Surati Abdul Sattar vs Hajee M.D. Abdul Rahim Surati and Another

Jagannatha Shetty, J.-This appeal under S. 83 of the Indian Lunacy Act, 1912, arises out of an order made by the II Addl. District Judge, Bangalore, holding one Hazran Bee as incapable of managing her affairs and appointing the appellant as manager of her property.

The facts leading to the appeal are these:

The appellant is the brother-in-law of Hazran Bee. The respondents are her step-brothers. In 1948, her father died and in 1960, she lost her mother. Undisputedly, upto 1954, she was residing with the respondents. Thereafter she was residing with her sister in the house of the appellant.

Hazran Bee remains unmarried. In 1943, respondent-2 gifted a house property to Hazran Bee as per Ex. P-2, perhaps with a view that she must have some thing to fall back upon. Ever since then, it is said that she has been utilising its income for her personal use.

The respondents claim that they are only interested in safeguarding the interests of Hazran Bee and protecting her property. They allege that she was and is a lunatic and they had taken care of her and managed her property so long as she remained with them, but of late she has been neglected by the appellant with an evil eye on her property. With these averments, they moved the District Court Bangalore with an application under S. 63 of the Indian Lunacy Act for appointment of a guardian of her person and manager of her property.

The appellant and his wife resisted the application denying all the allegations of the respondents

The Court directed an inquisition on the allegations made by the respondents. During the course of that proceedings, Hazran Bee was sent to the Mental Hospital at Bangalore for observation by an expert doctor. She was kept there under observation from 27-3-1979 to 7-4-1979 by the Professor of Psychiatry. After the assessment of her mental condition, the professor wrote a letter to the Court stating that her mental condition was retarded to the extent of being incapable of looking after her property. The Court also secured her presence and questioned her personally, besides examining one of the respondents as PW-1 and the appellant as RW-1.

After a consideration of the entire evidence collected in the inquisition proceedings, the Court came to the conclusion that Hazran Bee cannot be called a person of unsound mind or lunatic, but, however, she enquires the assistance of others and the protection of the Court. So observing, it appointed the appellant as manager of the property of Hazran Bee with a direction that he shall submit the account of its income once in every six months, and shall not alienate the property without prior permission of the Court.

The legality of the above order is under challenge before us in this appeal.

It was urged for the appellant that when once the Court came to the conclusion that Hazran Bee was not of unsound mind, it has no jurisdiction under the Lunacy Act to appoint a manager of her property without conducting a special inquisition. It was also urged that on the material on record, the Court was not justified in observing that Hazran Bee is not capable of managing her property.

Before we consider these contentions, it may be necessary to refer briefly the law governing the matter. An order declaring a person to be of unsound mind and incapable of managing his affairs or property, is of a very serious character. The Legislature has laid down an elaborate procedure for conducting an inquiry what is statutorily termed as "the inquisition proceedings". The power to conduct that proceedings is conferred on Courts. S. 63 of the Act provides for an application for the purpose. Ss. 40. 41 and 42 of the Act lay down the procedure for conducting the inquisition. S. 65(2) provides that upon the completion of the inquisition, the Court shall determine: (i) Whether the alleged lunatic is of unsound mind and incapable of managing himself and his affairs; or (ii) whether such a lunatic is of unsound mind so as to be in capable of managing his affairs, but capable of managing himself and is not dangerous to himself or to others. These findings are required to be given after great care and circumspection.

Now we may read S. 67 (2) of the Act.

S. 67 (2): "When upon the inquisition it is specially found that the person in whom the inquisition relates is of unsound mind so as to be incapable of managing himself and is not dangerous to himself or to others, the Court may make such orders as it thinks fit for the management of the estate of the lunatic including proper provisions for the maintenance for the lunatic and of such members of his family as are dependent on him for maintenance, but it shall not be necessary to make any order as to the custody of the person of the lunatic."

S. 71 which is intended to meet all other cases reads: S. 71: (1) In all other cases the District Court shall appoint a manager of the estate of the lunatic and may appoint a guardian of his person:

Provided that a District Court may, instead of appointing a manager of the estate of a lunatic, exercise any of the powers conferred on the High Court under Ss. 56 and 59.

On a conspectus of these provisions it appears that there are no two inquisition proceedings contemplated under the Indian Lunacy Act for the purpose of recording the aforesaid two findings. The inquisition proceedings contemplated thereunder is only one and the Court upon the completion of that proceedings has to determine whether the alleged lunatic is of unsound mind and incapable of managing himself and his affairs, or whether he is of such unsound mind so as to be incapable of managing his affairs although he is capable of managing himself and is not dangerous to himself or to others. If the Court records a finding of the first category, then it shall make orders for the custody of the lunatic and also for the management of his estate. If on the other hand, the Court records a finding of the second category which we may call a special finding, then it could appoint a manager of the estate of such person. This power is located under S. 67 (2) of the Act, which also expressly provides that in such a case it shall not be necessary to make any order as to the custody of the person of the alleged lunatic.

The Lunacy Act, as we understand, was not only intended to protect the lunatic but also designed to preserve the estate of such a person. S. 3 (5) of the Act defines "Lunatic" to mean "an idiot or person of unsound mind". Some are born insane and some become insane. In both the cases, it suggests some derangement of the mind which is not to be confused with or taken as analogous to amere mental weakness or lack of intelligence. See Joshi Ram Krishan v. Rukmini Bai, AIR 1949 All. 449. The Act is not intended to protect dull-witted people, but only those who suffer from a mental disorder. See Ganga Bhavanamma v. Somaraju, AIR 1957 AP. 938.

Again, among the lunatics, there are two varieties. One type is of unsound mind wholesale, dangerous to himself and others. In such a case the Court''s inter-vention is absolutely necessary to protect the person and his property. Another type is innocent looking with surface appearance alright, but beneath the surface glitter, however, he lacks something fundamental. Such a person may not be dangerous to himself or to others, but at the same time he may be incapable of managing his affairs. When that conduct becomes sufficiently disordered to bring him into conflict with his environments, the law must take steps to protect or preserve his property. See Lalita Devi v. Natuji Joshi, AIR 1939 All. 333. The order under appeal in our opinion, squarely falls under this category and cannot, therefore, be assailed as invalid or without jurisdiction.

This takes us to the contention urged on the merits of the matter. It was urged that the material on record is insufficient to justify the finding recorded by the Court below that Hazran Bee is incapable of managing her property. Here again we find it difficult to agree with the appellant''s counsel. PW. 1 has stated that Hazran Bee remains unmarried and she is of unsound mind. In order to provide something for her maintenance he has admittedly gifted a property under Ex. P. 2. It is also admitted that she was all along under his care and protection till she came to reside with the appellant and her sister. He has also stated that the appellant has neglected Hazran Bee and was trying to alienate her property. It is on record that before he moved the District Court, he got published a news item Ex. P. 1 in the news paper ''pas Ban'' warning the public that Hazran Bee was not mentally well balanced and if any person deals with her property he would do so at his own risk.

The appellant (RW. 1) in his turn, however, has not denied that Hazran Bee was under the care and protection of the respondents till she came to reside with him. He has, however, asserted that she is in a position to look after herself and to manage her property.

In addition to this evidence, the Court has taken care to examine Hazran Bee personally. It has also ascertained the opinion of the Professor of Psychiatry. She was kept under observation by the said Professor for more than a week. He has stated that she is not in a position to look after her property.

According to learned counsel for the appellant, the medical certificate given by the Professor of Psychiatry should not be relied upon since the doctor who gave the certificate was not examined. But the counsel for the respondents submitted that the medical certificate is evidence under S. 18(3) of the Act even without the examination of the doctor. The submission of the respondent''s counsel perhaps may not be correct. S. 18(3) refers to the medical certificates which are required to be issued under Ss. 14, 15 and 16 of the Act. It may not cover the medical certificate in question in this case. The Court, however, in our opinion, may rely upon the medical opinion of an expert obtained in the inquisition proceedings. Hazran Bee was sent to the Mental Hospital by an order of the Court in the inquisition proceedings. When the said opinion was received by the Court nobody challenged its correctness and it is too late to contend that it should not be relied upon.

That apart, even if we exclude that medical certificate on the ground that the doctor who issued it was not examined, the special finding recorded by the District Court could still be sustained on the other material on record to which we have already referred to. We have no reason to discard the evidence of PW. 1 who has gifted the property to Hazran Bee for her maintenance. He has looked after. Hazran Bee for a number of years He has no axe to grind against the appellant or his wife; much less against Hazran Bee. He is not an heir to Hazran Bee. He is not getting any benefit out of this proceedings. His bonafides, therefore cannot be suspected, and his evidence deserves to be accepted. We are satisfied that his only interest in the matter is that Hazran Bee should properly be looked after and her property should not unnecessarily be alienated.

We, therefore, see no reason to interfere with the order of the Court below.

The learned counsel for the appellant next submitted that the appellant is pretty old and he would not be in a position to act as manager and in the event of this Court dismissing the appeal, the appellant''s wife who is none other than the sister of Hazran Bee may be appointed to manage the property of Hazran Bee. If the appellant is not agreeable to act as manager, we cannot certainly compel him to act against his will. As suggested, the sister of Hazran Bee who was also a party to the proceedings could take the place of the appellant. We accordingly appoint her as manager of the property of Hazran Bee. She shall submit account of the income of the property once in a year and she shall not alienate the property without prior permission of the Court.

In the result and subject to the above modification the appeal and the cross-objections are dismissed without an order as to costs.