Delhi District Court
Surender Singh vs The State on 18 October, 2024
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE-02, SOUTH-WEST, DWARKA COURTS,
NEW DELHI
GP No. : 12/22
CNR No. : DLSW010044232022
IN THE MATTER OF:
Surender Singh
S/o Late Sh Vijay Singh
R/o Near H.B.M School
RZ-3, Gopal Nagar Phase -2
Najafgarh, New Delhi - 110043 ... Petitioner
Vs
The State
(Govt of NCT of Delhi)
/General Public ... Respondent
Date of institution of the petition 07.05.2022
Date of reserving judgment 18.10.2024
Date of pronouncement of judgment 18.10.2024
JUDGMENT
1. The present petition has been filed by the petitioner under Order 32 CPC read with Section 53 of the Mental Health Act 1987 for appointment of a guardian for Sh. Manjit Singh (hereinafter referred as "the subject person".)
2. Briefly stated, it is averred that the petitioner is the elder brother of subject person, who is aged about 42 years who suffers from schizophrenia which has left him 60 % disabled.
3. It is further averred that the father of the petitioner and the subject person, namely, Sh. Vijay Singh was a teacher in a government school in Haryana and after his retirement, he was GP No. 12/2022 Surender Singh vs. The State page 1/7 Digitally signed by RICHA RICHA GUSAIN GUSAIN SOLANKI SOLANKI Date: 2024.10.18 16:03:53 +0530 getting pension. It is stated that after his death on 07.07.2000, his widow Smt Mohinder Kaur started getting pension.
4. It is further averred that Smt Mohinder Kaur also passed away on 06.02.2017 and after her death, the subject person has been residing with the petitioner.
5. It is stated that after the demise of Sh Vijay Singh and Smt Mohinder Kaur, the subject person is entitled to the family pension. I
6. t is stated that the petitioner went to the pension disbursing authority office at the Principal Account General (A & E) Haryana, Lekha Bhawan Plot No. 4 & 5 Sector 33B, Chandigarh-160020 for the family pension to the subject person but vide letter bearing No. Pension 7/B134/980/98-99/19- 20/4061 dated 06.02.2020, he was informed that a guardian certificate is required for getting pension.
7. It is further stated that the petitioner has limited resources to care of himself and his family, being an employee of IGI Airport. It is further stated that the petitioner does not have adequate resources to take care and support the subject person who needs regular medicine, consultation with the doctor and has other personal needs.
8. Hence, it is prayed that a guardianship certificate be issued to the petitioner as guardian of the subject person for the purpose of operating or opening his bank accounts.
9. Notice was issued to the respondent and citations were published in newspapers i.e. 'The Statesman' an English daily and ' Veer Arjun' a Hindi daily on 13.07.2022. The notice was also displayed at the notice board of this Court. No objections were received to the petition from any quarter.
GP No. 12/2022 Surender Singh vs. The State page 2/7
10. Notice was also issued to Institute of Human Behaviour and Allied Sciences (IHBAS), pursuant to which, the Director of IHBAS filed a report stating that the subject person suffered from Paranoid Schizophrenia, continuous course, and as on the date of examination, he was capable of taking care of personal needs but incapable of managing property/ finances.
11. Pursuant to service of notice upon the office of AG (A & E) Haryana, Mr Dinesh Kumar DEO from the office of AG( A & E) Haryana has appeared and placed on record a copy of the letter dated 06.02.2020, as described in the petition.0% of permanent disability in relation to his brain.
12. In order to prove his case, the petitioner entered the witness box as PW-1 and tendered his evidence by way of an affidavit Ex.PW1/1. He further relied on the following documents:
S.N Particulars of documents Documents
o. marked as
1. Aadhar card of deponent Ex PW1/A
(OSR)
2. Aadhar card of Manjit Singh Ex PW1/B
(OSR)
3. New Disability certificated issued by Ex PW1/C
Safdarjung Hospital
4. Death certificate of parents of deponent, Ex PW1/D(OSR) namely Vijay Singh and online and Ex PW1/E computer generated death certificate of Smt Mohinder kaur
5. Letter dated 06.02.2020 issued by the Ex PW1/F disbursing authority
13. It is pertinent to note herein that earlier the petitioner had filed disability certificate of the subject person issued by Safdarjung Hospital showing that he was suffering from GP No. 12/2022 Surender Singh vs. The State page 3/7 schizophrenia with 60% disability but as per the latest disability certificate issued by Safdarjung Hospital, the subject person now suffers from 70% disability.
14. Considered.
15. Although the petition has been filed under the old Mental Health Act, I do not deem it just to dismiss on that ground alone. The subject person will be governed under the Rights of Persons with Disability Act, 2016.
16. As per the provisions enshrined under Section 14 of the Rights of Persons with Disability Act, 2016:-
"14. Provision for guardianship.--(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government:
Provided that the District Court or the designated authority, as the case may be, may grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly, in which case, the decision regarding the support to be provided shall be reviewed by the Court or the designated authority, as the case may be, to determine the nature and manner of support to be provided..."
17. Further, as per Rule 7 of Delhi Rights of Persons with Disabilities Rules 2018 :-
"Limited Guardianship.-(1) A District Court on its own, or on an application filed by the person with disability,or through a blood relative or filed on behalf of the person with disability through a Government organization or a Registered organization under whose care the person with disability is residing, shall grant the support of a limited guardian to take a legally binding decision on behalf of the person with disability in consultation with such person.
(2) The District Court, before granting the support of a GP No. 12/2022 Surender Singh vs. The State page 4/7 limited guardian for the person with disability shall satisfy itself that such a person is not in a position to take legally binding decision on one's own.
(3) The District Court shall hold hearings to determine the legal capacity of the person with disabilities; During such hearings, the person with disabilities shall be present. If required, expert opinion shall be sought by the court to determine the legal capacity of the person with disabilities.
(4) The validity period for limited guardianship as appointed under sub-rule (1) shall be initially for a period of three years which can be further extended by the District Court as the case may be:
Provided that the District Court shall follow the same procedure while extending the validity of the limited guardianship as followed while granting the initial guardianship.
(5) The District Court shall take a decision preferably within a period of one month from the date of receipt of an application regarding grant of limited guardianship or from the date of coming to its notice of the need of such limited guardianship: Provided that the consent of the person to act as a limited guardian shall also be obtained before grant of such limited guardianship:
Provided that the District Court shall follow the same procedure while extending the validity of the limited guardianship as followed while granting the initial guardianship.
(6) While granting the support of such limited guardianship, the Court shall consider a suitable person to be appointed as a limited guardian in the following preference of merit, namely:-
(a) The parents or adult children of the person with disability;
(b) Immediate brother or sister;
(c) Other Blood relatives or care givers or prominent personality of the locality; and
(d) In case the family of the person with disability is not known, Superintendent of the Government Institution or In charge of the Registered organization under whose care the person with disability is residing, may be considered. (7) Only those individuals who are over the age of 18 years and who have not been previously convicted of any cognizable offence as defined in the Code of Criminal Procedure, 1973 (1 of 1974) shall be appointed as a limited Guardian.
(8) The limited guardian appointed under sub-rule (1) shall consult the person with disability in all matters before taking any legally binding decisions on behalf of the person with disability.
(9) The appointed limited guardian shall ensure that the GP No. 12/2022 Surender Singh vs. The State page 5/7 legally binding decisions taken on behalf of the person with disability are in the interest of the person with disability.he validity of the limited guardianship as followed while granting the initial guardianship."
18. As per the medical report of the IHBAS dated 19.10.222, the subject person is a patient of Paranoid Schizophrenia, continuous course and he is capable to taking care of personal needs but incapable of managing property/finances. Further as per the disability certificate Ex PW1/C, the subject person suffers from 70% permanent disability in relation to his brain.
19. Thus, on the strength of the disability certificate issued by the Safdarjung Hospital and IHBAS Hospital, there is no iota of doubt that the subject person cannot take care of his finances and property and he is incapable of taking legally binding decisions on his own.
20. The object of the Right of the Persons with Disabilities Act, 2016, is to protect and provide care to the persons under disability and therefore, the present petition deserves to be allowed.
21. On the above parameters, this Court observes that the petitioner is brother of the subject person and taking care of the subject person, has a natural bond of love, affection and due care towards the subject person. There is no reason to presume that the petitioner has any interest adverse to the subject person. The State has not reported that the petitioner was previously convicted a cognizable offence. The parents of the subject person have already passed. Thus, the petitioner would be suitable person in terms of Rule 7(6) of Delhi Rights of Persons with Disabilities Rules 2018.
22. Accordingly, the present petition is hereby allowed and GP No. 12/2022 Surender Singh vs. The State page 6/7 the petitioner is appointed the limited guardian of the subject person for a period of three years for providing him total support in terms of the proviso appended to Section 14 (1) of the Act. After the expiry of three years, the guardian may apply for extension of the guardianship in terms of Rule 7(4) of Delhi Rights of Persons with Disabilities Rules 2018.
23. The limited guardianship rights in respect of the property of Sh. Manjit Singh be granted to the petitioner with regard to opening of the bank account, receiving pension and signing any necessary document on behalf of the subject person.
24. However, it is made clear that the petitioner, being the legal guardian and manager of the properties of the subject person shall not be entitled to alienate the assets whether movable or immovable of the subject person without the prior permission of this Court.
25. Let guardianship certificate be issued in favour of the petitioner.
26. The petition is disposed of in above terms.
27. File be consigned to record room after due compliance.
Pronounced in the open (Richa Gusain Solanki) Court on 18th October 2024 District Judge-02 (SW) Dwarka Courts, New Delhi GP No. 12/2022 Surender Singh vs. The State page 7/7