Section 12 : What is a sound mind for the purposes of contracting
2023 SCMR 1339 SUPREME-COURT
MUHAMMAD MUNIR VS UMAR HAYAT
Ss. 11 & 12—Unsoundness of mind—Scope—Permanent paralytic affection, though it somewhat saps the physical energy of the sufferer, does not necessarily impairs his mental power to such an extent to render him incapable of transacting business.
2023 SCMR 1339 SUPREME-COURT
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.
2016 PLD 199 SUPREME-COURT
PAKISTAN RAILWAYS through AGM(Trafic), Lahore VS FOUR BROTHERS INTERNATIONAL (PVT) LTD
2(e) & Chap. II [Ss.10 to 30-C]—Agreement, rescission of—Agreement between the parties had the status of a statute and unless it was shown that any term of the agreement was violative of the law, it could not be rescinded by a party.
2013 SCMR 59 SUPREME-COURT
HAQ NAWAZ VS Mirza WASEEM BAIG
Ss. 32, 33 & 87—Contract Act (IX of 1872), Ss. 11 & 12—Civil Procedure Code (V of 1908), O.XXXII, Rr. 8, 9, 10 & 11—Purported purchase of land from a person of unsound mind—Effect—General power of attorney, contents of—Proof—Scope—Purported seller (respondent) through his general attorney allegedly sold land via oral sale deed to the purported purchasers (appellants)—Grandmother and a friend of purported seller filed a suit for declaration and possession on his behalf contending therein that sale made by general attorney of purported seller in favour of purported purchasers was a nullity as purported seller was an insane person and general power of attorney had been fabricated through forgery and fraud—Trial Court dismissed the suit holding that insanity of purported seller was not proved and that power of attorney was duly registered, therefore, it was a valid document—Appellate Court set aside judgment and decree of Trial Court and suit was decreed in favour of purported seller on the basis that neither original power of attorney nor its certified copy was produced in evidence—Contentions of purported purchasers were that there was no dispute between the parties regarding execution of power of attorney, and that original suit was filed by grandmother of purported seller and during pendency of said suit, she died, after which a friend was appointed as next friend of purported seller in violation of Order XXXII, Rules, 8, 9, 10 & 11, C.P.C.—Validity—Four doctors appeared in the witness box and all of them substantiated contents of medical certificate whereby purported seller had been declared to be of unsound mind—Will executed by grandfather of purported seller, prior to the execution of power of attorney in question, was produced in court wherein purported seller was mentioned as insane—Additionally a sale deed from the past was exhibited in evidence wherein it was clearly mentioned that purported seller was of unsound mind—Record established beyond doubt that purported seller was of unsound mind—Under the Contract Act, 1872, purported seller was not competent to execute the power of attorney in respect of the subject property as he was insane—Purported seller was proceeded ex parte and no efforts were made by the purported purchasers to site him as their own witness to prove the power of attorney—Neither original power of attorney nor its certified copy was presented in evidence by the purported purchasers—No efforts were made to examine the Registrar or any other relevant person from the Registration Department to ascertain the genuineness of the power of attorney—Purported purchasers failed to prove the contents of the power of attorney—Judgment of Trial Court clearly mentioned that after death of grandmother of purported seller, she was substituted by a friend, who had made an application for his appointment as next friend—Purported purchasers had not raised any objection of competence of said friend as next friend of purported seller either before Trial Court or High Court, therefore, they could not agitate the same issue before the Supreme Court—Appeal was dismissed in circumstances.
2010 PLD 295 KARACHI-HIGH-COURT-SINDH
MUHAMMAD RAFIQUE VS Dr. QADIR ALI KHAN
12—Specific performance of agreement to sell—Rescission of agreement—Plaintiff filed suit before expiry of time fixed for completing the transaction as the defendant refused to sell the suit property and sought cancellation of sale agreement—Validity—Contract could come to an end without notice where buyer himself had refused to complete the transaction—Notice for termination of contract was dispatched to plaintiff four days after expiry of contract period without granting any time to plaintiff to complete the transaction—Neither the suit was filed prematurely nor there was failure on the part of plaintiff to complete the sale transaction, on the contrary it was the defendant who prior to expiry of date of agreement had second thought on account of family pressure and refused to perform his part of obligation—High Court directed the defendant to transfer the suit property in the name of plaintiff—Suit was decreed in circumstances.
2009 CLC 883 KARACHI-HIGH-COURT-SINDH
MUHAMMAD NAVEED VS TEEJAYS EXCLUSIVE (PVT.) LTD. through Managing Director
Ss. 12 & 55—Immovable property, sale of, agreement for—Time as essence of such contract—Determining factors stated.
1994 MLD 747 LAHORE-HIGH-COURT-LAHORE
SULEMAN VS KALA
Contract Act 1872 —-S.12—Courts below without examining entire oral as well as documentary evidence on record had concluded- that vendor was of unsound mind since his childhood, and thus was not competent to enter into contract—Findings of Courts below were based on fact that after one month of sale of property in dispute, vendor was admitted to mental hospital and Board of Doctors after examining him had given their opinion’ that he was mentally defective and unable to look after himself—If a person was found to` be of unsound mind, it would not necessarily follow that he was also of unsound mind one month earlier—Concurrent finding of fact arrived at after ignoring evidence on record, could not sustain.
1963 PLD 253 DHAKA-HIGH-COURT
ROHINI KUMAR DEB NATH VS BHAGABAN CHANDRA DEB NATH AND OTHERS
Contract Act 1872 S. 12-Insanity-Burden of proof on party putting forward plea of insanity, normal presumption being of sanity.