Allahabad High Court
Smt. Shalini Agarwal And 2 Others vs State Of U.P. And 4 Others on 14 October, 2020
Bench: Shashi Kant Gupta, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 32 Case :- WRIT - C No. - 5783 of 2020 Petitioner :- Smt. Shalini Agarwal And 2 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kshitij Shailendra,Akanksha Mishra Counsel for Respondent :- C.S.C.,Ashish Mishra,Chandan Sharma, Deepak Singh Hon'ble Shashi Kant Gupta,J.
Hon'ble Pankaj Bhatia,J.
1. Heard the learned counsel for the petitioner and Mr. B.P. Singh Kachhawah, learned Standing Counsel for the State respondent as well as Mr. Chandan Sharma, learned counsel for the respondents no. 2 and 3 and perused the record.
1A. This writ petition has been filed, inter alia, for the following relief:
" Issue a writ or direction or pass an order in the nature of mandamus commanding the High Court of Judicature at Allahabad through its Registrar General and /or the District Judge, Moradabad to appoint the petitioners or anyone of them as Guardian/Next Friend to deal with and operate/sale the move-able immoveable and financial properties /assets , owned by Shri Rajul Agarwal , who is lying in ' Comatose state ' (brain dead)."
1B. The material facts of the case as pleaded in the writ petition are as follows:
Mr. Rajul Agarwal, who is husband of petitioner no. 1 and father of petitioners no. 2 and 3, was admitted on 3.12.2018 in Cosmos Hospital, as a case of DM/Hypertension/Acute Pancreatic/ Hypnotic Isemic Encephalopathy/Hypokalemia, from where he was discharged on 4.2.2019. Thereafter, he was referred to Ganga Ram Hospital New Delhi, from where he was discharged. Since then Sri Rajul Agarwal is completely bed ridden and undergoing treatment at his home itself.Prior to his bed ridden state, he was engaged with the Partnership Firm carrying on the business of export, import, manufacturing, sale and purchase of Art wares of brass, E.P.N.S., Iron, Aluminum, Stainless Steel, Glass, Copper, Wood Cutlery and other Indian handicrafts. Rajul Agarwal had taken a housing loan from Axix Bank for Rs. 1,62,82,200/- which was sanctioned on 26.3.2018. He along with four other persons took a loan from Dewan Housing Finance Corporation Limited for Rs. 1,36,28,769/- which was sanctioned on 23.5.2018.
The petitioners are unemployed and are running out of financial resources to fund the medical bills of the victim and even to meet out basic needs. To add more to their woes, there are two outstanding loans, which they have to repay, which were sanctioned in the name of Shri Rajul Agarwal. Shri Rajul Agarwal owns certain properties in his name and also some properties along with other co-sharers but the petitioners are not in a position to deal with the properties because of the fact that Shri Rajul Agarwal is completely bedridden and in state of almost "brain dead".
2. The case of the petitioner is that although there are legislation in respect of appointment of a guardian of a minor , a person with mental condition as also a person with disability but there is no legislation governing appointment of guardian of a person in a comatose condition. This court by the order dated order dated 6.7.2020 , inter alia, had passed the following order:
"The District Magistrate/Collector, Moradabad shall constitute a Medical Board within a week from receipt of copy of this order. The Medical Board shall comprise, amongst others, a qualified Neurologist. The Medical Board shall thereafter examine Rajul Agarwal in respect of his medical condition, both physical and mental, and submit a report whether Rajul Agarwal is in a condition to interact or not. The said report shall be forwarded by the District Collector by or before 30th July, 2020. The petitioners are also directed to publish a notice of the listing of this petition in two newspapers, one in vernacular language and the other in English language, having vide circulation in the district of Moradabad so as to enable any person who may have objection in such appointment to file their objection by or before the next date fixed. Such publication shall be carried out within a week from today and the affidavit of service annexing therewith copy of the advertisement shall be filed by the next date fixed."
3. In pursuance of the aforementioned order of this court,a medical Board was constituted and the said Board examined Rajul Agarwal in respect of his mental condition and submitted its report dated 14.7.2020 wherein it was mentioned that " Rajul Agarwal is persistent vegetative state and he is not able to communicate and interact." Thus, it was found that Rajul Agarwal is not in a condition to interact.
4. A second supplementary affidavit has also been filed giving details of bank accounts, movable and immovable properties of Rajul Agarwal standing in his name. For ready reference, the details of the properties as mentioned in paragraph nos. 3,4,5 and 6 of the second supplementary affidavit are quoted below:
"3. That, in so far as description of the immoveable properties owned by Shri Rajul Agarwal , details of some of which have been given in paragraph no. 9 of the writ petition , the same are being reproduced as follows with additional details. Complete description is as follows:
i. A Flat number 28, block- A Green Hills Residency situated at Bhawali District Nainital, through registered sale deed dated 29.12.2015 ii. Land along with building situated at Khasra no. 14 village Sihora Govind Manju Nagar Tehsil and District Moradabad, through registered sale deed dated 27.04.2015 iii. Residential house situated at Civil Lines Chawni, Moradabad, through registered sale deed dated 31.05.2006 iv. Land measuring 300 sq meters. situated at village Didauli, Tehsil and District Moradabad, through registered sale deed dated 28.06.2014 and 334.51 sq meters, through registered sale deed dated 14.11.2014, and 0.684 hectares situated at village Didauli through registered sale deed dated 28.06.2014 and land measuring 0.684 hectare, through registered sale deed dated 14.11.2014.
v. Land situated at village Lakri Fazalpur through five number of sale deeds dated 15.07.2014, 28.07.2014 and 04.04.2015 vi. Land measuring 59.0297 sq meters. situated at village Dhakka Tehsil and District Moradabad through registered sale deed dated 17.04.2013.
vii. Land covered by Khasra No.510 area 1.032 hectare and Khasra No.509 area 0.684 hectare situated at village Didauli, Tehsil and District Amroha.
viii. Land covered by Khasra No.3049 area 0.234 hectare, Gata No.3074-Aa area 1.747 hectare, Gata No.3068 area 1.893 hectare, Gata No.3047-Va area 0.085 hectare, ix. Land covered by Khasra No.3050 area 0.0621 hectare, situated at Village Lakadi Bazar, Fazalpur, Tehsil and District Amroha.
x. Land covered by Khasra No.3066 area 0.263 Hectare, Land covered by Khasra No.3067 area 1.784 hectare, situated at Village Lakadi Bazar, Fazalpur, Tehsil and District Amroha.
xi. Land covered by Khasra No.3061 area 0.049 hectare total 4 kite total area 2.157 hectare's 1/4 share, situated at Village Lakadi Bazar, Fazalpur, Tehsil and District Amroha.
xii. Land covered by Khata No.108 and combined Khet No.379 and 380 situated at Village Kahal Kweera, patti Bhowali, Tehsil and District Nainital.
xiii. One Plot area 220 sq. mtr. situated at Mohalla Civil Lines, Tehsil and District Moradabad.
xiv. Land covered by Khasra No.14 area 442.17 sq. mtr. situated at Mohalla Manju Nagar, Tehsil and District Moradabad.
4. That, the details of the businesses of Shri Rajul Agarwal are as follows :-
i. Partner in a firm named BRASSCITY CREATIONS INC. in which he has 45% share ii. Partner in a firm M/s R.A. overseas in which he has 50% share.
iii. Partner in a firm named BRASSCITY CREATIONS in which he has 30% share
5. That, in so far as the bank accounts of Shri Rajul Agarwal are concerned, following are the details.
ACCOUNT NUMBER -- BANK 400029261830019 -- Deutsche bank, Naya Moradabad 711500301000283 -- Vijaya Bank, Moradabad 306701010027162 -- Union Bank of India, main branch, Moradabad
5. Learned counsel for the petitioner in support of his contention has also relied upon the judgement rendered by a Division Bench of this court in Uma Mittal and others Vs. Union of India and others : 2020(5) ADJ 532(DB) and submitted that in the said case also the similar controversy was involved and this court , inter alia, had passed the following order:
"30. Having gone through the medical examination report, (annexed with the short counter affidavit) prepared by the Medical Board constituted in pursuance of the directions given by this Court and the averments made in the writ petition, we are satisfied that SKM, husband of the petitioner No. 1, who was the sole bread earner in the family, is lying in a comatose state. Perusal of the record further indicates that SKM, has properties (immovable/movable, investments, bank accounts, deposits etc.) in his name, but the petitioners are not in a position to deal with the same due to legal hurdles. Further the Petitioners have incurred huge expenses for his treatment which has already lasted for more than a year and a half, for which they have even resorted to borrowing money from relatives and friends. Thus, petitioners who are in precarious financial condition are knocking on the door of this Court for redressal of their grievances.
31. Also, in view of the above discussions made hereinabove, there appears to be no dispute that none of legislative enactments as discussed in the earlier part of the judgment are applicable qua SKM, a person lying in a comatose state. Further, the petitioners are in dire need of money towards medical treatment of SKM and for the welfare of the family as they have exhausted their financial resources in the past one and a half years.
32. It is worthwhile to note, that the instant writ petition has been filed jointly by all the legal heirs of SKM namely Smt. Uma Mittal, Petitioner No. 1 (wife), Smt. Mohini Mittal Raizada, Petitioner No. 2 (married daughter), Ms. Ritika Mittal and Ms. Ruchika Mittal, Petitioners No. 3 and 4 (unmarried daughters) and Mr. Raghav Mittal, Petitioner No. 5 (son) with a prayer to appoint the Petitioner No. 1, Uma Mittal, wife of the SKM as guardian of her husband for the purpose of protecting his interest, administer bank accounts, investments, proprietorship business, etc. and in the event of necessity, to sale the immovable property standing in the name of SKM and to use the proceeds towards medical treatment of her husband and family welfare expenses. Thus, it is also clear that there is no dispute amongst the legal heirs of SKM.
33. Accordingly, while accepting the medical report of SKM submitted by the Medical Board, we hereby appoint the Petitioner No. 1, Uma Mittal, wife of SKM as the guardian of her husband SKM, who is in a comatose condition, vested with the property of her husband SKM to do all acts, deeds and things for the proper medical treatment, nursing care, welfare and benefit of the SKM and his children and with power to do all acts, deeds and things with respect to assets and properties of the SKM including; (i) operate bank accounts in the name of SKM; (ii) deal with shares, bonds, debentures in the name of SKM; (iii) invest the monies to earn optimum returns thereon; (iv) utilise the monies for proper upkeep and for fulfilling the needs of SKM and his children (v) represent the SKM before all persons/authorities/bodies; (vi) sign wherever required as guardian of SKM including for discharging any person/authority/body from duty/obligation/liability owed to SKM (vii) take possession and charge of all properties movable or immovable to SKM; (viii) take actions in law to protect interest of SKM; (ix) sign all deeds, documents, cheques as guardian of SKM; (x)petitioner No. 1 shall also be entitled to incur expenses for the family welfare purposes including marriages of her daughters namely Ms. Ritika Mittal, Petitioner No. 3 & Ms. Ruchika Mittal, Petitioner No. 4.
34. It is reiterated that the upon fulfilment of requisite formalities, the conc erned Banks (Respondents No. 5 and 6)/any other financial institutes will permit the Petitioner No. 1, Uma Mittal to operate the bank accounts and deal with other financial affairs standing in the name of SKM.
35. It is made clear that the Petitioner No. 1, Uma Mittal shall not sell, alienate encumber any of the immovable properties of the SKM except with the express permission of the Registrar General of this Court. The same will however not come in the way of the petitioner no. 1 letting out the immovable properties of the SKM from time to time and getting back the possession thereof. The petitioner No. 1, Uma Mittal shall comply with other requirements of being the guardian of petitioner No.1. Needless to state, such appointment is till SKM is unable to look after his affairs and subject to revocation in accordance with law.
36. It is further directed that the Petitioner No. 1 would file a report with the Registrar General of this Court every six months, detailing the transactions in respect of the assets of SKM.
37. Before parting, we wish to recommend to the Central Government to consider enacting an appropriate legislation pertaining to appointment of guardians qua persons lying in a comatose state, as no remedy is provided in any statute to persons in comatose/vegetative state, (as already discussed in detail in earlier part of this judgment), unlike legislations for appointment of guardians for minors and persons with other disabilities, including like mental retardation etc. "
6. Learned counsel for the petitioner submitted that since the controversy involved in the present case is squarely covered by the judgement rendered in the case of Uma Mittal ( supra), the present writ petition may be disposed of with the same direction/observations as it has been given in the aforementioned writ petition No. 40096 of 2019. Learned counsel appearing on behalf of the respondents did not rebut the submission/ prayer so made by the learned counsel for the petitioner.
7. Having gone through the medical examination report, (annexed with the supplementary affidavit) prepared by the Medical Board constituted in pursuance of the directions given by this Court and the averments made in the writ petition, we are satisfied that Mr. Rajul Agarwal husband of the petitioner No. 1, who was the sole bread earner in the family, is lying in a comatose state. Perusal of the record further indicates that Mr. Rajul Agarwal has properties (immovable/movable, investments, bank accounts, deposits etc.) in his name, but the petitioners are not in a position to deal with the same due to legal hurdles. Further the Petitioners have incurred huge expenses for his treatment which has already lasted for a long period of time for which they have even resorted to borrowing money from relatives and friends. Thus, petitioners who are in precarious financial condition are knocking on the door of this Court for redressal of their grievances.
8. It is worthwhile to note that the instant writ petition has been filed jointly by all the legal heirs of Rajul Agarwal namely Smt. Shalini Agarwal, Petitioner No.1(wife), Ayushi Agarwal Petitioner No.2 (married daughter), Aman Agarwal, Petitioner No. 3 (unmarried son) with a prayer to appoint the Petitioner No. 1, Smt.Shalini Agarwal wife of the Rajul Agarwal as guardian of her husband for the purpose of protecting his interest, administer bank accounts, investments, proprietorship/partnership business, etc. and in the event of necessity, to sell the immovable properties standing in the name of Rajul Agarwal and to use the proceeds towards medical treatment of her husband and family welfare expenses. Thus, it is also clear that there is no dispute amongst the legal heirs/family members of Rajul Agarwal.
9. In view of the above, considering the facts and circumstances of the case and also the submissions of the learned counsel for the respective parties, we dispose of the present writ petition with the following directions:
10. While accepting the medical report of Rajul Agarwal submitted by the Medical Board, we hereby appoint the Petitioner No. 1, Smt. Shalini Agawal, wife of Rajul Agarwal as the guardian of her husband , who is in a comatose condition, vested with the property of her husband to do all acts, deeds and things for the proper medical treatment, nursing care, welfare and benefit of her husband and his children and with power to do all acts, deeds and things with respect to assets and properties of Rajul Agarwal including; (i) operate bank accounts in the name of Rajul Agarwal; (ii) deal with shares, bonds, debentures in the name of Rajul Agarwal; (iii) invest the monies to earn optimum returns thereon; (iv) utilise the monies for proper upkeep and for fulfilling the needs of Rajul Agarwal and his children (v) represent the Rajul Agarwal before all persons/authorities/bodies; (vi) sign wherever required as guardian of Rajul Agarwal including for discharging any person/authority/body from duty/obligation/liability owed to Rajul Agarwal (vii) take possession and charge of all properties movable or immovable to Rajul Agarwal; (viii) take actions in law to protect interest of Rajul Agarwal; (ix) sign all deeds, documents, cheques as guardian of Rajul Agarwal; (x)petitioner No. 1 shall also be entitled to incur expenses for the family welfare purposes including marriage of her son Aman Agarwal , Petitioner No. 3.
11. It is further observed that upon fulfilment of requisite formalities, the concerned Banks or any other financial institutes will permit the Petitioner No. 1, Smt Shalini to operate the bank accounts and deal with other financial affairs standing in the name of Rajul Agarwal.
12. It is made clear that the Petitioner No. 1, Smt. Shalini Agarwal shall not sell, alienate encumber any of the immovable properties of Rajul Agarwal except with the express permission of the Registrar General of this Court. The same will however not come in the way of the petitioner no. 1 letting out the immovable properties of Rajul Agarwal from time to time and getting back the possession thereof. The petitioner No. 1, Smt. Shalini Agawal shall comply with other requirements of being the guardian of petitioner No.1. Needless to state, such appointment is till Rajul Agarwal is unable to look after his affairs and subject to revocation in accordance with law.
13. It is further directed that the Petitioner No. 1 would file a report with the Registrar General of this Court every six months, detailing the transactions in respect of the assets of Rajul Agarwal.
Order Date : 14.10.2020 MLK