Bombay High Court
Mr. Ashish Dhananjay Vasudev vs State Of Maharashtra Through Chief ... on 9 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:32911
36-FA-442-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.442 OF 2021
WITH
INTERIM APPLICATION NO. 13935 OF 2023
Mr. Ashish Dhananjay Vasudev
Age 49 years, Occupation Agriculture
Residing at Parnaka, Revdanda,
Taluka Alibag District Raigad ...Appellant
Versus
State Of Maharashtra
Through Chief Secretary Mantralaya,
Mumbai ...Respondent.
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Adv. D. Joshi for the Appellant.
Adv. A. R. Patil, AGP for the State.
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Coram : Sharmila U. Deshmukh, J.
Date : August 9, 2024.
ORAL JUDGMENT :
1. First Appeal has been preferred by the Appellant being aggrieved by the judgment dated 16th March 2019 dismissing Civil Misc. Application No.53 of 2018 filed by the Appellant seeking appointment as a guardian of his brother Umesh Vasudeo and for granting permission to sell, develop, repair the ward's property and to operate the pension saving bank account.
2. The facts of the case are that Civil Misc. Application No. 53 of Harish 1 of 6 36-FA-442-2021.doc 2018 was filed by the Appellant who is the brother of the ward stating that the parents of the ward had expired and their sister is married and residing at her matrimonial house. The application pleads that the ward is mentally retarded person and certificate has been issued by the Civil Surgeon, Alibag. For the day-to-day sustenance and for meeting the medical expenses of the ward a sum of Rs. 10,000/- is required per month. It was further stated that the ward is not in a position to manage the properties including operating the pension account, which pension the ward is entitled to receive by reason of his mental disability. It was further contended that the Appellant intends to repair the disputed property and his interest and acts are not in contrary to the welfare of the ward.
3. The trial court, after considering the material on record and taking into consideration the definition of mentally ill person under Section 2(1)of the Mental Health Act, 1987 held that the ward is stated to be the mentally retarded person, which the disability certificate also shows and in view of the definition of the mentally ill person, the mentally retarded person do not fall within the definition of mentally ill person under Section 2(1) of the Mental Health Act, 1987 and thus, the application is not maintainable and dismissed the application.
4. During the hearing of the proceedings, an Interim Application came to be filed under Order 41, Rule 27 of the CPC annexing certificate issued by the District Psychiatrist Civil Hospital, Alibag, Raigad certifying that the ward is suffering from moderate intellectual disability. In view of the contrary medical certificates which were produced on record, this Court vide order dated 24th June, Harish 2 of 6 36-FA-442-2021.doc 2024 directed the ward to be examined by the Dean of the District Hospital and by a District psychiatrist from the one who had earlier examined the ward and to issue an appropriate disability certificate.
5. Consequently, the ward was examined and certificate has been issued by the District Hospital Raigad which is placed on record. The disability certificate dated 31st July, 2024 certifies that the ward suffering from a hearing impairment and moderate intellectual disability and amounts to a mental disability of about 75%.
6. Considering that the ward was examined and now a fresh certificate has been issued on 31st July 2024, in normal course, the matter would have been remanded to the Trial Court to be considered afresh. However, considering the sensitive nature of the issue as the appointment is sought for guardian of ward who is suffering from a mental illness, this Court has considered the subsequent disability certificate while dealing with the Appeal.
7. The points arising for determination are :
(1) Whether the evidence on record proves that Umesh is a mentally ill person unable to take care of his person and properties.
(2) Whether the Appellant is entitled to be appointed as guardian.
(3) Whether the Appellant is entitled to deal with the property of the ward.
As to point Nos. 1 to 3 :
8. The provisions regarding the judicial inquisition about the Harish 3 of 6 36-FA-442-2021.doc mentally ill person, possessing property and the custody of the mentally ill person, the management of his property is contained in Chapter-VI of the Mental Health Act 1987. An application for judicial inquisition into mental condition of the person can be made by his relative under Section 50 of Mental Health Act, 1987. The provisions of Section 53 of the Mental Health Act enables the appointment of a suitable person to be the guardian of the mentally ill person and Section 54 provides for appointment of manager for management of the property of mentally ill person.
9. In the facts of the present case, the parents of the ward have already expired, the sister is married and the Appellant is the brother of the ward. The ward is residing with the brother and there does not appear to be any conflict of interest. The Appellant and the ward have joint interest in the ancestral properties. The Interim Application was filed under Order 41 Rule 27 of CPC for taking additional evidence of the medical prescriptions and the fresh medical certificate. During the hearing of the Interim Application, this Court directed fresh examination of the ward and the certificate was produced by the District Hospital. The additional evidence i.e. medical certificate dated 24th June, 2024 is required to enable this Court to pronounce judgment and is therefore permitted to be produced as additional evidence. In my opinion, the Appellant is a fit person to be appointed as the guardian of the ward and as the manager of the property of the ward. The appeal was dismissed by the District Court in view of the disability certificate certifying the ward as mentally retarded and thus, would not fall within the definition of mentally ill person which certificate has now been freshly issued under the orders of this Court which certifies the mental illness is moderate intellectual disability Harish 4 of 6 36-FA-442-2021.doc and therefore, the judicial inquisition, which is required under the provisions of Section 50 of the Mental Health Act stands satisfied.
10. Considering that the ward and Appellant are residing together, the Appellant is appointed as a guardian of the ward and the manager of the property of the ward under Section 54 of the Mental Health Act, 1987.
11. The Appellant shall not mortgage, create any charge or transfer by Will, gift, exchange or otherwise any immovable property of the ward or lease of any property for a period of exceeding five years without obtaining the permission of the District Court in that behalf, as mandated by section 59 of the Mental Health Act, 1987. In event such necessity arises, it is open for the Appellant to approach the District Court under Section 59 which application is to be decided by the District Court subject to such conditions or restrictions as the Court may deem fit.
12. As provided by Section 60 of the Mental Health Act, the Appellant shall within a period of six months from the date of his appointment, submit an inventory of the immovable property belonging to the ward and all assets and immovable property received on behalf of the ward together with a statement of all claims, debts and liabilities due by such ward before the District Court at Raigad, Alibag. While considering any applications filed for alienation of property or for dealing with the property, the District Court to consider whether there is a compliance of furnishing of the inventory and the annual accounts as provided under Section 60 of the Mental Health Act,1987.
Harish 5 of 6
36-FA-442-2021.doc
13. The Appellant is permitted to withdraw Rs. 10,000/- per month from the saving bank/pension account of the ward for the day to day expenses of ward i.e. Umesh Dhananjay Vasudeo.
14. In light of discussion above, the impugned judgment dated 16 th March 2019 is quashed and set aside. Civil Misc. Application No. 53 of 2018 is allowed to the extent of appointment of the Appellant as guardian of the ward i.e. Umesh Dhananjay Vasudev and as manager for management of the property of the ward under Section 54 subject to the terms which is stated above.
15. Appeal along with Interim Application stands allowed.
[Sharmila U. Deshmukh, J.]
Harish 6 of 6
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 17/08/2024 11:25:33