H.M. Muhammad Ibrahim vs M.R. Abdul Hafeez Sahib

Satyanarayana Rao, J.—The only question that arises for consideration in this appeal is whether the District Judge of West Tanjore had or

had not jurisdiction to entertain an application u/s 62, Lunacy Act for directing a judicial inquisition regarding the lunacy of an idiot, Muhammad

Ismail by name, aged 22 on the date of the petition. The petition was dismissed in limine by the District Judge on the ground that he had no

jurisdiction to entertain it and that it would be open to the petitioner to renew the application if and when the idiot returned to the jurisdiction of that

Court. According to the learned Judge, the alleged idiot was a permanent resident in Mysore State and therefore, he had no jurisdiction to direct a

judicial inquisition regarding the lunacy of the idiot. This order of the learned District Judge was confirmed on appeal by Horwill J. The learned

Judge was also of the same opinion as the learned District Judge for the reason that, as the alleged lunatic was living for three years with the

respondent who was a permanent resident of Mysore State it followed that the alleged lunatic also was a permanent resident of Mysore State and

that, therefore, he was not subject to the jurisdiction of the District Court of West Tanjore.

The petition u/s 62, Lunacy Act, was filed by the father of the alleged lunatic and impleaded as party to that petition the respondent who was

appointed the property guardian for sch. A properties under a settlement deed of May 1936 executed by one Jainambi maternal grandmother of

the alleged lunatic whereunder the property was settled upon the alleged lunatic. Besides this Sch. A property Jainambi left also sch. B property to

which the alleged lunatic succeeded as her heir. The respondent according to the allegations in the petition was in possession and management of

Sch. a property and was also attempting to alienate Sch. B properties after kidnapping the lunatic from Tanjore, sometime in January 1944 and

removing him to Mysore State where the respondent was residing. The petitioner seems to have taken the matter to the police to recover the

custody of the boy but was unsuccessful. Notwithstanding the request of the petitioner the respondent refused to send back the boy to his father

and as the properties were being mismanaged, the father filed the application u/s 62, Lunacy Act, for removing the respondent from the

guardianship in respect of Sch. A properties, for appointing the petitioner as the guardian of the person and property of the alleged lunatic and also

for recovery of the custody of the idiot.

u/s 3 (5), Lunacy Act, the word ""lunatic"" is defined as meaning an idiot or a person of unsound mind. Therefore for purposes of the Act an idiot

is also a lunatic. The jurisdiction of the Courts to entertain proceedings for judicial inquisition as to lunacy is defined in Part III of the Act. Chapter

IV relates to proceedings in lunacy in presidency towns and Chap. IV relates to proceedings in lunacy outside the presidency towns. In the

presidency towns of Calcutta, Madras and Bombay, the High Courts alone have jurisdiction: vide Section 37 of the Act. u/s 38 of the Act, the

High Court has jurisdiction over persons who are subject to the jurisdiction of the Court and who are alleged to be lunatics and to entertain an

application for directing an inquisition as to the alleged lunacy of the person concerned. Section 43 of the Act seems to contemplate that even if a

person is outside the jurisdiction of the High Court and is within the jurisdiction of the District Court, if otherwise the person was subject to the

jurisdiction of the High Court the High Court alone would have jurisdiction to entertain proceedings but power is given under that section to direct

inquisition to be made by the District Court within whose local jurisdiction the alleged lunatic may be residing. The jurisdiction outside the

presidency towns is conferred upon District Courts and it depends upon the residence of the alleged lunatic. If the person is residing within the

jurisdiction of the District Court that District Court would have jurisdiction but this jurisdiction is subject, however, to the exclusive jurisdiction of

the High Court if the said person happens to be also subject to the jurisdiction of the High Court. This question was considered by the Calcutta

High Court in Anilabala Chowdhurani Vs. Dhirendra Nath Saha, , in which the question was elaborately examined by that Court and the

conclusion reached was that if a person was subject to the jurisdiction of the High Court, the District Court in whose jurisdiction the alleged lunatic

was for the time being residing would have no jurisdiction to entertain proceedings notwithstanding the personal residence of the alleged lunatic.

In this case we do not have the complication of the conflict of jurisdiction between the High Court and that of the District Court. The only

question is whether on the allegations in the affidavit filed in support of the petition the District Court of Tanjore has jurisdiction to entertain the

application. The word ""residence"" is contained not only in Section 62 of the Act but also in other acts. In the Civil P. C., Section 20, Clause (b) the

place of the residence of the defendant is made also the basis of the jurisdiction of the Court to entertain the suit among other grounds but there is

an explanation added to that section which indicates that a person may have at the same time more than one residence. In Clause 12, Letters

Patent the word ""dwell"" occurs and is given the same meaning as ""residence"" occurring in the Civil Procedure Code. A person may have more than

one residence. He may have a permanent residence at a place where he has got a fixed abode and where his family ordinarily resides, and he may

for the purpose of his business or for other reasons go to another place and personally reside for a time. Even such a place where he personally

resides may be taken as another residence. In Srinivasamurthi v. Venkatavarada Iyengar, 31 Mad. 267 : 38 I. A. 129 the Privy Council had to

construe the word ""dwell"" occurring in Clause 12, Letters Patent. In that case a person who was a resident of Mysore and was domiciled in that

state some months previous to the institution of the suit left his house and hired a house at Madras where he lived with his wife and family and

apprenticed himself for a year to a vakil of the High Court with a view to getting himself enrolled as a vakil of this Court. It was held that such a

living constituted ''dwelling'' within the meaning of Clause 12, Letters Patent to give jurisdiction to the High Court to entertain a suit against such a

person. Dealing with this question their Lordships of the Judicial Committee observed at p. 267 as follows :

The question of jurisdiction is too plain for argument. Both Courts held that the cause of action arose partly within the jurisdiction of the High

Court, and although the Judge of first instance thought himself bound by a decision which had really no application to the case to hold (contrary to

his own opinion) that the defendant was not ""dwelling"" within the jurisdiction, the High Court not unnaturally thought that inasmuch as he had taken

up his abode with his wife and family in a hired house in Madras, meaning to remain there several months, and wag actually living there when the

suit was instituted, he could not be heard to say that he was not ""dwelling"" within the jurisdiction of the High Court.

The Calcutta High Court had to consider an identical question under the Lunacy Act, Section 62, in Radharani Debi Vs. Nibaran Chandra

Mukerji, . In that case the alleged lunatic was residing in the district of Birbhum but was taken to the mental hospital at Ranchi for treatment.

Ranchi was outside the jurisdiction of Birbhum District Court and the contention that was raised was that Birbhum District Court had no

jurisdiction to deal with an application for judicial inquisition as to the lunacy of the person concerned for the reason that he was at the moment

living in the mental hospital at Ranchi. The objection was overruled and it was pointed out that the alleged lunatic had properties in the district of

Birbhum, had a dwelling and was a permanent resident of that place. But the mere fact that he had another residence at Ranchi at the time, would

not take away the jurisdiction of Birbhum District Court to entertain proceedings. A person according to the learned Judges may have more than

one residence and proceedings u/s 62, Lunacy Act could be entertained by any of the Courts in whose jurisdiction the person has his residence. In

Anilabala Chowdhurani Vs. Dhirendra Nath Saha, , already referred to, Mookerjee, Ag. C. J., who delivered the judgment of the Court also

considered the legal import of the word ""reside"" used in the Lunacy Act and it was pointed out by the learned Judge that a man may have a legal

residence as well as a personal residence. The legal residence would be the place where the man has a permanent habitation and where his family

ordinarily resides while the personal habitation is a place where the person lives for some purposes temporarily. Both the Courts under whose

jurisdiction a man has a personal residence and a legal residence have jurisdiction to entertain proceedings under the Lunacy Act but in that case as

there was a conflict of jurisdiction between the District Court and the High Court by reason of the provisions of the Lunacy Act in Sections 37, 38

and 43 the jurisdiction of the High Court prevailed over the jurisdiction of the District Court. There are similar observations in the decision in

Kamala Bala Debi and Another Vs. Emperor, .

In view of the interpretation of the word ""residing"" occurring in Section 62 placed by the decisions above referred to, it follows that in the

present case the alleged lunatic has his permanent residence where his parental home exists, that is, in Tanjore District and where his family

permanently resides. The removal of the alleged lunatic by the respondent in January 1944, whether by legal means or otherwise to the Mysore

State and the residence of the alleged lunatic there might constitute temporary residence. As was said in Anilabala Chowdhurani Vs. Dhirendra

Nath Saha, , mere bodily presence would be sufficient to constitute residence even though the alleged lunatic is incapable of exercising any

intelligence in the matter; but that would not put an end to the legal residence which the alleged lunatic had already possessed in Tanjore District

and the District Court, Tanjore would not cease to have jurisdiction over the matter.

Under the Act, if the lunacy of the person is disputed, there should be first a public judicial inquisition u/s 62 and the subsequent sections of the

Act and then if the Court comes to the conclusion after such inquisition that a proper case is made out it would appoint a personal and property

guardian for the lunatic. This procedure is laid down in Section 67 and the subsequent sections of the Act. The District Judge, therefore, was not

justified in our opinion, in dismissing the application on the ground that he had no jurisdiction to entertain the proceedings under the Act. We are

clearly of opinion that he had jurisdiction to entertain the application and he should have proceeded with the enquiry under the Act. We, therefore,

allow the appeal and set aside the order of this Court in C. M. A. No. 58 of 1947 and the order of the learned District Judge in C. P. No. 98 of

1946 and remand the application for disposal according to law in the light of the observations contained in this judgment. The appellant is entitled

to his costs in this Court in the Letters'' Patent appeal and C. M. A. from the respondent and costs of the application will be provided for by the

learned District Judge in the final order on the application.