# Nathu Singh & Anr v. Srimati Rajvati & Ors - **Citation:** (2016) 7 ILRA 398 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-29 - **Bench:** Harsh Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nathu-singh-anr-v-srimati-rajvati-ors-44076 - **Pages:** 11 ## Headnote Civil Law-Second Appeal - Cancellation of sale-deed - Person of unsound mind - Next friend - Order XXXII Rule 15 C.P.C. - Presumption of soundness of mind - Specific plea - Admissible evidence - Nature and extent/degree/level - Fraud - Presumption - Agreement for sale - Income tax clearance - Registration - Mental Hospital Agra - OPD patient - Anxiety - Schizophrenia - Documentary evidence - Oral evidence - Burden of proof - Surmises and conjectures - Manifest error of law - Perversity - Substantial question of law - Void or voidable. The brief facts relating to the case are that Sri Dharam Veer Singh filed Civil Suit No. 236 of 1985 in the Court of Civil Judge Moradabad on 12.4.1985 for obtaining a decree for cancellation of sale-deed dated 17.9.1984 which is alleged to have been presented for registration in the office of Sub-Registrar on 19.10.1984 and was registered on 21.12.1984.(Para 2) In the suit was filed by Sri Dharm Veer Singh, through his next friend Lakhpat Singh, claiming himself (Dharam Veer Singh) to be a person of unsound mind, the allegations of plaint in brief are that, the plaintiff has 1/3rd share in the property plot Khasra Nos. 403, 422, 423 and 444 detailed at the foot of the plaint; that at the time of execution of impugned sale-deed, the plaintiff was not a person of sound mind, was not capable of understanding the contents of sale-deed and was not even able to understand as to why and on which papers he is putting his thumb impressions; that the impugned sale-deed was obtained in hurried and unnatural manner and was not read over or explained to the plaintiff; that the plaintiff did not receive any sale consideration and execution of saledeed for a sum of Rs. 50,000/- is without consideration; that the land in question was worth Rs. 1,50,000/- at the time of execution of alleged saledeed; that no permission to sell was obtained from the District Judge; that the plaintiff had no need to sell the property, over which the plaintiff and his family was totally dependent; that the impugned sale-deed has been obtained by playing fraud on the plaintiff without obtaining the consent of his wife and relatives.(Para 3) The defendants contested the suit denying the allegations made in the plaint. The defendant No. 3 Gajendra Singh who is neither vender, nor vendee nor marginal witness to the sale deed in dispute and neither he has any concern nor any relief has been prayed against him and has been unnecessary impleaded by plaintiff, being son-in-law of his brother, and so has been arrayed as defendant-respondent no. 5 in the present second appeal(Para 4) 7 All. Nathu Singh & Anr. Vs Srimati Rajvati & Ors. 399 Held:(Paras-31-35) It is pertinent to mention that since from the evidence on record the plaintiff Dharam Veer Singh or his next friend Lakhpat Singh have failed to prove that on the above relevant dates or period the plaintiff Dharam Veer Singh was a person of unsound mind so Sri Lakhpat Singh or anybody else had no right to act as his next friend or guardian and could not have instituted suit for and on his behalf. The copy of sale deed dated 16.9.1971 executed by Smt. Ganga Devi in favour of defendant/appellant No. 1, paper No. 69/C on lower court record has absolutely no relevancy to the facts of the case and has no effect, on account of alleged clerical mistakes therein with respect to the plot number of land sold. In view of discussions made above I have come to the conclusion that both the substantial question nos. 1 & 2 are liable to be decided in favour of defendant/appellants and against the plaintiff/respondents and are decided accordingly. The judgment and decree passed by first appellant Court are, therefore, liable to be set aside and that which were passed by Trial Court in Civil Suit No. 236 of 1985 on 4.2.1991, are liable to be affirmed and restored and appeal is, liable to be allowed. Accordingly, the appeal is allowed with costs throughout. The i ## Text 398 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 29.07.2016 BEFORE THE HON'BLE HARSH KUMAR, J. Second Appeal No.- 420 Of 1998 Nathu Singh & Anr. ...Appellants Versus Srimati Rajvati & Ors. ...Respondents Counsel for the Appellants: T.S. Dabas, Jagdish Pathak. Counsel for the Respondents: V.K. Goel, Ajay Rajendra, P.S. Gupta. Civil Law-Second Appeal - Cancellation of sale-deed - Person of unsound mind - Next friend - Order XXXII Rule 15 C.P.C. - Presumption of soundness of mind - Specific plea - Admissible evidence - Nature and extent/degree/level - Fraud - Presumption - Agreement for sale - Income tax clearance - Registration - Mental Hospital Agra - OPD patient - Anxiety - Schizophrenia - Documentary evidence - Oral evidence - Burden of proof - Surmises and conjectures - Manifest error of law - Perversity - Substantial question of law - Void or voidable. The brief facts relating to the case are that Sri Dharam Veer Singh filed Civil Suit No. 236 of 1985 in the Court of Civil Judge Moradabad on 12.4.1985 for obtaining a decree for cancellation of sale-deed dated 17.9.1984 which is alleged to have been presented for registration in the office of Sub-Registrar on 19.10.1984 and was registered on 21.12.1984.(Para 2) In the suit was filed by Sri Dharm Veer Singh, through his next friend Lakhpat Singh, claiming himself (Dharam Veer Singh) to be a person of unsound mind, the allegations of plaint in brief are that, the plaintiff has 1/3rd share in the property plot Khasra Nos. 403, 422, 423 and 444 detailed at the foot of the plaint; that at the time of execution of impugned sale-deed, the plaintiff was not a person of sound mind, was not capable of understanding the contents of sale-deed and was not even able to understand as to why and on which papers he is putting his thumb impressions; that the impugned sale-deed was obtained in hurried and unnatural manner and was not read over or explained to the plaintiff; that the plaintiff did not receive any sale consideration and execution of saledeed for a sum of Rs. 50,000/- is without consideration; that the land in question was worth Rs. 1,50,000/- at the time of execution of alleged saledeed; that no permission to sell was obtained from the District Judge; that the plaintiff had no need to sell the property, over which the plaintiff and his family was totally dependent; that the impugned sale-deed has been obtained by playing fraud on the plaintiff without obtaining the consent of his wife and relatives.(Para 3) The defendants contested the suit denying the allegations made in the plaint. The defendant No. 3 Gajendra Singh who is neither vender, nor vendee nor marginal witness to the sale deed in dispute and neither he has any concern nor any relief has been prayed against him and has been unnecessary impleaded by plaintiff, being son-in-law of his brother, and so has been arrayed as defendant-respondent no. 5 in the present second appeal(Para 4) 7 All. Nathu Singh & Anr. Vs Srimati Rajvati & Ors. 399 Held:(Paras-31-35) It is pertinent to mention that since from the evidence on record the plaintiff Dharam Veer Singh or his next friend Lakhpat Singh have failed to prove that on the above relevant dates or period the plaintiff Dharam Veer Singh was a person of unsound mind so Sri Lakhpat Singh or anybody else had no right to act as his next friend or guardian and could not have instituted suit for and on his behalf. The copy of sale deed dated 16.9.1971 executed by Smt. Ganga Devi in favour of defendant/appellant No. 1, paper No. 69/C on lower court record has absolutely no relevancy to the facts of the case and has no effect, on account of alleged clerical mistakes therein with respect to the plot number of land sold. In view of discussions made above I have come to the conclusion that both the substantial question nos. 1 & 2 are liable to be decided in favour of defendant/appellants and against the plaintiff/respondents and are decided accordingly. The judgment and decree passed by first appellant Court are, therefore, liable to be set aside and that which were passed by Trial Court in Civil Suit No. 236 of 1985 on 4.2.1991, are liable to be affirmed and restored and appeal is, liable to be allowed. Accordingly, the appeal is allowed with costs throughout. The impugned judgment and decree dated 26.2.1998 passed by the Additional District Judge/Special Judge Moradabad, are set aside and the judgment and decree passed by 8th Additional Civil Judge, Moradabad in Civil Suit No. 236 of 1985 on 4.2.1991 are affirmed and restored. The suit of plaintiff-respondent stands dismissed with costs throughout. Case Law discussed: (Delivered by Hon'ble Harsh Kumar, J.) 1. The present second appeal has been filed by defendant Nos. 1 and 2 against the judgment and decree dated 16.2.1998 passed by Additional District Judge/Special Judge Moradabad in Civil Appeal No. 98of 1991 seeking the relief of setting aside the impugned judgment and decree passed by the first appellate Court and upholding the judgment and decree dated 4.2.1991 passed by the Trial Court in Civil Suit No. 236 of 1985 by which the plaintiff's suit for cancellation of sale-deed was dismissed with costs. 2. The brief facts relating to the case are that Sri Dharam Veer Singh filed Civil Suit No. 236 of 1985 in the Court of Civil Judge Moradabad on 12.4.1985 for obtaining a decree for cancellation of sale-deed dated 17.9.1984 which is alleged to have been presented for registration in the office of Sub-Registrar on 19.10.1984 and was registered on 21.12.1984. 3. In the suit was filed by Sri Dharm Veer Singh, through his next friend Lakhpat Singh, claiming himself (Dharam Veer Singh) to be a person of unsound mind, the allegations of plaint in brief are that, the plaintiff has 1/3rd share in the property plot Khasra Nos. 403, 422, 423 and 444 detailed at the foot of the plaint; that at the time of execution of impugned sale-deed, the plaintiff was not a person of sound mind, was not capable of understanding the contents of sale-deed and was not even able to understand as to why and on which papers he is putting his thumb 400 INDIAN LAW REPORTS ALLAHABAD SERIES impressions; that the impugned sale-deed was obtained in hurried and unnatural manner and was not read over or explained to the plaintiff; that the plaintiff did not receive any sale consideration and execution of saledeed for a sum of Rs. 50,000/- is without consideration; that the land in question was worth Rs. 1,50,000/- at the time of execution of alleged saledeed; that no permission to sell was obtained from the District Judge; that the plaintiff had no need to sell the property, over which the plaintiff and his family was totally dependent; that the impugned sale-deed has been obtained by playing fraud on the plaintiff without obtaining the consent of his wife and relatives. 4. The defendants contested the suit denying the allegations made in the plaint. The defendant No. 3 Gajendra Singh who is neither vender, nor vendee nor marginal witness to the sale deed in dispute and neither he has any concern nor any relief has been prayed against him and has been unnecessary impleaded by plaintiff, being son-in-law of his brother, and so has been arrayed as defendant-respondent no. 5 in the present second appeal. 5. On parties pleadings the trial Court framed as many as eight issues, out of which issue nos. 1, 2, 3, 6 and 7 have been framed on legal pleas taken in written statement issue nos. 4 and 5 are issues of facts, while issue no. 8 relates to the relief if any to which plaintiff is entitled. Issue no. 4 is, "whether the plaintiff is a person of unsound mind and has a right to file suit through next friend" and issue No. 5 is "whether the sale-deed dated 17.9.1984 is illegal for the reasons mentioned in Para 6 of the plaint". The Trial Court after analysis of evidence on record, held that the plaintiff has failed to prove that he is a person of unsound mind and so Lakhpat Singh has no right to file suit on his behalf as his next friend, and on issue no. 5, it came to the conclusion that the plaintiff has not been and is not a person of unsound mind and the sale-deed has been executed by him after understanding the affairs and so the impugned sale-deed is not liable to be cancelled. 6. In view of the findings on issue no. 4 and 5 against the plaintiff and in favour of the defendants, the Trial Court dismissed the suit of plaintiff with costs. 7. Feeling aggrieved with the dismissal of the suit, the plaintiff filed Civil Appeal No. 98 of 1991 in the Court of District Judge, Moradabad which was decided by impugned judgment and decree passed by the Additional District Judge/special Judge Moradabad, wherein by setting aside the judgment and decree passed by Trial Court, the appeal was allowed with costs and suit for cancellation of sale -deed dated 17.9.1984, (presented for registration on 19.10.1984 and registered on 21.12.1984,) was cancelled. Feeling aggrieved the defendants (vendees) of sale-deed in question have preferred this appeal against the heirs and legal representatives of Sri Dharam Veer Singh who were substituted on his death pending first appeal. 8. This second appeal has been admitted on following two substantial questions of Law on 8.2.2012:- "1. Whether the plaintiff Dharam Veer Singh had been able to prove by admissible evidence that on 19.10.1984 when the sale deed was executed and on 21.12.1984 when it was 7 All. Nathu Singh & Anr. Vs Srimati Rajvati & Ors. 401 registered, he was of unsound mind and the unsoundness of mind was of such level which rendered the deed executed by him to be void or voidable? 2. Whether Lakhpat Singh could act as next friend/guardian of Dharam Veer Singh and could file suit as such?" 9. The suit for cancellation of sale-deed has been filed by Lakhpat Singh as next friend of Dharm Veer Singh claiming him to be a person of unsound mind. It is disputed as to whether at the time of institution of suit the plaintiff Dharam Veer Singh was a person of unsound mind or not and undoubtedly, if Dharam Veer Singh was not a person of unsound mind, neither Lakhpat Singh nor anybody else could have acted as his next friend or guardian nor could have instituted suit for and on his behalf. However, as far as the competency of Lakhpat Singh, to work as next friend/guardian of Dharam Veer Singh and to file suit for and on his behalf, in case of his being a person of unsound mind is concerned, there may hardly be any dispute as to his competency on account of his being cousin brother, despite the fact that his wife was alive and was equally competent to act as his next friend . 10. Order XXXII of the Code of Civil Procedure contains provisions under various Rules, for suits by or against minors and persons of unsound mind. Relevant Rules, Rule 1,4 and 15 of Order XXXII of C.P.C. are the being reproduced as under: "1. Minor to sue by next firend- Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. 4. Who may act as next friend or be appointed guardian for the suit-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his grardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next freiend, a defendant, or, in the case of a grardian for the suit, a plaintiff. 15. Rules 1 to 14 (Except rule 2A) to apply to persons of unsound mind.- Rules 1 to 14 (Except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing of being sued." 11. From above provisions contained in Order XXXII Rule 15 C.P.C, it is crystal clear that in case of a person of unsound mind, the same procedure will be applicable, which is applicable in the cases of suits by or against minors. So for filing suit as next friend, 2 conditions are required to be fulfilled viz. (1) The plaintiff should be a minor or person or of unsound mind at the time of institution of suit and (2) The person acting as his next friend/guardian should be major and of sound mind, and should neither have any interest adverse to the interests of minor or person of unsound mind nor should be defendant in that suit. 402 INDIAN LAW REPORTS ALLAHABAD SERIES 12. The argument of defendant-appellant that since the real brother, nephews and wife of plaintiff Dharam Veer Singh were alive and could have aced as his next friend, so in their presence Lakhpat Singh/cousin (the son of Dharam Veer Singh's Bua) was not competent enough to file suit as his next friend for and on behalf of Dharam Veer Singh, has no force. It is not disputed that Lakhpat Singh is major and a person of sound mind. There is nothing on record to show that Lakhpat Singh had any interests adverse to the interests of plaintiff Dharam Veer Singh, or was defendant in this suit and so despite of the availability of some other close relatives or wife of plaintiff Dharam Veer Singh, who could also have been competent to act as his next friend, his distant cousin brother Lakhpat was equally competent to act as his next friend, subject to the only condition that if Dharm Veer was a person of unsound mind at the time of institution of suit and not otherwise. However, if it is proved from the evidence on record, that Dharam Veer Singh was not a person of unsound mind at the time of institution of suit, of course Lakhpat Singh, or anybody else may not have any right to file suit for and on his behalf and act as his next friend or guardian, irrespective of the fact that he suffered from alleged unsoundness of mind of any extent, at any prior or subsequent, point of time . 13. Under substantial question of law, framed as question No. 2, it is to be considered as to whether the plaintiff has been able to prove from any admissible evidence that on 17.1.1984, when the sale deed was executed on 19.10.1984 when it was presented for registration or even on 19.12.1984 when it was registered in books of Sub-Registrar office, in Bahi Ist, Zild 145 on page Nos. 7 and 8 at serial no 2661 on 21.12.1984, or during entire period mentioned above, the plaintiff was a person of unsound mind and the unsoundness of mind was of such degree/level which renders the sale-deed executed by him to be void or voidable. 14. The trial court holding that the plaintiff has failed to prove that he was a person of unsound mind at the time of execution of sale-deed, dismissed the suit, but in appeal under Section 96 of Code of Civil Procedure, the first appellate Court, setting aside the findings of Trial Court allowed the appeal and decreed the suit of plaintiff for cancellation of sale deed by impugned judgment and decree. 15. The perusal of the pleadings as well as material on lower Court records show that in this suit for cancellation of sale deed instituted on 12.4.1985, through next friend, there is no specific plea or allegation in the plaint as to from which date, time or period plaintiff Dharam Veer Singh is suffering from alleged unsoundness of mind and such unsoundness of mind if any continued upto which date, time or period and there is no iota of evidence to above effect. It has also not been specifically pleaded as to when and why he went with defendant no. 3, his brother's son- in-law, not vendee, (as alleged in para 5 of the plaint) and as to when he returned from the alleged place. In any case there is no evidence on record to show that he ever went to the place of defendant No. 3. It may not be disputed that under law there is presumption of soundness of mind of any person, unless and otherwise he is pleaded and proved to be of unsound mind. The person who claims to be suffering from unsoundness of mind, has to specifically plead and prove the specific period during which, he was suffering with unsoundness of mind as well as nature and extent/degree/level of such unsoundness of mind if any. Similarly unless the fraud is proved, there 7 All. Nathu Singh & Anr. Vs Srimati Rajvati & Ors. 403 will be presumption that no fraud was played, and there can be no presumption of fraud having been played. 16. The evidence on record show that impugned sale-deed was written on 17.9.1984, but for want of income tax clearance could not be registered the same day and so on that day a registered agreement for sale was executed between plaintiff Dharam Veer Singh and defendantappellants with terms and conditions that, upon obtaining the income tax clearance by the vendor, sale-deed will be executed. It is not disputed that income tax clearance was obtained by plaintiff Dharam Veer singh on 1.10.1984 upon which the sale-deed was presented for registration by plaintiff Dharam Veer Singh on 19.10.1984, admitting its execution before the subregistrar and consequently the entries of sale-deed in dispute were registered /made in respective registers of Sub-Registrar's Office in due course of time on 21.12.1984. It is noteworthy that the validity of agreement for sale dated 17.9.1984 has not been challenged by plaintiff Dharam Veer Singh on the ground of unsoundness of mind or otherwise. 17. The plaintiff Dharam Veer Singh, through his alleged next friend Lakhpat Singh has produced himself as PW 1, Rajwati the wife of plaintiff as PW 2, Gopal Singh as PW 3, and Hira Singh as PW 4. In documentary evidence he has produced certain prescriptions regarding alleged treatment of Dharam Veer Singh, along with copy of application allegedly moved by wife of plaintiff on 7.9.1981 as well as copies of registered sale deeds executed by Smt. Ganga Devi, in favour of defendant-appellant No. 1 and Lal Singh. Plaintiff's paper No. 62/c , is a prescription dated 23.4.1986 of Mental Hospital, Agra of outdoor patient (OPD) in the name of Dharam Veer Singh, paper No. 63/A is the certificate issued by Senior Medical Superintendent Mental Hospital, Agra, certifying that Dharam Veer Singh was treated in his hospital as outdoor patient from 23.4.1986 to 25.4.1986 and 7.5.1986 to 31.5.1986, Paper no. 64/A is prescription of Dharam Veer Singh dated 8.12.1986, prescribing certain Ayurvedic medicines for anxiety at Government Ayurvedic Hospital, Rajunagla, Bareilly and paper No. 65/A is another prescription dated 3.11.1991 of Government Ayurvedic Hospital mentioning Dharam Veer Singh to be a suspected case of anxiety neuro and referring him to mental hospital Bareilly for expert treatment and diagnosis. 18. There is no whisper in statements of any of the plaintiff's witnesses and nothing on record to show that under the reference slip paper No. 65/A, plaintiff/Dharam Veer Singh was ever taken to mental hospital, Bareilly for treatment or diagnosis of suspected ailment if any, or was treated by any such expert medical officer for any period or point of time. There is no other document or oral evidence on record to prove that Dharam Veer Singh was suffering from alleged unsoundness of mind or even from the anxiety as was suspected in 65/A at any point of time. 19. In oral evidence PW 3 Gopal Singh LDC of Mental Hospital Agra has stated that according to opinion of doctors, Dharam Veer Singh was suffering from Schizophrenia, and he has filed two papers, the copy of OPD Register and FCT Register paper nos. 99 and 100/C per list 98/C. 404 INDIAN LAW REPORTS ALLAHABAD SERIES 20. Even if the above evidence of plaintiff on record is taken to be correct for the sake of arguments, at the most, plaintiff Dharam Veer Singh may be deemed to be suffering from some mental anxiety w.e.f 23.4.1986 to 8.12.1986 but was not suffering from unsoundness of mind of any degree at any point of time before or after 23.4.1986. It is pertinent to mention that all these papers have been obtained from 23.4.1986 to 8.12.1986, during pendency of suit, after more than one year from the institution of suit on 12.4.1985 and relate only to a limited period of 9 months. In view of the above evidence on record I am of the considered view that the plaintiff Dharma Veer Singh is not proved to be a person of unsound mind for any period or point of time, prior or subsequent to 23.4.1986 to 8.12.1986, or at the time of institution of suit on 12.4.1985 or prior to it at the time of execution of sale-deed of 17.9.1984 or at the time of its registration on 19.10.1984. 21. It is pertinent to mention that paper no. 77/C and 90/C on record of Court below are copies of the registered sale-deeds executed by above plaintiff Dharam Veer Singh on 16.5.1977 and 15.6.1983 respectively executions whereof is not disputed. It is also pertinent to mention that on 7.9.1981, Smt. Rajwati, wife of plaintiff Dharam Veer Singh allegedly sent an intimation by registered post through Sri G.D. Pandey, Advocate, paper No. 85/C to the Sub- Registrar, stating that her husband Dharam Veer Singh is a person of unsound mind and is missing since last 8-10 months and if somebody taking undue advantage of unsoundness of his mind, obtains sale deed in respect of his 1/3 share in 5 agricultural plot nos. 169, 403, 422,423, 444, she will suffer and so if somebody comes with the sale-deed, the same may not be registered. The disputed sale deed is not alleged to have been obtained by defendant/appellants during above period of 8-10 months of missing of plaintiff Dharam Veer Singh or within the proximity of one or two year from above period. On the other hand the Sale-deed 90/C dated 15.6.1983 has been executed by plaintiff Dharam Veer Singh in respect of his agricultural plot No. 169, which is one of the plot mentioned in intimation 85/C dated 7.9.1981, inspite of which the validity of above sale deed has not been challenged, on account of alleged unsoundness of mind or missing period. It also proves that after the alleged period of missing on 15.6.1983 at the time of execution of sale deed 90/C by him and thereafter he was a person so sound mind and continued to be so till his death and soundness of his mind on and after 15.6.1983 is admitted to plaintiff/respondents. 22. The first appeallate Court at page 4 of the certified copy of the impugned judgment on record has mentioned that the first question for consideration in this appeal is "Whether plaintiff Dharam Veer Singh was as person of unsound mind at the time of execution of sale-deed dated 17.9.1984". and has relying on the prescription paper Nos. 62, 63 C wherein, it has been certified that Dharam Veer Singh was treated as outdoor patient in mental hospital, Agra from 23.4.1986 to 25.4.1986 and 7.5.1986 to 31.5.1986, as well on statement of PW 3 Gopal Singh that in the opinion of doctors he was suffering from schizophrenia has decided the question affirmatively in favour of plaintiff. It has been further held by first appellate court that the objection of defendants that he was not suffering from schizophrenia, is not correct because the statement has been given by the witness after going through the relevant register. The first appellate court has also discarded the argument of defendants that the ailment of anxiety mentioned in the prescription may not be considered to be unsoundness of mind of any degree, in view of following statement of DW.4. 7 All. Nathu Singh & Anr. Vs Srimati Rajvati & Ors. 405 "Main Yah nahi kah raha hoon ki 64-ga nukshe me ullikhit davaon ka prayog mansik rogo ke liye nahi hoga, lekin mera kahna hai ki yah davayen usme gudkari nahi hongi." 23. The first appellate court has further held that since the wife of plaintiff Dharam Veer Singh in her statement on oath as PW 2, recorded on 17.9.1988 and 22.1.1991, has stated in first statement that he is a person of unsound mind since 5 years and in subsequent statement since 1213 years, it appears that unsoundness of mind of Dharam Veer aggravated in 1981, when intimation to Sub-Registrar was sent by his wife and inspite of the fact that the validity of the saledeed executed on 15.6.1983 by plaintiff Dharam Veer Singh in respect of his agricultural land No. 169 in favour of Nazir has not been challenged on account of unsoundness of his mind, the first appellate Court went on holding that the plaintiff Dharam Veer Singh was a person of unsound mind since 1981 and the possibility of getting the sale-deed dated 15.6.1983 executed in such condition, may not be ruled out. 24. It is also pertinent to mention that on page 7 of the judgment, the first appellant Court has observed that plaintiff Dharam Veer Singh was not produced by the defendant Nathu Singh before the Court, which is not only surprising and absurd but foolish also and is like putting the cart before the horse. Under any preposition of law the defendant may not be asked to produce the plaintiff Dharam Veer, in disprove the plaintiff's case, instead of drawing adverse inference against the plaintiff's next friend for not producing Dharam Veer Singh the first appellate court wrongly and illegally drawn adverse inference against the defendants. The observations of first appellate Court at the same page that DW.1 has not given any statement about the mental condition of Dharam Veer Singh also shows that the first appellate court acted wrongly illegally and with utmost perversity in shifting the burden of proof of plaintiff, on the defendant and the above findings being perverse appears to be based on some extraneous considerations, because of which the first appellate court was bent upon for presuming plaintiff Dharam Veer to be a person of unsound mind and further to cancel to sale deed in dispute with senseless findings and ignoring the basic principle of law that plaintiff has to stand on his own legs and may not take benefit of weakness if any in defence case. 25. The first appellate Court at page 8 has also stated that defendant No. 3 had taken plaintiff to his home on some pretext but there is no iota of evidence as to when and on what pretext he was allegedly taken by defendant No. 3. Moreover it is noteworthy that defendant No. 3 is son-inlaw of plaintiff's real brother and is neither vendee nor marginal witness nor scribe of sale deed in dispute nor there is any iota of evidence to show his connivance with defendant/appellants in any manner and for even in case of alleged fetching of Dharam Veer by defendant No. 3 at any point of time (which is not proved), the impugned sale deed may not be cancelled. 26. It is pertinent to mention that there is no whisper in the plaint that on which date or time the plaintiff Dharam Veer came to know about the execution and registration of impugned sale deed. The first appellate court has also went on holding that the sale-deed in dispute is without consideration. There is no evidence on record to prove that at the time of execution of sale-deed in question, the property sold was worth Rs. 1, 50,000/- or more than Rs. 50,000/- or to contradict the 406 INDIAN LAW REPORTS ALLAHABAD SERIES presumption of correctness of the endorsement of Sub-Registrar about payment of consideration. It is pertinent to mention that after execution of sale-deed when it could not be registered for want of income tax clearance, an agreement for sale was executed between defendant/appellants and the plaintiff Dharam Veer Singh, and after obtaining income tax clearance from Income Tax office by Dharam Veer Singh the sale-deed was presented by him for registration before Sub-Registrar on 19.10.1984. It is also pertinent to mention that in the meantime, the plaintiff Dharam Veer Singh mischievously also obtained a loan from bank over the land in question, which proves his cleverness and cunningness and that he has never been a person of unsound mind, at any point of time, whatsoever and the entire story of unsoundness of his mind is not only false and incorrect but has been concocted to just avoid the sale deed in question. 27. The above findings so recorded by the first appellate Court are not only wrong, vague, absurd, illegal and based on surmises and conjectures but also suffer from manifest error of law and very high degree of perversity. 28. The above documentary evidence filed by the plaintiff Dharam Veer for proving him to be a person of unsound mind, does not make any whisper of about unsoundness of his mind for any point of time or during any period whatsoever or even during the period of his treatment from 23.4.1986 to 8.12.1986. In any of the above papers/prescriptions there is no mention of history of patient regarding any mental illness or anxiety. In prescription 62/C, there is only mention of certain medicines, in certificate 63/A there is only mention of treatment on certain dates as OPD patient, while prescription 64/A only mentions 'anxiety' & prescribing certain ayurvedic medecines " Su Kupilu, Abhrak Bhasm, Prabal Mool Bhasm, Arogya Wardahini vati etc. 29. Any of above papers do not speak that plaintiff Dharam Veer Singh was suffering from schizophrenia. Admittedly, Dharam Veer Singh was not hospitalized for any period of time or even for a single day for alleged treatment of Schizophrenia or any other kind of unsoundness of mind, which itself tells the story of false claim of alleged unsoundness of mind. The PW 3 who has stated that Dharam Veer Singh was suffering from schizophrenia, on basis of papers which have been filed by him as papers, copies of register No. 99/C, 100/C out of which paper No. 99/C consists only entries of patients including the name of Dharam Veer Singh as OPD patient on 23.4.1986 and paper No. 100/C states his treatment on particular dates, but none of these papers state of or carries any opinion by doctors that he was suffering from schizophrenia or any other type of unsoundness of mind at any point of time or for any period, whatsoever, and so the statement of PW 3 being not supported by any documentary evidence can not be relied. Surprisingly the first appellate court read something which is not even mentioned in any document on record. It is also pertinent to mention that since all these papers relate to only few days treatment as OPD patient, over the entire period from 23.4.1986 to 8.12.1986 and have been obtained during pendency of suit, at the most, it may be inferred that during pendency of suit plaintiff Dharam Veer Singh suffered from some mental anxiety for a total period of around 9 months. However, in view of above evidence, he may not be considered to be suffering from alleged unsoundness of mind for above period of 9 months or any period before or after it. Further in view of above evidence on record, on account of alleged 9 months treatment as OPD patient from April and December 1986 for mental anxiety, it is not 7 All. Nathu Singh & Anr. Vs Srimati Rajvati & Ors. 407 proved that one year before commencement of treatment, on 12.4.1985 at the time of institution of suit, or about 11⁄2 years ago on 17.9.1984 or 19.10.1984 at the time of execution and registration of the disputed sale-deed, plaintiff Dharam Veer Singh was suffering from any kind or degree of unsoundness of mind whatsoever. Moreover since Dharam Veer Singh had executed a registered sale-deed on 15.6.1983 (10 months before disputed sale deed) in respect of his land holding No. 169 in favour of Nazir, the correctness and validity of which, has not been challenged, so it proved that admittedly plaintiff Dharam Veer Singh if at all was suffering from some mental anxiety in 1981 or so, he was not a person of unsound mind on 15.6.1983 and thereafter. The plaintiff has no right of pick and choose, between the two sale deeds for cancellation is case they were obtained from a person of unsound mind. Hence the findings of the first appellate Court in the impugned judgment that on account of sending the intimation by his wife to Sub-Registrar, he was suffering from unsoundness of mind since 1981, is absolutely wrong, illegal and perverse. The learned first appellate Court has acted wrongly in not considering that in order to prove plaintiff Dharam Veer Singh to be a person of unsound mind, entire evidence was prepared during pendency of suit which has no evidentiary value to prove him to be a person of unsound mind at the time of to institution of the suit or prior to it at the time of execution and registration of sale-deed in question. 30. In view of the discussions made above, I have come to the conclusion that the findings recorded by first appellate Court are vague, wrong, illegal, and not only suffer from manifest error of law but are also perverse to a great extent and emit bad smell. The plaintiff Dharam Veer Singh and his alleged next friend Lakhpat Singh have failed to prove by any admissible evidence on record that on 17.9.1984 at the time of execution of disputed sale-deed or on 19.10.2014 at the time of its presentation for registration before the Sub-Registrar or even on 21.12.1984 at the time of making of its entries in books of Sub-Registrar's office or even on 12.4.1985, at the time of institution of the suit, the plaintiff Dharam Veer Singh was suffering from unsoundness of mind of to any kind, degree or level, which may render the disputed sale-deed void or voidable. All the evidence produced by plaintiff Dharam Veer Singh in this regard, has been obtained/fabricated during the pendency of suit, which is inadmissible in evidence and even from above evidence, if accepted as such, for the sake of arguments, the plaintiff Dharam Veer Singh is not proved to have been suffering from schizophrenia or unsoundness of mind of any kind or degree for any point or period of time during aforementioned relevant dates and period or even for a period from 23.4.1986 to 8.12.1986. 31. It is pertinent to mention that since from the evidence on record the plaintiff Dharam Veer Singh or his next friend Lakhpat Singh have failed to prove that on the above relevant dates or period the plaintiff Dharam Veer Singh was a person of unsound mind so Sri Lakhpat Singh or anybody else had no right to act as his next friend or guardian and could not have instituted suit for and on his behalf. 32. The copy of sale deed dated 16.9.1971 executed by Smt. Ganga Devi in favour of defendant/appellant No. 1, paper No. 69/C on lower court record has absolutely no relevancy to the facts of the case and has no effect, on account of alleged clerical mistakes therein with respect to the plot number of land sold. 408 INDIAN LAW REPORTS ALLAHABAD SERIES 33. In view of discussions made above I have come to the conclusion that both the substantial question nos. 1 & 2 are liable to be decided in favour of defendant/appellants and against the plaintiff/respondents and are decided accordingly. 34. The judgment and decree passed by first appellant Court are, therefore, liable to be set aside and that which were passed by Trial Court in Civil Suit No. 236 of 1985 on 4.2.1991, are liable to be affirmed and restored and appeal is, liable to be allowed. 35. Accordingly, the appeal is allowed with costs throughout. The impugned judgment and decree dated 26.2.1998 passed by the Additional District Judge/Special Judge Moradabad, are set aside and the judgment and decree passed by 8th Additional Civil Judge, Moradabad in Civil Suit No. 236 of 1985 on 4.2.1991 are affirmed and restored. The suit of plaintiff-respondent stands dismissed with costs throughout. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 29.07.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE HARSH KUMAR, J. First Appeal No.- 425 Of 2000 Suraj Prasad Keshari ...Appellant Versus Pyare Mohan ...Respondent Counsel for the Appellant: A.S. Rai, Alok Kumar Gupta, Vimlesh Kumar Rai Counsel for the Respondent: Sushila Singh, A.P. Srivastava, Subhra Singh Civil law - First Appeal - Section 96 C.P.C. - Judgment and decree dated 24.02.2000 - Civil Suit No.131 of 1994 - Easementary right - Disputed Gali - Pakki Nali - Ventilators - Windows - Nabdan - Pipes - Flow of water - Light and air - Continuous - Peaceably - Without interruption - As of right - More than 20 years - Prescriptive right of easement - Declaration - Permanent prohibitory injunction - Written statement - No specific denial - Admission by Rule of pleadings - Advocate Commissioner report - Spot position - Dimensions - 8 feet wide Gali - 2 feet 3 inches wide Pakki Nali - Exclusive ownership - Public lane - Easementary right of way - Egress and ingress - Cleansing of Nali - White wash - Painting - Repairs - Findings on issue no.2 - Wrong - Illegal - Perverse - Appeal partly allowed - Findings set aside - Rest of judgment and decree confirmed.