MUHAMMAD MUNIR vs UMAR HAYAT Ss — 2023 SCMR 1339 SUPREME-COURT

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MUHAMMAD MUNIR VS UMAR HAYAT Ss. 11 & 12---Unsoundness of mind---Proof---Registered sale deed and exchange deed executed by plaintiffs' father challenged on the plea that their father had been suffering from paralysis for a long time; his hands and other limbs were affected with tremors and trembles; he could not relieve himself of his natural urges, and even to talk he used to express himself in gestures; and because of his illness he was very weak and could not walk around---Validity---Crucial point of determination in case a plea of insanity or unsoundness of mind is taken is the time of execution of the contract---In the present case, the disputed documents were registered in 1996 while plaintiffs' father (executant) died in 1998 and thus the plaintiffs were to clearly state when their father had an attack of paralysis; did this occur before the documents were executed or after it?---This was a material fact that ought to have been disclosed in the plaint, but was conspicuously omitted, and since the plaintiffs could not go beyond the scope of their pleadings, they could not even be allowed to put in any statement or material to rectify the omission during the course of evidence, and as such, it would be fair to hold that the plaintiffs had failed to discharge their burden of pleadings, and tumbled at the first stage of the trial of their claim---Best evidence of the father's mental disorder could have been the medical attendant (hakeem) who treated him at the relevant time---However said physician (hakeem) was not examined, nor was any explanation furnished why he was not presented---One of the plaintiffs, who was also son of the executant, stated in his examination-in-chief that his father was ill and suffering from paralysis; but he did not say that his father was mentally challenged---However, during cross-examinations he said that his father had tremor in his body before his death, and that in the year 1995-1996, his father had sold his other land to another person---Such statement proved that the father (executant), though ill, was of sound mind and able to look after his own affairs at the time of registration of the disputed sale deed and exchange deed---Burden of proving their father's unsoundness in the first place was on the plaintiffs and when they failed to do so, the Court could not cure that infirmity by reading the statement of the defendants' witness, such as the lambardar who had verified the father's thumb impression on the disputed documents---In the ordinary course of life, the said witness (lambardar) was not supposed to have any information about the father's health and the details of his medication---Contents of the disputed documents and of the statement of the witnesses, particularly of the Sub-Registrar did not support the inference, drawn by the High Court, that the father did not understand the value of the property he was selling or of which he was exchanging---Even if it was accepted that the father had paralysis and tremors, it cannot be said that the father did not comprehend the nature and effect of the disputed documents at the time of their writing and registration---Suits for declaration filed by the plaintiffs were rightly dismissed by the Trial Court and the First Appellate Court---Appeals were allowed and impugned judgments and decrees of High Court were set-aside.

MUHAMMAD MUNIR vs UMAR HAYAT Ss — 2023 SCMR 1339 SUPREME-COURT

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