st defendant is son of plaintiff and 2nd defendant is mother of plaintiff. The 2nd defendant died pending suit.
5. In 1946, the plaintiff married one Dhanalakshmi and 1st defendant was born to them on 21-09-1959. Unfortunately, he was congenitally deaf and dumb. However, it appears that 1st defendant was provided expert treatment under Dr.Tirumala Rao of Gandhi Hospital, Hyderabad which improved his physical and mental condition, but he did not get speech or hearing and continued to be deaf and dumb. The 1st defendant was also got admitted by plaintiff in 1965 in a school for deaf and dumb at Malakpet where he continued his education and passed 7th class. Subsequently, he was also got admitted in two year Electrical Training course at Hyderabad and completed 1st year.
6. There was a partition between plaintiff and 1st defendant under a registered partition deed dt.30-10-1971. Under it the 1st defendant was given the plaint schedule house, a site and some wet land admeasuring Ac.5.25 cts. Since 1st defendant was then a minor, the 2nd defendant, his paternal grand mother, was acting on his behalf.
7. The plaintiff filed O.S.No.85 of 1984 before the Subordinate Judge, Gudivada for specific performance of an agreement of sale Ex.A-6 dt.12-05-1979 executed in his favour by the defendants and for costs.
8. The plaintiff alleged that on his becoming major, 1st defendant was managing the above property with the assistance of 2nd defendant; that 1st defendant started a poultry farm to take advantage of the special facilities provided for disabled persons by the Government; that 1st defendant applied for a loan in Andhra Bank for the said poultry farm business for which plaintiff stood as surety; in addition, 1st defendant had utilized plaintiff’s money to the tune of Rs.20,000/-; that the said business ended in a total loss; and since 1st defendant had no means to repay the same, the 1st defendant and 2nd defendant offered to sell the plaint schedule property to him in discharge of the said debt of Rs.20,000/- and executed an agreement of sale Ex.A-6 dt.12-05-1979; that possession of property was delivered to plaintiff and although plaintiff was ready and willing to perform his part of contract, the 1st defendant did not do so.
9. Written statement was filed by 1st defendant denying the execution of suit agreement of sale. He contended that he had no necessity to sell his house to plaintiff and denied the allegation that he utilized the amount of Rs.20,000/- belonging to plaintiff for the purpose of poultry business. He alleged that it was the plaintiff who started the business in the name of 1st defendant and appropriated the income from the said business; that plaintiff obtained the signatures of 1st defendant on various papers such as white, printed and stamp papers and the plaintiff created the suit agreement of sale on these papers; and the plaintiff is also jointly liable for the losses of the said poultry firm business. It is also alleged that plaintiff abandoned the 1st defendant, his younger sister Durga Nageswari (R-3) and his mother Dhanalakshmi and lead adulterous life with 2nd respondent and that he drove away Dhanalakshmi, who then started residing at Hyderabad with the children to eke-
out out her livelihood facing severe troubles. It is also alleged that since 1st defendant is deaf and dumb, the plaintiff had no right to purchase the property of 1st defendant under the agreement of sale without obtaining permission from the District Court. It is also pleaded that plaintiff had no capacity to invest a sum of Rs.20,000/- in the poultry business set up by 1st defendant.
10. The 2nd defendant, who is mother of plaintiff, supported the 1st defendant and stated that under the partition deed dt.30-10-1971, 1st defendant got the suit schedule property i.e building and site measuring about Ac.0.10 cents and Ac.5.25 cents wet land while the plaintiff got the remaining Ac.3.42 cents of wet land and a tiled roof house situated in Ac.0.05 cents of vacant land on the west side of the plaint schedule property. Several other allegations were made by her against plaintiff and his way of life with which we are not presently concerned. It is further stated that only with an intention to grab the properties of 1st defendant, the plaintiff fabricated the suit agreement and filed the suit.
11. Later, she also filed an additional written statement admitting that 1st defendant can read and write and has got the intellect to understand things.
12. Rejoinder was filed by plaintiff denying these allegations. He reiterated his love and affection for 1st defendant and asserted that 1st defendant is trying to take advantage of the fact that he is deaf and dumb to escape from the obligations incurred by him under the suit agreement of sale.
13. The trial Court framed the following issues:
“1. Whether the plaintiff is entitled for the specific performance of agreement of sale?
2. To what relief?”
14. Before the trial Court, the plaintiff examined P.Ws.1 to 4 and marked Exs.A-1 to A-31. The defendants examined D.Ws.1 to 4 and marked Ex.B-1.
15. By judgment and decree dt.09-06-1994, the trial Court decreed the suit. It held that in the additional written statement of 2nd defendant, she had admitted that 1st defendant can read and write and has got the intellect to understand things; that D.W.1, the wife of 1st defendant, admitted that 1st defendant was employed to do despatch work in the Income Tax Office; no evidence was adduced by defendants to prove that 1st defendant was not in a position to understand things; and that the execution of the suit agreement of sale Ex.A-6 by 1st defendant is established through the evidence of P.W.1 and P.W.2. It held that merely because a party is deaf and dumb, it cannot be presumed that his mental faculty is impaired and he is mentally disabled. It therefore granted the relief of specific performance.
16. Challenging the same, this appeal is filed.
17. Heard Smt.S.A.V.Ratnam, learned counsel for appellant and Sri S.Ashok Anand Kumar, learned counsel for 2nd respondent. Although one Sri T.Guru Prasad, counsel filed vakalat for 3rd respondent, he did not make any submissions.
18. The learned counsel for appellant strenuously contended that the evidence on record was not properly appreciated by the trial Court; that the oral and documentary evidence adduced by the parties shows that 1st defendant was incapable of understanding the true nature of Ex.A-6 agreement of sale and taking advantage of his deafness and dumbness, Ex.A-6 was procured by plaintiff. She further contended that the deafness and dumbness of 1st defendant should be construed as evidence of mental incapacity of 1st defendant to execute Ex.A-6 and the judgment of the trial Court is liable to be set aside. Alternatively, she also contended that even if the agreement of sale was held to be true and valid, on the death of plaintiff/1st respondent, the appellant/3rd respondent and 2nd respondent are each entitled to 1/3rd share in the property of 1st respondent and the relief of specific performance be confined only to the 2/3rd share of 2nd respondent and 3rd respondent and rejected in respect of 1/3rd share of 1st defendant.
19. The learned counsel for 2nd respondent, on the other hand, contended that the judgment and decree of the trial Court does not suffer from any infirmity; that the trial Court had properly considered the evidence on record and decreed the suit for specific performance. He also placed reliance on the judgment of this Court in K.Sivaram Vs.
[1]
K.Mangalamba . He further contended that there was a Will executed on 14-03-2004 by 1st respondent/plaintiff bequeathing the property, which is subject matter of the appeal, in favour of 2nd respondent herein; and in this view of the matter, it cannot be said that the appellant would be entitled to 1/3rd in the property which is subject matter of this appeal.
20. I have noted the submissions of both sides.
21. The points which arise for consideration are :
(a) Whether the execution of Ex.A-6 by 1st defendant is proved?
(b) Whether the 1st defendant could be said to be a person of unsound mind since he could not speak and hear?
(c) To what relief?
Point (a) :
22. Both the parties have taken me through both oral and documentary evidence on record. In the written statements filed, there is no specific plea that the signature on Ex.A-6 does not belong to 1st defendant. On the contrary, the plea is that the signature of 1st defendant was obtained on certain blank and stamp papers and on those papers Ex.A-6 was fabricated. Therefore, it has to be held that the signature of 1st defendant on Ex.A-6 agreement of sale is not disputed. The plaintiff has also examined himself as P.W.1 and attestors of Ex.A-6 as P.Ws.2 and 3. Nothing is elicited from these witnesses to show that 1st defendant has not signed on Ex.A-6. Therefore, the execution of Ex.A-6 by 1st defendant is proved.
Point (b):
23. This is the main defence of the 1st defendant. His contention is that since he was born deaf and dumb, he has to be treated as a person of unsound mind or mental incapacity; and without obtaining permission of the Court, the execution of Ex.A-6 could not have been done. This point has been considered by this Court in K.Sivaram (1 supra). This Court held:
“It is true that the speech is the media for conveying the ideas generated by mental faculty but even without speech the communication can be effectively made by writing or signs or gestures. Equally the faculty of thinking and intelligence reacts through medium of hearing but the sounds, signs and gestures are an effective substitute. Therefore, mental capacity is not strained or impaired due to deficiency in hearing or speech. The want of speech or hearing should not be considered as or equated to mental chaos or disorder. In view of the difficulty in communication with deaf-mute person the Lahore High Court arrived at the conclusion that there is mental infirmity and this is followed by Ramaswami, J. of the Madras High Court. The equating of deaf-mute to mental infirmity or capacity is not founded upon scientific or medical data and on research it is found that the deaf- mute are generally more mentally alert. I am unable to agree with the views pounded by the Madras High Court and Lahore High Court.”
Thus this Court held that mental capacity cannot be held to have been impaired only on account of deficiency in hearing or speech and want of speech or hearing should not be considered as or equated to mental chaos or disorder; and such a conclusion is not founded upon scientific or medical data and on research it has been found that the deaf persons are more mentally alert. The learned counsel for the appellant has not placed before me any other citation taking a different view.
24. In the present case, admittedly, the 2nd defendant, who is grandmother of 1st defendant and also mother of plaintiff, has filed an additional written statement stating that 1st defendant can read and write and has got intellect to understand things. That part, D.W.1, the wife of 1st defendant, has also admitted that 1st defendant was employed to do despatch work in the Income Tax office. If 1st defendant was suffering from any mental incapacity, he could not have been employed in Income Tax Department. Therefore, I am of the opinion that there is no substance in this plea of 1st defendant and he has to be held to have mental capacity to execute Ex.A-6. Therefore this point is answered against the appellant and in favour of 2nd respondent.
Point (c):
25. According to the learned counsel for appellant, since 1st respondent/plaintiff had died pending appeal on 05-04- 2004, under the provisions of the Hindu Succession Act, 1956, the 1st defendant being son, 2nd defendant being wife, and 3rd respondent being daughter of 1st respondent, are each entitled to 1/3rd share and so specific performance should be restricted to 2/3rd share only of respondent Nos.2 and 3.
26. Opposing this contention, the learned counsel for 2nd respondent states that there is a Will dt.14-03-2004 allegedly executed by 1st respondent in favour of 2nd respondent in respect of the property which is subject matter of this appeal and also other properties, and so, the appellant would not get 1/3rd share.
27. It is pertinent to note that A.S.M.P.No.11537 of 2004 was filed by 2nd respondent to come on record as legal representative of the deceased 1st respondent. In that application, there is no mention of the said Will dt.14-03- 2004. Copy of the said Will has also not been filed by 1st respondent in this appeal. In fact, the learned counsel for appellant contends that the said Will relates to a different property and that the property which is subject matter of this appeal is not the subject matter of that Will.
28. While ordering A.S.M.P.No.2622 of 2012 on 19.2.2014 (filed by 3rd respondent to implead herself as a legal representative of deceased 1s respondent/plaintiff on basis that she is the daughter of deceased 1st respondent) this Court had observed that for the purpose of ensuring that the estate of deceased 1st respondent is properly represented in the appeal, the said ASMP is being ordered and any inter se claims between 3rd respondent and 2nd respondent can be got adjudicated in separately constituted substantial proceedings/suits between them.
29. Since the said Will has not been placed on record by 1st respondent, this Court cannot go into the question whether such a Will exists and if so, whether the property which is subject matter of the appeal is the subject matter of the said Will.
30. Since the suit is filed for specific performance by 1st respondent of the agreement Ex.A-6 executed by appellant in his favour, and since the defense pleaded by appellant/1st defendant is found to be not tenable, I hold that the appellant was bound to execute a registered sale deed in favour of the legal representatives of deceased 1st respondent i.e. respondent Nos.2 and 3.
31. However, the issue “whether on the death of 1st respondent, the appellant would be entitled to 1/3rd share in the properties of 1st respondent”, cannot be decided in this appeal and it is open to the appellant to file a separate suit for partition and claim 1/3rd share therein.
32. With the above observations, this appeal is dismissed but in the circumstances, without costs.
33. Miscellaneous applications if any, pending in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date: 28-04-2014 vsv
[1] 1985(2) A.P.L.J. 189