Gujarat High Court
Chetan Babubhai Lakhani vs Mahendrabhai Liladharbhai Mashru on 1 October, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/2181/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2181 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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CHETAN BABUBHAI LAKHANI
Versus
MAHENDRABHAI LILADHARBHAI MASHRU
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Appearance:
MR IH SYED, ADVOCATE WITH MR YH MOTIRAMANI(3720) for the
PETITIONER(s) No. 1
MR.DIVYESH G NIMAVAT(3757) for the PETITIONER(s) No. 1
MR DIGANT B KAKKAD(6523) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/10/2018
ORAL JUDGMENT
1. This appeal under Section76 of the Mental Health Act, 1987 [for short the Act, 1987] is at the instance of the original applicant on the file of Civil Misc. Application No.21 of 2015 in the proceedings before the Page 1 of 26 C/FA/2181/2016 JUDGMENT District Court, Junagadh and is directed against the order passed by the 10th Adhoc Additional District Judge, Junagadh dated 13/05/2015 below Exh.6 in the Civil Misc. Application No.21 of 2015.
2. The case of the appellant herein in his own words as pleaded in the memo of the First Appeal is as under: 2.1 29.07.2013/7.08.2013 - CMA 102/2013: The appellant states that his uncle Shri Chandrakant Popatbhai Lakhani (for short "the mentally ill person") is aged about 77 years and is mentally ill atleast since the year 2011. The appellant states that the office of Chief District Medical OfficerCumCivil Surgeon, Civil Hospital, Junagadh has issued a certificate no.577 dated 29.07.2013 declaring that the mentally ill person is schizophrenic for last 1516 years with moderate (40%) mental retardation or mental disability, which is of permanent nature. Relying on the said certificate and factually also it must have been found that the mentally ill person requires to be guided by a guardian duly appointed by the competent court, the respondent herein filed a Civil Misc. Application No. 102/2013 (for short "CMA 102/2013") before the Court of Learned Principle District Judge, Junagadh (for short "the Learned Trial Court") seeking his appointment as guardian and manager of properties of mentally ill person.
The appellant states that the Learned Trial Court had issued a notice to the next of kin of the mentally ill person and accordingly the appellant was served with a notice of said CMA 102/2013. At the relevant point of time the appellant had good faith in the respondent and bonafide believed that the respondent would act in the best interest of the mentally ill person. Thus the appellant did not object to Page 2 of 26 C/FA/2181/2016 JUDGMENT the said CMA102/2013 and wanted the said application to be allowed in the interest of mentally ill person.
2.2 17.05.2014 - Withdrawal order passed in CMA102/2013:
The appellant states that the respondent filed a purshis (exh.52) in the said CMA102/2013 and accordingly vide order dated 17.05.2014 passed below exh.1 the said CMA102/2013 was permitted to be withdrawn. The appellant submits that this withdrawal was legally not permissible and even factually at the time of withdrawal also the mentally ill person was never cured and he remains to be mentally ill throughout and on misstatement of fact the CMA102/2013 was sought to be withdrawn.
2.3 27/29.01.2015 -Public notice by appellant:
The appellant states that as soon as he learnt about the withdrawal of the CMA 102/2013 and apprehended that the properties of the mentally ill person might be disposed off fraudulently, the appellant issued a public notice dated 27.01.2015 which was published in daily newspaper Sandesh on 29.01.2015.
2.4 5.02.2015 - CMA No.21/2015:
The appellant states that the appellant filed the present CMA 21/2015 before the District Court at Junagadh and prayed for the following reliefs:
"16. The applicant prays:
(A) that the Honourable Court be pleased to hold an inquisition under Section 50(2) of Mental Health Act, 1987 and order an inquiry about the mental condition of Shri Chandrakant Popatlal Lakhani and pass other appropriate orders;Page 3 of 26
C/FA/2181/2016 JUDGMENT (B) that the Honourable Court be pleased to appoint the applicant -
Chetan Babubhai Lakhani as guardian of mentally ill person and to manage, hold ad control all the movable and immovable properties including bank accounts, etc. of the mentally ill person;
(C) the Honourable Court be pleased to pass permanent injunction against all socalled power of attorney holders or persons holding any contract to sale or cheques or promissory notes holding on or on behalf of Chandrakant Popatlal Lakhani (mentally ill person) not to execute any such contract or cheques or promissory notes, etc. (D) for such other and further relief as the circumstances of case may require."
The appellant also filed an application (exh.6) with a prayer to hold an inquisition under Section 50(2) of Mental Health Act, 1987 (for short "the Act") and ordered an inquiry about the mental condition of the mentally ill person Shri Chandrakant Popatlal Lakhani.
The appellant states that the appellant had joined the respondent as an opponent in the CMA 21/2015 as the respondent has physical custody of the mentally ill person. The respondent is also in possession of several important documents including bank passbooks, cheques, etc. held by the mentally ill person. The Learned District Court issued notice in CMA21/2015 and made it returnable on 25.02.2015.
2.5 3.04.2015 -Reply (exh.17) and application (exh.21)filed by respondent and hearing of CMA 21/2015:
On 3.04.2015 the respondent filed reply (exh.17) to the application (Exhs.1 & 6). The respondent also filed an application exh.21 under Order 7 Rule 11 of Civil Procedure Code and prayed for dismissing the CMA 21/2015 at the threshold.Page 4 of 26
C/FA/2181/2016 JUDGMENT 2.6 6.04.2015 - orderbelow exh.21 in CMA 21/2015:
The appellant states that the Learned Trial Court was pleased to dismiss the application exh.21 vide order dated 6.04.2015 (copy at AnnexureB hereto).
2.7 Civil Revision Application No. 93/2015 and order dated 13.04.2015:
The appellant states that being aggrieved by the aforesaid order dated 6.04.2015 as below exh.21 in CMA21/2015, the respondent preferred Civil Revision Application No.93/2015 (for short "CRA 93/2015") before this Honourable Court. The said CRA 93/2015 has been disposed of by this Honourable Court (Coram: C.L Soni, J.) vide order dated 13.04.2015 (copy at AnnexureC hereto) as the same was not pressed by the respondent herein.
2.8 Impugned order dated 13.05.2015:
The appellant states that the hearing of application (exh.6) in CMA for holding inquisition into mental health of the mentally ill person was done before the Learned Trial Court on 1.05.2015 and 8.05.2015. The Learned Trial Court has been pleased vide impugned order dated 13.05.2015 to reject the said application (exh.6) and did not grant any of the reliefs prayed therein.
The appellant is challenging the said impugned order dated 13.05.2015 passed below application (exh.6) in CMA21/2015 in the present petition as the Learned Trial Court has not followed the procedure prescribed under Mental Health Act, 1987.
3. In the main proceedings, the appellant herein preferred the application Exh.6, which is extracted hereunder: Page 5 of 26 C/FA/2181/2016 JUDGMENT BEFORE THE DISTRICT COURT AT JUNAGADH CIVIL MISC. APPLICATION NO. OF 2015 Chetan Babubhai Lakhani Aged about 54 years, Occupation: Consulting Pathologist, Residing at: Anand Bungalow, Behind Panchal House, AnandVidyanagar Road, Anand. ...Applicant Versus Mahendrabhai Liladharbhai Mashru Adult, Occupation: Social Work, Residing at: Krishna Sheri, Haveli Gali, Junagadh. ...Opponent Application for injunction The applicant abovenamed most respectfully states as follows:
1. The applicant states that his uncle - Shri Chandrakant Popatbhai Lakhani is aged about 77 years and is mentally ill at least since the year 2011. The applicant is the nearest relative of Shri Chandrakant Popatlal Lakhani and therefore the applicant is competent to file this application as per the provisions of Mental Health Act, 1987 (for short "the Act"). As provided under section 50 of the Act, only one of the relatives or a public curator or an Advocate General or duly appointed person under Court of Wards Act can file such application and any application filed by person other than covered under Section 50 would be incompetent and illegal. Shri Chandrakant Popatbhai Lakhani is hereinafter referred to as "mentally ill person" in this application.
2. The applicant is nephew of the mentally ill person and is filing this application seeking his appointment as guardian and manager of property of mentally ill person as the mentally ill person has no issue nor has he adopted any person and his wife has passed away and therefore there is no direct relative who can look after the interest of the mentally ill person.
3. The applicant stats that there are about 8 other relatives of mentally ill person, whose names and addresses are given by way of a separate list.Page 6 of 26
C/FA/2181/2016 JUDGMENT
4. The mentally ill person's wife - Smt. Saryuben all of a sudden passed away on 15.08.2014 and presently the mentally ill person is living without any direct relative staying with him or looking after him. It is also alleged that one Shri Mahendrabhai Liladharbhai Mashru is claiming to be looking after the mentally ill person, but has no authority under the law to look after him and/or to manage his properties. It is reported that the mentally ill person is not in a position to take care of himself nor is he in a position to look after his interest much less about the protection of his properties.
5. The applicant states that for last about a decade the mentally ill person and his wife were in contact with Shri Mahendrabhai Liladharbhai Mashru. Shri Mahendrabhai Liladharbhai Mashru has details of all movable and immovable properties possessed by the mentally ill person and his deceased wife and it is reported that he has got all the extra monies or any other movables with him belonging to the mentally ill person.
6. As it was an admitted position that this mentally ill person was not competent to look after his personal interest and as such he was declared mentally ill by the Chairman and Medical Superintendent, MHH/CDMO, Junagadh and was declared to schizophrenic for last 15 16 years with moderate (40%) mental retardation or mental disability and this is of permanent nature. This certificate is issued on 29.07.2013. A copy of the said certificate is attached herewith. Relying on this certificate and factually also it must have been found that the mentally ill person requires to be guided a guardian duly appointed by the competent court and therefore Shri Mahendrabhai Liladharbhai Mashru filed a Civil Misc. Application No.102/2013 before this Honourable Court seeking his appointment as guardian and manager of properties of mentally ill person. The said original certificate is in custody of Shri Mahendrabhai Liladharbhai Mashru. The application was registered and public notice as well as notice to the next of kin was issued and the applicant was served with such a notice of said CMA No.102/2013. At the relevant point of time, the applicant also had good faith in Shri Mahendrabhai Liladharbhai Mashru and bonafide believed that Shri Mahendrabhai Liladharbhai Mashru would act in best interest of the mentally ill person. Thus the applicant did not object to CMA No.102/2013 and wanted that the application to be allowed in the interest of mentally ill person. Therefore this applicant did not file any objection in CMA No.102/2013. However, the applicant has recently learnt that the said CMA No.102/2013 came to be withdrawn by Shri Mahendrabhai Liladharbhai Mashru on or about 17.05.2014. This withdrawal was legally not permissible and even factually at the time of withdrawal also the mentally ill person was never cured and he remains to be mentally ill throughout and on Page 7 of 26 C/FA/2181/2016 JUDGMENT misstatement of fact the CMA No.102/2013 was sought to be withdrawn. It seems that one application exh.52 came to be filed by Shri Mahendrabhai Liladharbhai Mashru inter alia claiming that the wife of the mentally ill person filed an affidavit (exh.54) claiming that the mentally ill person at that time was having sound mental position and therefore in this exh.52 it was prayed that it was not necessary to appoint the guardian or person and property of the mentally ill person.
Another affidavit of one Shri Atulkukar Anantrai Lakhani (exh.53) was also filed to the effect that the mentally ill person was of sound mind and competent to take decisions and all the disputes between the mentally ill person and Shri Atulbhai have been settled and matters are compromised. Relying on these two affidavits, this Honourable Court was pleased to permit this CMA No.102/2013 to be withdrawn. It is submitted that when the medical certificate was issued to the effect that the mental position of the mentally ill person is of permanent nature and at the time of withdrawal of the CAMA No.102/2013 no other medical certificate was sought to be produced neither it was insisted by this Honourable Court. Therefore it is submitted that the previous CMA No.102/2013 was allowed to be withdrawn without any legal basis. It seems that there was some sort of fraud on the part of the relatives connected with this matter. It was also necessary for the applicant in CMA No.102/2013 to have issued notice in respect of this withdrawal purshis as the applicant is directly interested person in the person and property of the mentally ill person. The applicant states that all documents relating to movable and immovable properties are in custody of Shri Mahendrabhai Liladharbhai Mashru. Shri Mahendrabhai Liladharbhai Mashru has got signatures of the mentally ill person on several cheques and blank papers and the same might have been or are likely to be misused by Shri Mahendrabhai Liladharbhai Mashru. It would be interest of the mentally ill person to issue notice to Shri Mahenrabhai Liladharbhai Mashru for production of all the documents, bank accounts and monies lying with him or under his control. He may also be summoned to produced any transaction which he has personally or through mentally person's signatures dealt with any of his movable or immovable properties. He is also required to produce the accounts for expenditure allegedly incurred for the benefit of the mentally ill person.
7. The applicant states that the mentally ill person can only speak his name and does not recognize all his relatives and hence an inquisition is required to be held under Section 50(2) of the Act to inquire about the mental condition of the mentally ill person.
8. As far as to the knowledge of the application following are the movable and immovable properties possessed by the mentally ill person:
Page 8 of 26C/FA/2181/2016 JUDGMENT Immovable properties: (i) Land bearing revenue survey no.270 paiki admeasuring 2125
sq. mts. situate near Suvasnagar, Motibaug Area, Junagadh City, bounded as follows:
Towards East by : Land of survey No.207/3 Towards West by : Land of Bilnath Mahadev Towards North by : Maghdi Voklo (Rivulet) Towards South by : Main road.
(ii) BZone plot no.19 in non agricultural land bearing survey no.278 at JunagadhVeraval Highway, Junagadh City, bounded as follows:
Towards East by : Road towards Central School Towards West by : Private road of Survey no.278p Towards North by : Rainy water gutter Towards South by : JunagadhVeraval Highway
(iii) Land bearing revenue survey no.82/2 admeasuring 32375 sq. mts. at mouje Chobari, Taluka Junagadh, District Junagadh.
(iv) Land bearing revenue survey no.83/2 admeasuring 6709 sq. mts. at mouje Chobari, Taluka Junagadh, District Junagadh.
(v) Land bearing revenue survey no.78/1, 79/2 and 79/3 admeasuring 85288 sq. mts. at mouje Chobari, Taluka Junagadh, District Junagadh.
(vi) Land bearing revenue survey no.83/1 admeasuring 20134 sq. mts. at mouje Chobari, Taluka Junagadh, District Junagadh.
(vii) Shops on Second and Third Floor in commercial known as Genelia Shopping Centre on M.G. Road, Junagadh, which is bounded as follows:
Towards East by : Property in the name of Genelia Construction Towards West by : Property of Snehkant Ravirai Bakshi Towards North by : Property of Shri Kantilal Mathurdas Hindocha Towards South by : Property of heirs of Late Shri Liladharbhai Vashrambhai
(viii) Flat admeasuring 69.68 sq. mts. on Second Floor in building known as Genelia Shopping Centre on M.G. Road, Junagadh, which is bounded as follows:
Towards East by : Flat No.2 of Jawahar Ravirai Bakshi Towards West by : M.G. Road Page 9 of 26 C/FA/2181/2016 JUDGMENT Towards North by : Properties of Genelia Shopping Centre Towards South by : Property of Late Shri Liladharbhai Vashrambhai Movable properties:
(i) Bank Account No.08202191012073 held with Oriental Bank of Commerce, Junagadh.
(ii) Bank Account No.31390210000159 held with Union Bank of India, Azad Chowk Area, Junagadh.
(iii) Fixed deposits vide Account Nos.32345453576, 32345450417 and 23245451896 held with State Bank of India, Agriculture Branch, Junagadh.
(iv) Jewelery (price and weighment not known) of Late Smt. Saryuben Chandrakant Lakhani.
There may be other movable and immovable properties and the applicant reserves his right to include additional properties in this list as and when the same are disclosed to the applicant.
9. The applicant states that it is indeed surprising that CMA No.102/2013 is disposed of as withdrawn without proper verification about the mental condition of the mentally ill person. Hence the applicant is filing present application seeking his appointment as guardian of the mentally ill person and manager of his properties. The applicant reserves liberty to approach this Honourable Court for disposal of the properties of the mentally ill person, if required.
10. The applicant states that previously the mentally ill person was diagnosed by the doctors of Junagadh Civil Hospital. Now it would be interest of the mentally ill person to be examined or diagnosed by other panel of government doctors either at Jamnagar or at Ahmedabad or doctors of any other government hospital who are competent to issue such certificates.
11. The applicant has a good prima facie case. The balance of convenience is in favour of the applicant. No prejudice would be caused to the opponent if the interim injunction as prayed is granted by this Honourable Court. It would be in the interest of mentally ill person to hold an inquisition about his mental condition and to grant interim relief against dealing or disposal of his properties.
12. The applicant prays:
Page 10 of 26 C/FA/2181/2016 JUDGMENT
(A) that pending the hearing and final disposal of this application,
the Honourable Court be pleased to hold an inquisition under Section 50(2) of Mental Health Act, 1987 and order an inquiry about the mental condition of Shri Chandrakant Popatlal Lakhani and pass other appropriate orders;
(B) that pending the hearing and final disposal of the main application, the Honourable Court be pleased to pass interim injunction against all socalled power of attorney holders or persons holding any contract to sale or cheques or promissory notes holding on or on behalf of Chandrakant Popatlal Lakhani (mentally ill person) not to execute any such contract or cheques or promissory notes, etc. (C) for such other and further relief as the circumstances of case may require.
Date: 5.02.2015.
Place: Junagadh. _________________________ Applicant VERIFICATION I, Chetan s/o. Babubhai Lakhani, aged about 54 years, Occupation:
Consulting Pathologist, residing at: Anand Bungalow, Behind Panchal House, AnandVidyanagar Road, Anand, do hereby verify and state that what is stated above is true to my knowledge, information and belief and I believe the same to be true.
Date: 5.02.2015.
Place: Junagadh. _________________________ Applicant
4. The application Exh.6 filed by the appellant herein came to be adjudicated by the Court below and vide order dated 13/05/2015 rejected the same. The relevant findings recorded by the Court below while rejecting the application Exh.6 are as under: (6) Looking to the abovementioned facts and the case record, it is clear that the applicant has filed application - Exh.1 and injunction application-Exh.6 with prayer for holding judicial inquisition to ascertain whether Chandrakant Popatlal Lakhani is a mentally ill person or not and has heavily relied upon section 50 of Mental Health Act, 1987. Section 50 of Mental Health Act, 1987 reads as follows:Page 11 of 26
C/FA/2181/2016 JUDGMENT
50. Application for Judicial inquisition :
(1) 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 ...
(a) by any of his relatives, or
(b) by a public curator appointed under the Indian Succession Act 1925 (39 of 1925) or
(c) by the AdvocateGeneral of the State in which the alleged mentally ill person resides or
(d) whether 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.
(7) Considering the above provision in detail, Section 50(1) provides that whenever there is an allegation of a person being mentally ill and when such person possesses property then any relative of such person can file an application for inquisition and accordingly in this application the applicant is mentioned to be nephew of Chandrakant Popatlal Lakhani. Not only this but he has also produced a list of all relatives of Chandrakant Popatlal Lakhani. Considering the list of relatives it can be made out that Chandrakant Popatlal Lakhani has even other bloodrelatives apart from this applicant. The list of all relatives is also produced vide exh.46 in Civil Misc. Application No.102/2013 which was filed by the present opponent in the Court of District Judge, also mentions the name of present applicant. Hence it cannot be disputed that the applicant is a bloodrelative of Chandrakant Popatlal Lakhani. Section 2(t) of Mental Health Act, 1987 defines the term 'relative', according to which related persons includes any person related by blood, marriage or adoption. Thus considering the purshis - exh.46 filed by the opponent in Civil Misc. Application No.102/2013, it is established that the present applicant has a right to file the present application.
(8) Furthermore, considering the arguments made by the parties in respect of Section 50(1)(d), such an application for management of properties by a relative with a prayer for inquisition can be filed only if Page 12 of 26 C/FA/2181/2016 JUDGMENT the mental ill person owns or possesses some property. Considering the evidence on record as regards this, the applicant has mentioned the details of movable and immovable properties of Chandrakant Popatlal Lakhani in paragraph 8 of application - exh.1. There is no evidence on record to suggest whether such properties were in possession of the said person at the time of filing this application. Furthermore the applicant has mentioned in paragraph 8 as - "As far as to the knowledge of the application following are the movable and immovable properties possessed by the mentally ill person." Considering this it is clear that the applicant had knowledge about the properties. However, as mentioned above, Section 50(1) clearly mentions that the application for inquisition can be filed if the mentally ill person holds possession of the properties. The applicant has given details of properties in this application; however, he has failed to show possession of such properties by mentally ill person by not producing any public documents from any government records. Hence the conditions of Section 50(1) are not fulfilled. In this set of circumstances, a detailed study of the Division Bench judgment of Honourable Kerala High Court produced by the opponent reveals that the jurisdiction vested in District Court for holding an inquiry is not available as per the above provision in the opinion of this Court. Thus at the end of discussion and considering the arguments advanced in support of the prayer no.1 of the application, the prayers made in the application are not legally sustainable. Hence the following order is passed in present application
- Exh.6:
: ORDER : It is hereby ordered that the prayer no.1 of the applicant's application - Exh.6 to hold judicial inquiry of mentally ill person Chandrakant Popatlal Lakhani cannot be accepted at this stage.
No order as to costs.
Pronounced and signed in open Court on this 13th day of May 2015.
Junagadh. Sd/
Dt. 13/05/2015 (Bharatbhai Jamnadas Ganatra)
10th Adhoc Additional District Judge,
Junagadh.Code No.GJ00509
5. Being dissatisfied with the order passed by the Court below rejecting the application Exh.6, the appellant is here before this Court with this appeal.Page 13 of 26
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6. Section76 of the Act, 1987 provides for appeals from every order made by a District Court. Section76 reads as under:
76. Appeals: An appeal shall lie to the High Court from every order made by a District Court under this Chapter.
7. Let me now go to the other provisions of the Act, 1987.
Section50 is with regard to the application for judicial inquisition. Section50 reads as under:
50. Application for judicial inquisition.
(1) 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(a) by any of his relatives, or
(b) by a public curator appointed under the Indian Succession Act, 1925 (39 of 1925), or
(c) by the AdvocateGeneral of the State in which the alleged mentally ill person resides, or
(d) 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.
(2) On receipt of an application under subsection (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 ill person to produce such person at the said place and at the said time, or 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).
Page 14 of 26C/FA/2181/2016 JUDGMENT (3) A copy of the notice under subsection (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.
(4) For the purpose of holding the inquisition applied for, the District Court may appoint two or more persons to act as assessors.
Section51 stipulates the issues on which finding should be given by the District Court after inquisition. Section51 is extracted hereunder:
51. 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,
(i) whether the alleged mentally ill person is in fact mentally ill or not, and
(ii) where such person is mentally ill, whether he is incapable of taking care of himself and of managing his property, or incapable of managing his property only.
Section52 stipulates the Provision for appointing guardian of mentally ill person and for manager of property. Section52 is extracted hereunder:
52. Provision for appointing guardian of mentally ill person and for manager of property.
(1) 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 guardian under section 53 to take care of his person and of a manager under section 54 for the management of his property.
(2) 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 section 54 regarding the management of his property.
Page 15 of 26C/FA/2181/2016 JUDGMENT (3) Where the District Court records a finding that the alleged mentally ill person is not mentally ill, it shall dismiss the application.
(4) Where the District Court deems fit, it may appoint under sub section (1) the same person to be the guardian and manager.
Section53 provides for the appointment of guardian of mentally ill person. Section53 is extracted hereunder:
53. Appointment of guardian of mentally ill person.
(1) Where the mentally ill person is incapable of taking care of himself, the District Court or, where a direction has been issued under subsection (2) of section 54, the Collector of the District, may appoint any suitable person to be his guardian.
(2) In the discharge of his functions under subsection (1), the Collector shall be subject to the supervision and control of the State Government or of any authority appointed by it in that behalf.
8. Mr. Syed, the learned counsel pointed out that the mentally ill person happens to be the uncle of the appellant. The mentally ill person is a well reputed lawyer, but unfortunately, due to his ill health, he is now confined to the four walls of his house. Mr. Syed further submitted that some time back, the uncle of the appellant lost his wife. The uncle as on date is residing alone in his own house alongwith caretakers. The respondent herein showing undue interest in this litigation is a former Member of the Legislative Assembly. For some reason or the other, he is contesting the proceedings initiated by the appellant herein. Mr. Syed, in such circumstances, prays for the inquisition of the mentally ill person being the most important and the first steps in the process. He submits that the same should be ordered so that the main matter can proceed further in accordance with law. Mr. Syed prays that there being merit in this appeal, the same be allowed and the impugned order be quashed and set aside and the application Exh.6 be allowed.
Page 16 of 26C/FA/2181/2016 JUDGMENT
9. On the otherhand, this appeal has been vehemently opposed by Mr. Digant Kakkad, the learned counsel appearing for the respondent. Mr. Kakkad submits that his client is a social worker. For years together, he rendered yeomen services to the people at large in his capacity as a Member of the Gujarat Legislative Assembly. Mr. Kakkad submitted that his client had been contesting the election of the Gujarat Legislative Assembly past couple of years as an independent cadidate. In such circumstances, as a social worker and a good Samaritan, he has taken up the cause for the mentally ill uncle of the appellant.
10. Mr. Kakkad further submitted that Section50 of the Act, 1987 would come into play provided the mentally ill person is in possession of some immovable properties. The immovable properties owned by the uncle of the appellant have already been disposed of. The properties came to be disposed of during the pendency of the proceedings under the Act, 1987. Mr. Kakkad in the last submitted that this appeal itself is not maintainable as the impugned order is an interlocutory in nature.
11. In such circumstances referred to above, Mr. Kakkad, prays that there being no merit in this appeal, the same be dismissed.
12. Mr. Syed, the learned counsel in rejoinder to submission of Mr. Kakkad submitted that although the uncle who is ailing, is a well renowned and well reputed lawyer, the saledeeds have been executed affixing thumb impression and/or through the power of attorney. According to Mr. Syed, even in future, if the appellant wants to challenge or question the legality and validity of such transactions, the orders under the Act, 1987 are necessary.
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13. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned order.
14. I take notice of the fact that the respondent herein preferred an application Exh.21 under the provisions of the Order 7 Rule 11(d) of the Code of Civil Procedure for rejection of the plaint of Civil Misc. Application No.21 of 2015. The said application came to be rejected by the Court below vide order dated 06/04/2015. The order below Exh.21 passed by the Additional District Judge, Junagadh dated 06/04/2015 reads as under:
1. Read the application. Perused the record. Heard the Learned Advocate Shri Motiramani for the applicant and Learned Advocate Shri Kakkad for the opponent.
2. This is an application submitted by the opponent under the provision of Order VII Rule 11(d) of the Code of Civil Procedure. It has been stated by the opponent in this application that Chandrakantbhai Popatbhai Lakhani is a mentally retarded person. He is relying on the Certificate submitted at Mark 5/12 and the said Certificate shows that Chandrakantbhai Popatbhai Lakhani is a person of mental retardation and therefore Mental Health Act, 1987 will not apply but National Trust for Welfare of Persons with Austism, Cerebral Plasy, Mental Retardation and Multiple Disabilities Act (44 of 1999) will apply. Therefore, this Court has no jurisdiction to try this application which is filed under the provision of Mental Health Act, 1987 and the application is barred by Law and liable to be rejected.
3. This Court has perused the entire record and has heard both the learned advocates for the parties. This Court is of the considered opinion that the present application at Exhibit 21 is required to be rejected.
4. Let us have a look at the provision of different Acts.
5. The Mental Health Act, 1987 is applicable where a person is mentally ill. Section 2(1) of the said Act read as under: Section 2(1):
Page 18 of 26C/FA/2181/2016 JUDGMENT "mentally ill person" means a person who is in need of treatment by reason of any mental disorder other than mental retardation.
Whereas Section 2(g) of the National Trust for Welfare of Persons with Austism, Cerebral Plasy, Mental Retardation and Multiple Disabilities Act (44 of 1999), reads as under:
Section 2(g):
"mental retardation" means a condition of arrested or incomplete development of mind of a person which is specifically characterized by subnormality of intelligence.
6. So when the case falls under the definition of "mentally ill"
person, then on that event the provision of the Mental Health Act, 1987 will apply but when a case falls under the definition of "mental retardation" then the provision of National Trust for Welfare of Persons with Austism, Cerebral Plasy, Mental Retardation and Multiple Disabilities Act (44 of 1999) will apply. This Court is in agreement with the ratio laid down by the Honourable Orissa High Court rendered between AMIT TOPPO V. NONE, A.I.R. 2012 ORISSA 123, but in the considered opinion of this Court, the Judgment of the Honourable Orissa High Court, relied on by the Learned Advocate for the opponent side is not helpful to the opponent because the present case falls under the provision of the Mental Health Act, 1987.
7. It appears that the applicant is a nephew of Shri Chandrakantbhai Popatbhai Lakhani who is aged about 77 years and who is mentally ill person. The wife of Shri Chandrakantbhai Popatbhai Lakhani has expired on 15/08/2014. There is no person or relative except the applicant to look after Shri Chandrakantbhai. Formerly, the present opponent namely Shri Mahendrabhai Mashary had already preferred Civil Miscellaneous Application No.102/2013 before the Court of Honourable Principal District Judge under the provision of Section 50 read with Section 49(a) of the Mental Health Act, 1987 in which the present opponent Shri Mahendrabhai Mashru specifically averred that Shri Chandrakantbhai Lakhani was "mentally ill" person and he was in his care and custody. The said application was withdrawn by the present opponent Shri Mahendrabhai Mashru. It is very pertinent to note that in the above Civil Miscellaneous Application No.102/2013, the present opponent Shri Mahendrabhai Mashru has for 29 times used the word "mentally ill" in regard to Shri Chandrakantbhai Popatbhai Lakhani. Thus, now he cannot say that Shri Chandrakantbhai Popatbhai Lakhani is not a mentally ill person but, he is a person of mental retardation. Moreover, the present opponent - Shri Mahendrabhai Mashru has also filed affidavits produced at Mark 5/2 and 5/3 wherein he has stated on oath that Shri Chandrakantbhai Popatbhai Lakhani is mentally ill and filed the Page 19 of 26 C/FA/2181/2016 JUDGMENT application under the provision of Mental Health Act. Here there is material contradiction in the version of the opponent. In Civil Miscellaneous Application No.102/2013, the opponent states on oath that Shri Chandrakantbhai Popatbhai Lakhani is a mentally ill person and filed the application under the provision of Mental Health Act and on the other hand filed the present application at Exhibit 21 stating that Shri Chandrakantbhai Lakhani is not a mentally ill person but a person with mental retardation. Therefore, there is vast contradiction in both the statements of the opponent and the said contradiction would have arise because in the Civil Miscellaneous Application No.102/2013, the present opponent was the applicant and herein the present application, he is an opponent and therefore, makes the statements favouring his application by changing the previous version. Therefore also, the act of the opponent for changing the version as per the situation and changing circumstances, i.e.on one hand as applicant and other as opponent, cannot be relied upon. Even otherwise this Court is of the considered opinion that merely on the strength of a certificate at Mark 5/12 given by the Junagadh Hospital on 19/07/2013, it cannot be primafacie concluded that Shri Chandrakantbhai Lakhani is a person of mental retardation and he does not require medical treatment. Whether he requires medical treatment or not can be decided only after appointing a person and only after getting the report. Without carrying out primafacie investigation or inquiry, the Court cannot come to the conclusion that Shri Chandrakantbhai Lakhani does not require any medical treatment or he is not in need of medical treatment. So Law is very clear that when a person is falling under the definition of mentally ill, the provision of Mental Health Act, 198 will apply and when a person is falling within the definition of mental retardation, the National Trust for Welfare of Persons with Austism, Cerebral Plasy, Mental Retardation and Multiple Disabilities Act (44 of 1999), will apply.
8. Thus, as per the discussion made herein above and considering the provision of the Law, this Court is of the considered opinion that this Court has jurisdiction to try this application which is filed under the provisions of Mental Health Act, 1987. Hence, the present application at Exhibit 21 is required to be rejected and same is rejected accordingly.
Signed and pronounced in open Court on this 6th day of April, 2015.
Junagadh sd/
Date:06/04/2015 (Prathmesh V. Shrivastav)
Additional District Judge
Junagadh
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C/FA/2181/2016 JUDGMENT
15. The respondent being dissatisfied with the said order passed by the Court below Exh.21 came before this Court by filing the Civil Revision Application No.93 of 2015. The Civil Revision Application came to be disposed of by a coordinate bench of this Court vide order dated 13/04/2015. The order reads as under:
1. The present applicant the opponent of the application being Civil Miscellaneous Application No. 21 of 2015 filed application under Order 7 Rule 11 of the Civil Procedure Code, praying to reject the application preferred by opponent herein, on the ground that in the application preferred by opponent, the opponent himself has stated that there is a certificate, copy whereof is attached with the application, to the effect that Shree Chandrakant Popatlal Lakhani in respect of whom the application is made under Section 50 (2) of Mental Health Act, 1987 (the Act), is mentally retarded person and not mentally ill person and therefore the application filed under Mental Health Act 1987 is not maintainable and the Court has no jurisdiction to decide such application in view of the provisions of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act (44 of 1999). However, during the course of argument, learned Senior Advocate Mr. Sanjanwala appearing with learned Advocate Mr. Kakkad states that in view of the provision of Section 51 of Act since on completion of the inquisition, the District Court shall be required to record its findings on the issue as to whether person is mentally ill or not, the petitioner would like to make appropriate application at that stage on the basis of the report submitted before the District Court and therefore, he does not press this application with liberty to make above such application.
2. Learned Advocate Mr. Saiyed appearing for Mr. Motirawani, however opposed the request made by learned senior Advocate Mr. Sanjanwala to permit the applicant to move appropriate application after the inquisition report is received by the District Court. However, Court finds that if it is otherwise open to the applicant to move any application, such right cannot be curtailed.
3. In view of the above, the present revision application stands disposed of as not pressed.
4. It will be open to the applicant to make appropriate application before the District Court after the inquisition report is submitted before the District Court for appropriate relief including for the relief for rejection of the main application, if permissible under Law.
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5. Mr. Sanjanwala however requests to observe that the observations made by the Court below while deciding the application filed under Order 7 Rule 11 shall not come in the way of the Court below while deciding application of the applicant. It is needless to observe that the observations of the Court below are just for the purpose of deciding the application filed under Order 7 Rule 11. As and when after the inquisition report is received by the District Court, if the cause arises, the applicant may file appropriate application.
16. Having remained unsuccessful in getting the plaint rejected, the respondent thereafter opposed the application Exh.6 filed by the appellant herein for the judicial inquisition into the mental condition of the uncle. I am not convinced with any of the submissions canvassed by Mr. Kakkad, the learned counsel appearing for the respondent and at the same time, not convinced even with the reasonings assigned by the Court below for the purpose of rejecting the application Exh.6. There is evidence on record to indicate that the uncle of the appellant, who is mentally ill is still possessed of both the movable and immovable properties. In such circumstances, a detailed inquiry was necessary at the end of the Court below in this regard.
17. I may refer to and rely upon the decision of a Division Bench of the Kerala High Court in the case of Peter Thompson Vs. Mrs. Tresa Xavier and Another reported in AIR 1984 Ker 35. The Kerala High Court had the occasion to deal with the Section83 of the Lunacy Act [Central Act IV of 1912]. This Lunacy Act 1912 came to be repealed and the Mental Health Act, 1987 came to be enacted. The Provisions by and large remain the same. I may quote the relevant paragraphs.
5. The Act defines lunatic in Sec.3(5) thus: "Lunatic means an idiot or person of unsound mind." Lunatic under the Act refers to a state of mind, defective and undeveloped, as in the case of an idiot, or deranged or disordered and thus abnormal and out of equilibrium as in unsoundness of mind.
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6. In Halsbury's Laws of England Second Edition, Vol. 21 the expression "persons of unsound mind" has been defined as follows :
"Unsoundness of mind, or as it is sometimes styled lunacy or insanity, may be shortly defined as a defect of a reason, consisting either in its total or partial absence or in its perturbation. The perturbation or absence of reason which constitutes insanity is an abnormal state of the mind of a man judged by a standard which recognises a normal standard of rationality and pronounces that man to be insane. Sanity exists when the brain and the nervous system are in such a condition that the mental functions of feeling and knowing, emotion, and of willing, can be performed in their regular and usual manner. Insanity means a state in which one or more of the above named mental functions is or are performed in an abnormal way or not performed at all by reason of some disease of the brain or nervous system. The question whether any man is of unsound mind can only be decided by reference to the ordinary standard of human intelligence; and when a case comes before a Court it is the duty of the court to decide the question of mental capacity, and expert evidence does not relieve it from the obligation to form an independent opinion."
7. In Sonabati Devi v. Narayan Chandra Upadhya (AIR 1935 Pat
423) Courtney Terrell, C. J. stated thus :
"Now no person can have direct experience of the mind of another and the proper test of insanity is conduct. A person might conceivably have all kinds of mental unsoundness; he might have all kinds of delusions, but if his conduct remains normal, there should be no power under the Lunacy Act to deal with him because the law of Lunacy deals with conduct and the proper test for insanity, is not the beliefs that the person concerned may entertain but the conduct exhibited by that person."
8. The relevant provisions of the Act, Ss.62, 63, 40, 41 and 42 read thus :
"62. Power of District Court to institute inquisition as to persons alleged to be lunatic. Whenever any person not subject to the jurisdiction of any of the Courts mentioned in Sec.37 is possessed of property and is alleged to be a lunatic, the District Court, within whose jurisdiction such person is residing may, upon application, by order direct an inquisition for the purpose of ascertaining whether such person is of unsound mind and incapable of managing himself and his affairs.
63. Application by whom to be made (1) Application for such inquisition may be made by any relative or the alleged lunatic or by any public Curator appointed under the Succession (Property Protection) Act, 1841, (hereinafter referred to as the Curator), or by the Government Pleader, as defined in the Civil P.C., 1908, or if the property of the alleged lunatic consists in whole or in part of land or any interest of land, by the Collector of the District in which it is situate.Page 23 of 26
C/FA/2181/2016 JUDGMENT (2) If the property or any part thereof is of such a description that it would by the law in force in any State where such property is situate subjects the proprietor, if disqualified, to the jurisdiction of the Court of Wards, the application maybe made by the Collector on behalf of the Court of Wards.
40. Notice of time and place of inquisition. (1) Notice shall be given to the alleged lunatic of the time and place at which it is proposed to hold the inquisition.
(2) If it appears that personal service on the alleged lunatic would be ineffectual, the Court may direct such substituted service of the notice as it thinks fit.
(3) The Court may also direct a copy of such notice to be served upon any relative of the alleged lunatic and upon any other person to whom in the opinion of the Court notice of the application should be given.
41. Powers of Court in respect of attendance and examination of lunatic. (1) The Court may require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or by any person from whom the Court may desire to have a report of the mental capacity and condition of such alleged lunatic.
(2) The Court may likewise make an order authorizing any person or persons therein named to have access to the alleged lunatic for the purpose of a personal examination.
42. Rules respecting attendance anal examination of females alleged to be lunatic. The attendance and examination, of the alleged lunatic under the provisions of Sec.41, shall, if the alleged lunatic be a woman whom, according to the manners and customs of the country, ought not to be compelled to appear in public, be regulated by the law and practice for the examination of such persons in other civil cases."
9. In dealing with the problem posed to the care of the Courts, the scheme and object of the Act contemplate cautious approach, careful concern and a just determination through the watchful process of a judicial enquiry. It seems to be clear that the Court has to issue directions for inquisition in the first instance before further proceedings can continue. Inquisition is investigation or examination whether the person who is alleged to be a lunatic is of unsound mind and incapable of managing his affairs. This direction for inquisition precedes an enquiry as contemplated under the Act. This direction can be issued on the basis of the averments made in the petition, the affidavits, if any, filed and other materials produced in support of the case. It is, therefore, necessary that the application filed should contain all necessary and relevant matters and it is imperative that it also contains the names of the relatives of the alleged lunatic. The petitioner cannot withhold the names of the relations and obtain an order of the Court behind their back. When once the direction for inquisition is made, notice has to be given to the alleged lunatic Page 24 of 26 C/FA/2181/2016 JUDGMENT stating the time and place at which it is proposed to hold the inquisition. If personal service to the alleged lunatic is ineffectual, the matter has to be reported to the Court and the Court has to apply its mind and direct such substituted service of the notice as it thinks fit. The Court has also to give a copy of the notice to be served on any relative of the alleged lunatic and upon any other person to whom in the opinion of the Court, notice of the application should be given. There is sufficient power in the Court to require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or by any person from whom the Court may desire to have a report of the mental capacity and condition of such alleged lunatic.
10. Rankin, C. J. in Saraj Basini Debi v. Mohendra Nath (AIR 1927 Cal 636) held as follows :
"But the first thing which has to be done upon an application such as was presented in this case is that the learned Judge either with notice to the lunatic or without notice should carefully consider whether the case is one which calls for an order directing an inquisition. If he considers that it calls for an order directing an inquisition, then it is his obvious duty to record an order directing an inquisition. When he has once done that, then the petition is a spent petition which has served its primary purpose. When he has once done that, he is then by the combined operation of Section 64 with Ss.44, 41 and 42 of the Act to take certain steps with regard to notices."
11. The mode of enquiry prescribed in Ss.40, 41 and 42 is therefore a statutory prescription compelling obedience. These provisions serve great public interest and are necessary for an effective discharge of the duties vested in the Courts.
18. In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the 10th Adhoc Additional District Judge, Junagadh dated 13/05/2015 below Exh.6 in the Civil Misc. Application No.21 of 2015 is hereby quashed and set aside. The application Exh.6 filed by the appellant herein is allowed.
As the application Exh.6 has been allowed, the next step in the process should be to act in accordance with the Section50(2) of the Act 1987. The Court concerned shall now take steps to see that the uncle of the appellant viz.Chandrakantbhai Popatbhai Lakhani is thoroughly Page 25 of 26 C/FA/2181/2016 JUDGMENT examined medically by the Head of the Neurology Department of the Civil Hospital, Junagadh and if need be through a team of doctors. Once this part of the process is over, then the main application shall thereafter be adjudicated further. After the receipt of the report of the Hospital concerned with regard to the mental condition of the patient, the Court concerned shall see to it that the main matter is disposed of within a period of three months thereafter. The process with regard to the judicial inquisition shall also be undertaken at the earliest. The Court concerned shall see to it that it is completed within a period of 15 days from the date of the receipt of the order.
Direct service is permitted.
(J.B.PARDIWALA, J) aruna Page 26 of 26