Punjab-Haryana High Court
(O&M) Pargat Singh & Anr vs Darbara Singh & Ors on 19 January, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:008248
RSA-2447-1999 (O&M) 1 2024:PHHC:008248
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2447-1999 (O&M)
Date of decision: 19.01.2024
Reserved on : 09.01.2024
Pargat Singh and another
....Appellants
Versus
Sh.Darbara Singh and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr.Kanwaljit Singh, Sr. Advocate with
Mr. K.S.Brar Advocate for the appellants
Mr. R.V.S.Chugh, Advocate for respondents no. 1 and 6
Mr. Arun Bansal, Advocate for respondent no.2 and 3
ANIL KSHETARPAL, J
1. This is defendants' Regular Second Appeal to challenge
the correctness of judgment and decree passed by the First Appellate
Court, which in turn, reversed the judgment and decree passed by
the trial court. In the opinion of the Court, the following question/
issue/ point arises for consideration
"What is the evidentiary value of an opinion given by a
Doctor with respect to a patient's mental health, without physically
examining him?"
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2. In order to comprehend the issue involved, some
relevant facts, in brief, are required to be noticed.
3. The relevant part of the Pedigree table of the family is
extracted as under:-
Gurditta Singh
l
Fauja Singh
l
____________________________________________________________________________________
l l l l
Jagmail Singh Jasmail Kaur Darbara Singh Kirpal
l
___________________
l l
Sajjan Singh Dhanna
l
______________
l l
Pargat Jit Singh
Singh @ Surjit
Singh
4. On 30th January, 1987, a civil suit No. 82 was for grant
of decree of declaration that the plaintiffs are owner in possession of
9/10th share in equal share out of the land measuring to 274 kanals
14 marlas situated within the revenue limits of village Pero, filed by
Surjit Singh @ Jit Singh & Pargat Singh (minor) sons of Sh.Dhanna
Singh son of Sh.Kirpal Singh against Jagmail Singh and Darbara
Singh sons of Sh.Fauja Singh son of Sh.Gurditta. Sajjan Singh,
Dhana Singh sons of Sh.Kirpal Singh son of Sh.Gurditta alleging
distribution of the family property on the basis of a family
settlement arrived at about a year back before the date of filing of
the suit. While admitting the claim of the plaintiffs, filed their
written statement which was duly signed or thumb marked by all the
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defendants alongwith their counsel. A statement of the counsel
representing the defendants was also recorded to this effect resulting
in decree passed by the Court on 9th February, 1987 in terms the
prayer made in the plaint. Sh.Darbara Singh through his sister
Jasmail Kaur filed a suit on 20th April, 1987 seeking decree of
declaration that he is a co owner in the land measuring 276 kanals
14 Marlas along with defendant No. 3 to 5 and the decree obtained
by defendant No. 1 and 2 on 9th February, 1987 is illegal, null and
void, where it was claimed that the plaintiff ( Sh.Darbara Singh) is a
lunatic and therefore, not competent to suffer the decree. It was
claimed that the decree results in transfer of immovable property
worth more than Rs.100/- and unless it is registered, it it will have
no effect. Moreover, plaintiff and defendant No. 3 to 5 never gave
suit land in partition in favour of defendant No. 1 and 2 (the
plaintiffs in the previous suit) as he had no connection with them.
The trial court dismissed the suit. The First Appellate Court culled
out the additional issues and sought report from the trial court while
allowing two applications filed by the plaintiffs; one for amendment
of the plaint and second for culling out additional issues. Before the
trial court, Dr. Ravinder Mohan Sharma was examined by the
plaintiff, who produced the plaintiff's record from the Punjab Mental
Health Hospital from 5th July, 1959 to the year 1977. After receipt
of the report, the First Appellate Court has reversed the judgment
and decree passed by the trial court, while declaring that in the year
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1987 the plaintiff was lunatic, and thus, not competent to give
concession in the previous suit. The court has also held that the
decree passed in the year 1987 is unregistered and therefore, is not
resulting in transfer of the property and there was no written
compromise between the parties.
5. Against the aforesaid judgment of the First Appellate
Court, the defendants have come up in appeal, which was admitted
for regular hearing.
6. Heard the learned counsel representing the parties at
length and with their able assistance perused the paperbook
alongwith requisitioned record and their respective synopsis with
the gist of their arguments.
7. On one hand, the learned counsel representing the
appellant while drawing the attention of the Court to the deposition
of PW 4 Dr. Ravinder Mohan Sharma submits the following:-
a) That there is no evidence to prove that Sh.Darbara
Singh remained under treatment from any doctor relating to mental
health past 1977.
b)That Sh. Darbara Singh never appeared in evidence
as a witness and the court never got him examined in order to assess
his mental health by drawing court's attention to the judgment
passed on 9th February, 1987.
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c) That Sh.Jagmail Singh and Sh. Darbara Singh sons of Sh.Fauja
Singh and Sajjan Singh and Dhanna Singh sons of Kirpal Singh had
jointly suffered a decree in favour of Surjit Singh and Pargat Singh.
d) That Jagmail Singh is not only a real brother of Sh. Darbara
Singh, but he is also defendant no.1 in the aforesaid suit, and
e) That other members of the family have never
assailed the correctness of the judgment and decree passed on 9th
February, 1987.
8. On the other hand, the learned counsel representing the
respondent has submitted the following:-
a)Sh.Darbara Singh and Jagmail Singh were unmarried
and issueless.
b)He submits that as per the case of the appellants
Jagmail Singh was residing with the appellants, but he was never
examined in evidence.
c)That Darbara Singh was sentenced to life
imprisonment in a murder case, where, he was released on parole.
At that time, Jarnail Singh alias Ajmer Singh gave undertaking that
he will not get signatures of Sh.Darbara Singh on any legal papers.
d) That condition of parole was violated by suffering a
decree in the year 1987.
e)That Dr. Ravinder Mohan Sharma has proved that
Sh.Darbara Singh was mentally sick and therefore, not in a position
to admit the claim of the plaintiff in a suit filed in the year 1987,
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which resulted in the judgment and decree dated 9th February, 1987.
f) That the presumption against defendant should be
drawn as the appellant never produced Sh.Darbara Singh in the
court for his medical examination through the court.
g)In the end, he submits that the appellants got
executed a sale deed from Sh.Darbara Singh on 18th October, 2012
and also got executed a registered Will from him on 2nd May, 2008
and on the complaint of Jasmail Kaur, Dhana Singh, Pargat Singh,
Jasmer Singh, Surinder Pal Sharma, Lal Singh and Salta Singh were
convicted and sentenced to rigorous imprisonment vide judgment
dated 18th March, 2019.
9. Now, it becomes important to appreciate the evidence
led by the parties. The plaintiffs have examined PW1 Ujjagar
Singh. He is a resident of village Pero @ Peron where the land is
situated and the parties are residing. He states that Sh.Darbara
Singh is not of sound disposing mind and he is being looked after by
his sister Jasmail Kaur. He denies the suggestion of the defendant
that Sh.Darbara Singh resides with his nephew namely Surjit Singh
alias Jeet Singh.
10. PW2 is also a resident of the village. He states that
Sh.Darbara Singh is not of sound disposing mind. On being
questioned, he stated that Sh.Darbara Singh is not getting medical
treatment for his medical condition. PW3 is Jasmail Kaur, sister of
Sh.Darbara Singh. The suit has been filed through her. She is
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married in village Sardoolgarh, but she states that she is residing in
village Pero for the last 2-3 years. She claims that the Darbara Singh
is mad and is not aware of anything whether good or bad. In the
cross examination, she admitted that Jagmail Singh, other brother of
Sh.Darbara Singh is residing with Dhana Singh etc. and Sh.Darbara
Singh is able to walk and goes to Sardoolgarh, whenever she visits
that village. On being questioned with respect to the treatment of
the Darbara Singh, she submitted that she did not get Sh.Darbara
Singh treated from any doctor. She again appeared in evidence in
the year 1997 when the case was remitted back for submitting report
by the First Appellate Court, after framing the additional issue. In
the cross-examination, she admitted that Sh.Darbara Singh was
residing with the defendants. PW4 Darshan Singh is again a
resident of village, who has supported the case of the plaintiff. PW4
renumbered as PW5 states that he has brought the hospital record of
Sh.Darbara Singh. He was referred to mental hospital on 5th March
1959 by the Central Jail, Patiala, where it was discovered that he
was suffering from Schizophrenia. At that time, after conviction in a
murder case, he was undergoing life imprisonment after conviction
in a murder case. His life imprisonment was completed on 27th July,
1970 and he remained in the hospital as criminal upto 27th July
1970 and thereafter, he remained in the hospital as a patient. He was
sent to reside in parole during this period and he remained under
treatment upto 1977, though, he was discharged from the hospital on
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20th January, 1974. He was treated by Dr. Baldev Kishore, the Chief
Medical Superintendent. In the cross-examination, he has stated
that he never examined, treated or attended Darbara Singh. In
layman's terms, he has stated that Sh.Darbara Singh was suffering
from major mental disorder which is called Meloneholia, which is a
curable illness. The court questioned him with regard to the
expected position of Sh.Darbara Singh on 6th or 9th February, 1987.
He stated that nothing can be said for sure but chances are that there
will be residual symptoms. On the other hand, the defendants
examined DW1 Varinder Bhatnagar, hand-writing and fingerprint
expert to prove the thumb impression of Sh.Darbara Singh, DW2
Sajjan Singh son of Kirpal Singh, another nephew of Sh.Darbara
Singh. He stated that he along with Jagmail Singh, Darbara, Singh,
Dhana Singh are residing with Surjit Singh and Pargat Singh.
Darbara Singh is of sound disposing mind and they jointly suffer a
decree in the year 1987. DW3 Labh Singh is Sarpanch of the
village, who has stated that the Darbara Singh is of sound disposing
mind and is residing jointly with Surjit Singh and Pargat Singh. DW
4 Santa Singh is a member of the panchayat. He also stated that
Darbara Singh is of sound disposing mind and he is active in
agricultural work. DW5 Gurbandh Singh Sekhon, Advocate filed
the written statement in the year 1987 on behalf of Jagmail Singh,
Darbar Singh Dhana Singh and Sajjan Singh.
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11. The plaintiffs in order to prove the mental health of
Sh.Darbara Singh has produced Ex. PW4/A, discharge certificate of
Sh.Darbara Singh issued in January, 1974. It is evident that on
furnishing of bonds by Ajmer Singh, Sukhdev Singh and Sajjan
Singh, Darbara Singh was discharged from the hospital. He was sent
to parole under the care of his elder brother. Thereafter, on 20 th July
74, he returned to the hospital and on 22nd July 1974, he was again
released for a period of six months. Ex.DX is a medical certificate
issued by the Medical Officer, Central Jail, Patiala. Ex.CY is again
a document which shows that on 22nd January, 1974, he was sent on
parole for a period of two months on furnishing bonds. Ex. CX is a
note given by the doctor to prove that Sh.Darbara Singh was not
well oriented as he failed to tell the month. However, he identified
that he is in the hospital. His general knowledge was stated to be
poor.
12. From analyses of the aforesaid evidences, it becomes
evident that there is absolutely no evidence to prove that Darbara
Singh remained under treatment for any mental sickness whatsoever
after 1977. In fact, there is no evidence for his treatment or visit to
any doctor post 1977. He was released from the hospital in January,
1974. No evidence has been produced to prove that he was under
any major treatment though he was visiting the Hospital upto the
year 1977. A period of more than a decade is sufficiently long time.
In the absence of evidence to prove that Darbara Singh was not
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mentally sound in the year 1987 when the decree was passed, the
First Appellate Court has erred in reversing the judgment and decree
passed by the trial court.
13. In this case, Smt. Jasmail Kaur herself admits that she
has never got Sh.Darbara Singh treated from any doctor. In these
circumstances, obvious and natural conclusion would be that
Darbara Singh does not require any treatment and he was normal
and healthy without any mental disability. In such circumstances,
the First Appellate Court has erred in relying upon Modi's book of
medical jurisprudence. Dr. Ravinder Mohan Sharma admitted that
Schizophrenia is a curable disease. Moreover, the court can not
overlook the fact that at the relevant time, due to conviction in a
murder case Darabara Singh was undergoing life imprisonment.
14. Though Dr. Ravinder Mohan Sharma has stated that
there will be residual symptoms while answering the courts
questions, however, this is only in the form of his opinion. He was
summoned along with the record from the hospital. He never
examined, treated or assessed the mental sickness of Sh.Darbara
Singh himself. Section 45 of the Indian Evidence Act 1872 provides
that opinion of experts are relevant facts in evidence. However,
these are evidence of opinions. Such opinion is not substantive
evidence. Medical opinion being an opinion is advisory in nature
and not binding upon the court. The court has to form its own
opinion, considering material, data and analysis of evidence
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produced. Reference in this regard can be placed on the judgment
of the Supreme Court in Madan Gopal vs. Naval Dube (1992) 4
SCC 69.
15. It may be noted here that while analysing the opinions
of the expert, the court, being the final obiter is required to critically
examine the same. The opinions based on his study and experience
earned by expert over a period of time and his perception are
relevant, however, these cannot be conclusive. Expert evidence
should be evaluated with considerable care and caution. An expert
witness is naturally biased in favour of the party, who calls him in
evidence. However impartial, he may wish to be, he is likely to be
unconsciously prejudiced in favour of the side calling him. Besides,
an expert is often called by one side simply and solely because it has
to be ascertained that he holds views favourable to his interest.
Reliance in this regard can be placed on the judgment passed in
Diwan Singh and others vs. Emperor 1933 AIR Lahore 561.
While analysing the entire evidence, the court should not overlook
the positive evidence lead by eye witnesses who have seen the
development. Moreover, the medical evidence does not itself prove
the case of the plaintiff. Its value is only corroborative.
16. In the facts of the case, the First Appellate Court erred
in overlooking the direct evidence namely the Sarpanch and
member of the Panchayat, who have appeared in evidence as DW3
and DW4. They are not interested witnesses.
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17. In this case, the courts below have erred in failing to get
Sh.Darbara Singh examined from a good expert in the field. The
plaintiff has also not filed any application in this regard. The onus to
prove that Darbara Singh was not in sound disposing mind in the
year 1987 was as the plaintiff. They could have filed an application
in this regard before the court. Sh.Darbara Singh himself had
appeared in the court to give his standard thumb impression on 10th
May, 1989. On that day, the court should have either questioned
him or should have referred him to some medical expert. Now,
Darabar Singh is already dead.
18. It may be noted here that Smt.Jasmail Kaur, while
appearing in evidence in February, 1989, positively asserted that the
Sh.Darbara Singh was residing with her. She could get Sh.Darbara
Singh examined from the Medical expert in order to prove the case.
In 1997, when she appeared in evidence, she has stated that
Sh.Darbara Singh is residing with the defendants. This corroborates
the evidence of Sh.Sajjan Singh, who has stated that he, Jagmail
Singh, Dhana Singh and Darbara Singh are residing jointly with
Surjit Singh.
19. The First Appellate Court has also erred while
observing that the judgment and decree passed on 9th February,
1987, on the basis of family settlement is not sustainable in the eyes
of law because it is unregistered. By now, it is well settled that
settlement of the dispute between the family members, which is
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subsequently reduced as a memorandum, is not required to be
registered. Similarly, the decree passed on the basis of the aforesaid
family settlements are also not required to be registered. Reliance
in this regard can be placed on Kale vs. Director of Consolidation
(1976) 3 SCC 119 which was recently followed in Gurbachan
Singh vs. Angrej Kaur (2020) SCC online SC 607. The courts
lean in favour of upholding the family settlements and desist from
interfering in the same in order to maintain harmony in the family.
This has been consistent view of the Supreme Court from 1950s
onward. In Ravinder Kaur Grewal vs. Manjit Kaur (2020) 9
SCC 706, the Supreme Court also held that memorandum of familyl
settlement does not require mandatory registration.
20. The First Appellate Court has also erred in observing
that no expert evidence has been produced by the defendants and
oral evidence of the defendants weighs down when compared with
the expert evidence. It is evident that the First Appellate Court has
overlooked the fact that burden to prove that Sh.Darbara Singh was
lunatic in the year 1987 was on the plaintiff. They were required to
lead positive evidence. The evidence produced by the plaintiff is
not sufficient to prove that Sh.Darbara Singh was lunatic in the year
1987, particularly when he has been residing with his family from
1974 continuously with his family without any further treatment
from the doctor. Had he been lunatic from his birth, he could not be
convicted for committing murder. Moreover, being a convict by the
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court of law, he had sufficient exposure to the nuances of the courts.
The expert evidence is based on the opinion whereas the evidence
led by the defendants is direct evidence. The Sarpanch and member
of the Panchayat have deposed that Sh.Darbara Singh was/is not
mentally unsound. The First Appellate Court has also erred in
observing that no written compromise deed was filed in the previous
suit. In the year 1987, once the defendants themselves file the
written statement after appending their signatures and thumb
impression including Darbara Singh admitting the claim of the
plaintiff in the suit filed, there is no need of written compromise
deed. Learned counsel representing the defendants in the suit filed
in 1987 did made a statement admitting the claim of the plaintiff. In
these circumstances, there is no requirement of written compromise
as the suit was decided in accordance with Order XII Rule 6 of the
Code of Civil Procedure, 1908.
21. Now this Court proceeds to analyse the argument of the
learned counsel representing the respondent. The first argument is
that the defendants have not examined Jagmail Singh @ Ajmer
Singh. At the cost of repetition, the onus is on the plaintiff to prove
that Sh.Darbara Singh was mentally unsound.
22. The second argument is based on an undertaking given
by Jasmail Singh @ Ajit Singh in 1974. That undertaking is only a
condition of grant of parole. However, that would not debar
Sh.Darbara Singh throughout his life from entering into contract or
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signing any document. In this case, Darbara Singh conceded to the
claim of the plaintiff in the suit filed in the year 1987. In the
absence of any evidence to prove that he continues to suffer from
Schizophrenia, he could not be debarred from filing the written
statement in the court.
23. Last argument of the learned counsel is based on
Section 114 of the Indian Evidence Act, 1872. An adverse inference
can be drawn against the defendants only if it were the defendants
who were to prove that Sh.Darbara Singh is of sound mind. Rather
the burden to prove lies on the plaintiff.
24. Furthermore, although the judgment has not been
produced in additional evidence, however, it is the case of the
plaintiff (respondent herein) in the written argument filed before this
Court that Sh.Darbara Singh executed a registered will on 2nd May,
2008 as well as a sale deed on 18th October, 2012 in favour of the
defendants (the appellant herein). It rather proves that Sh.Darbara
Singh continued to live with the appellants and he always wanted to
give property to the appellants rather than bequeathing it in favour
of the Smt.Jasmail Kaur or her children.
25. Keeping in view the aforesaid facts and discussion, the
conclusion is inevitable. The judgment passed by the First
Appellate Court is set aside and that of the trial court is restored.
The Regular Second Appeal stands allowed.
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26. All the pending miscellaneous applications, if any, are
also disposed of.
19.01.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:008248
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