District court declares a person as mentall unsound after inquisition and appoints a an appropriate guardian under Guardianship and Wards Act.
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CHAPTER - VI JUDICIAL INQUISITION REGADING ALLEGED MENTALLY ILL PERSION POSSESSING PROPERTY, CUSTODY OF HIS PERSION AND MANAGEMENT OF HIS PROPERTY APPLICATION FOR JUDICIAL INQUISITION Where an alleged mentally ill person is possessed of property, an application for holding an inquisition into the mental condition of such person may be made either - by any of his relatives, or by a public curator appointed under the Indian Succession Act, 1925 (39 of 1925) or by the Advocate-General of the State in which the alleged mentally ill person resides, or where the property of the alleged mentally ill person comprises land or interest in land, or where the property or part thereof is of such a nature as can lawfully be entrusted for management to a Court of Wards established under any law for the time being in force in the State, by the Collector of the District in which such land is situate, to the District Court within the local limits of whose jurisdiction the alleged mentally ill person resides. On receipt of an application under sub-section (1), the District Court shall, by personal service or by such other mode of service as it may deem fit, serve a notice on the alleged mentally ill person to attend at such place and at such time as may be specified in the notice or shall, in like manner, serve a notice on the person having the custody of the alleged mentally person to produce such person at the said place and at the said time, for being examined by the District Court or by any other person from whom the District Court may call for a report concerning the mentally ill person: Provided that, if the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may cause her to be examined by issuing a commission as provided in the Code of Civil Procedure, 1908 ( 5 of 1908). A copy of the notice under sub-section (2) shall also be served upon the applicant and upon any relative of the alleged mentally ill person or other person who, in the opinion of the District Court, shall have notice of judicial inquisition to be held by it. For the purpose of holding the inquisition applied for, the District Court may appoint two or more persons to act as assessors. COMMENTS JURISDICTION - The Lunacy (Supreme Courts) Act, 1958, gives power to those Courts to direct an inquiry as to "any person subject to the jurisdiction of the Court". The preamble of the Lunacy (Districts Courts) Act of the same year states that it is expedient to make better provisions for the case of the states of lunatics "not subject to the jurisdiction of the Supreme Courts of adJudicature". In 1981 the Allahabad high court decided that, under its own letters patent, it had no original jurisdiction in respect of the persons and estates of lunatics who were natives of India. In the course of that case, the Court ascertained from the Registrar of the original side of the Calcutta High Court that at that date its powers in the matters of lunacy as the successor and inheritor of the powers of the old Supreme Court were, as regards natives of India, only exercised within the limits of the town of Calcutta itself, and that in other respects the procedure directed by the Lunacy (District Court) Act, 1958,was followed in Lower Bengal. The Court expressed the view that this practice was correct. The Lunacy Act, 19121 repealed both the Acts of 1958, but made no alteration in the law with regard to the matter now under consideration. For a person to come under that chapter he must be not subject to the jurisdiction of a High Court, and must be resident within the jurisdiction of a District Court. The question of jurisdiction was considered in Anila Bala Chowdhurani V. Dhirendra Nath Saha2 where it was held that the jurisdiction of the Pabna District Court was ousted because the alleged lunatic (an Indian) resided both at Pabna and at Calcutta, but it is clear from that case that, but for his residence at Calcutta, the Pabna District Court would have had jurisdiction and the original side of the Calcutta High Court would not. In in re Taruchandra Ghosh,3 the Court held that, under Cl. 17 of the Charter, the Court had power to appoint a guardian of an Indian infant resident outside the original jurisdiction. The order was made ex parte on the father's application, it being stated there was no opposition.The attention of the Court was not drawn to 13 Geo. 3, c. 63, nor to the cases referred to above. Moreover, the language of Cl.25 of the Charter of 1774 as regards infants, differs from its language as regards lunatics. The original side of the Calcutta High Court has no jurisdiction to direct an inquisition or appoint a guardian of person or property in the case of an Indian not resident in Calcutta4. WHAT HAS TO BE FOUND UNDER THE ACT - What has to be found under the Act is that the person is of unsound mind and that the unsoundness of mind is such as to make him incapable of managing his affairs. A person who is incapable of managing his affairs is not necessarily of unsound mind and a person of unsound mind may not be incapable of managing his affairs. The Court must hold that both unsoundness of mind and incapacity to manage his affairs are present and that the latter is due to the former5. DUTY OF THE COURT - It has, at the very outset to be realized that an order declaring a person to be of unsound mind and incapable on that account of managing his affairs is an order of a very serious character. It has the effect of disqualifying him from using his own property in the manner he desires and placing a drastic check on his rights and privileges which as a normal individual, he would be entitled to enjoy. In Teka Devi V. Gopal Das6, it was observed that: "It is, therefore, the duty of the Court before proceeding further, the determine judicially whether the person alleged to be incapable of managing himself or his affairs, is really a lunatic in this sense. Secondly, it must be remembered that this finding has got very far-reaching consequences and must be given after very great care and deliberation. It may have the immediate effect of putting a human being Act 4 of 1912 repealed by Act 14 of 1987. I.L.R. 48 of Cal.577 I.L.R. 57 Cal 535. In the matter of Phanindra Chandra Set,35 C.W.N. 1045 at pp 1046-47:A.I.R. 1932 Cal.91. Sesha Ammal V.Venkatanarasimha Bhattachariar 67 M.L.J 797 at p.798; A.I.R. 1935 Mad.91 A.I.R. 1930 Lah.209. Being under restraint. It might deprive him for a time, or forever of the possession and management of his property. It will be prima facie evidence of his lunacy, and may be read in proof of it in other proceedings. The Legislature has, therefore, laid down an elaborate procedure for conducting an enquiry into this matter, and this procedure must be strictly followed. The Court cannot and ought not to deal lightheartedely with this important question, and it should not consider itself relieved of its responsibility by the mere circumstance that some or all the relatives of the person concerned have declared that he is lunatic". The above is undoubtedly an accurate statement of the policy underlying the precaution enjoined by the Legislature in the various provisions of the Act as a preliminary condition to the final exercise of jurisdiction by the Court in declaring a person as a lunatic1. The smallest attention to the words of the Indian Lunacy Act2 whether they be the words of Sec. 62 or the words of Sec. 38 shows this that the Legislature appreciates that to have an inquisition into the state of health, the state of mind, the state of property and general capacity of a person is a thing which affects that person so prejudicially that it ought not to be taken except it be first ordered upon a careful consideration of evidence3. It was said in a case reported in Muhammad Yaqub V. Nazir Ahmad4: "It is true that nothing is contained in the Act itself to direct or guide a Judge as to how he shall consider applications for an inquisition and probably no rules exist for dealing with the matter; but ordinary commonsense would appear to dictate to a tribunal before whom such an application comes that care should be exercised in a painful matter of this kind, namely, an enquiry into a man's or woman's state of mind; specially in the case of people in conformable circumstances who merely wish to lead a quiet life care should be exercised that they are not suddenly flung without sufficient reason into an elaborate inquisition which after all is nothing more or less than a trial involving sometimes the history of a person's life back for many years, medical evidence, and all sorts of family witnesses". INQUISITION - The Lunacy Act does not contain any procedure or permit any procedure by which a man today can be declared to be a lunatic ten years ago in the past5. JURISDICTION OF THE LUNACY COURT - The jurisdiction of the Lunacy Court depends on normal residence of the alleged lunatic and not on his temporary residence except in the cases of the High Courts of Calcutta, Madras and Bombay where different rules are applicable under the Charters and Letter Patent. The principles of residence are clearly laid down by a Bench of three learned Judges consisting of Sir Ashutosh Mookerjee, Acting Chief Justice, and Fletcher and Richardson, JJ. In Anila Bala Choudhurani V. Dhirendra Natha Saha1. That decision is an authority on the proposition that Sec. 38 of the Lunacy Act does not define the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial inquisition as to lunacy. But the proceedings are directed primarily against the person and only secondarily against his property. Such authority over the person may, unless otherwise directed by statute, be ordinarily exercised in the case of residents within the local limits of the jurisdiction of the Court. No doubt it may also be exercised over non-residents, if there is statutory provision to that effect. The third proposition laid down by this decision is that before a District Court can institute inquisition of a person possessed of property and alleged to be a lunatic it must be established not merely that such person is residing within the jurisdiction of that Court but also that he is not subject to the jurisdiction of any of the High Courts mentioned in Sec. 37 of the Lunacy Act. Therefore, in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Sec. 37, the District Court has no jurisdiction under Sec. 62, even though the person may reside within the local limits of the jurisdiction of the District Court. In other words, the jurisdiction of the High Court and District Court are not concurrent, but the jurisdiction of the High Court excludes that of the District Court; although if the alleged lunatic resides in two districts, the jurisdiction of the two Courts are concurrent and not mutually exclusive2. PROOF OF INSANITY- The question of insanity requires a most careful examination and it is difficult to think that bare assertion by witnesses unsupported by any details of the cause, the course and the treatment of the malady ought to be accepted as satisfactory proof3. NOTICE - DIRECTING AN INQUISITION - The notice contemplated by Sec. 40 is a notice to be drawn up after there has been an order directing an inquisition. It is notice of such order and of the time and place at which the inquisition is to be held. It is notice of the petition. The notice prescribed is a notice that the Court has determined to hold an inquisition. So far as the alleged lunatic concerned, it is a most important notice. It is a notice which tells him that he is in such a serious position that Court has determined to enquire into his state of mind and that his liberty and his right to manage his own affairs is now in peril by virtue of a considered judgement of a District Judge. There is nothing in the Lunacy Act about general notices. There is a definite provision in the Lunacy Act for notice to he lunatics and to such relatives or other persons as the District Judge may think it desirable to give notice to. Under the Guardians and Wards Act the provision for notice to the minor is a provision about general notice, that is to say, the notice has to be affixed in the Court-house and a copy has to be affixed to the permanent place of residence of the minor4. ISSUES ON WHICH FINDING SHOULD BE GIVEN BY DISTRICT COURT AFTER INQUISITION - On completion of the inquisition, the District Court shall record its findings on - whether the alleged mentally ill person is in fact mentally ill or not, and Where such person is mentally ill, whether he is incapable of taking care of himself and managing his property, or incapable of managing his property only. COMMENT This section empowers District Court to record its findings on certain issues. PROVISION FOR APPOINTING GUARDIAN OF MENTALLY ILL PERSON AND FOR MANAGER OF PROPERTY - Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of taking care of himself and of managing his property, it shall make an order for the appointment of a guarding under Sec. 53 to take care of his person and of a manager under Sec. 54 for the management of his property. Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of managing his property but capable of taking care of himself, it shall make an order under Sec.54 regarding the management of his property. Where the District Court records a finding that the alleged mentally ill person is not mentally ill, it shall dismiss the application. Where the District Court deems fit, it may appoint under sub-section (1) the same person to be the guardian and manager. COMMENT This section makes provision for appointment of guardian of mentally ill person and for manager or property. APPOINTMENT OF GUARDIAN OF MENTALLY ILL PERSON - Where the mentally ill person is incapable of taking care of himself, the District Court or, where a direction has been issued under sub-section (2) of Sec.54, the Collector of the District, may appoint any suitable person to be his guardian. In the discharge of his functions under sub-section (1), the Collector shall be subject to the supervision and control of the State Government or of any authority appoin ted by it in that behalf COMMENT This section empowers the District Court or the Collector to appoint guardian of mentally ill person. APPOINTMENT OF MANAGER FOR MANAGEMENT OF PROPERTY OF MENTALLY ILL PERSON - Where the property of the mentally ill person who is incapable of managing it is such as can be taken charge of by a Court of Wards under any law for the time being in force, the District Court shall authorise the Court of Wards to take charge of such property, and thereupon notwithstanding anything contained in such law, the Court of Wards shall assume the management of such property in accordance with that law. Where the property of the mentally ill person consists in whole or in part of land or of any interest in land which cannot be taken charge of by the Court of Wards, the District Court may, after obtaining the consent of the Collector of the District in which the land is situate, direct the Collector to take charge of the person and such part of the property or interest therein of the mentally ill person as cannot be taken charge of by the Court of Wards. Where the management of the property of the mentally ill person cannot be entrusted to the Court of Wards or to the Collector under sub-section (1) or sub-Section (2), as the case may be, the District Court shall appoint any suitable person to be the manager of such property