CHAPTER - VI
JUDICIAL INQUISITION REGADING ALLEGED MENTALLY ILL PERSION POSSESSING PROPERTY, CUSTODY OF HIS PERSION AND MANAGEMENT OF HIS PROPERTY
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).
JURISDICTION - The Lunacy (Supreme Courts) Act, 1958, gives power to those Courts to direct an inquiry as to "any person subject to the jurisdiction of the Court". The preamble of the Lunacy (Districts Courts) Act of the same year states that it is expedient to make better provisions for the case of the states of lunatics "not subject to the jurisdiction of the Supreme Courts of adJudicature". In 1981 the Allahabad high court decided that, under its own letters patent, it had no original jurisdiction in respect of the persons and estates of lunatics who were natives of India. In the course of that case, the Court ascertained from the Registrar of the original side of the Calcutta High Court that at that date its powers in the matters of lunacy as the successor and inheritor of the powers of the old Supreme Court were, as regards natives of India, only exercised within the limits of the town of Calcutta itself, and that in other respects the procedure directed by the Lunacy (District Court) Act, 1958,was followed in Lower Bengal. The Court expressed the view that this practice was correct. The Lunacy Act, 19121 repealed both the Acts of 1958, but made no alteration in the law with regard to the matter now under consideration. For a person to come under that chapter he must be not subject to the jurisdiction of a High Court, and must be resident within the jurisdiction of a District Court. The question of jurisdiction was considered in Anila Bala Chowdhurani V. Dhirendra Nath Saha2 where it was held that the jurisdiction of the Pabna District Court was ousted because the alleged lunatic (an Indian) resided both at Pabna and at Calcutta, but it is clear from that case that, but for his residence at Calcutta, the Pabna District Court would have had jurisdiction and the original side of the Calcutta High Court would not. In in re Taruchandra Ghosh,3 the Court held that, under Cl. 17 of the Charter, the Court had power to appoint a guardian of an Indian infant resident outside the original jurisdiction. The order was made ex parte on the father's application, it being stated there was no opposition.The attention of the Court was not drawn to 13 Geo. 3, c. 63, nor to the cases referred to above. Moreover, the language of Cl.25 of the Charter of 1774 as regards infants, differs from its language as regards lunatics. The original side of the Calcutta High Court has no jurisdiction to direct an inquisition or appoint a guardian of person or property in the case of an Indian not resident in Calcutta4.
WHAT HAS TO BE FOUND UNDER THE ACT - What has to be found under the Act is that the person is of unsound mind and that the unsoundness of mind is such as to make him incapable of managing his affairs. A person who is incapable of managing his affairs is not necessarily of unsound mind and a person of unsound mind may not be incapable of managing his affairs. The Court must hold that both unsoundness of mind and incapacity to manage his affairs are present and that the latter is due to the former5.
DUTY OF THE COURT - It has, at the very outset to be realized that an order declaring a person to be of unsound mind and incapable on that account of managing his affairs is an order of a very serious character. It has the effect of disqualifying him from using his own property in the manner he desires and placing a drastic check on his rights and privileges which as a normal individual, he would be entitled to enjoy. In Teka Devi V. Gopal Das6, it was observed that:
"It is, therefore, the duty of the Court before proceeding further, the determine judicially whether the person alleged to be incapable of managing himself or his affairs, is really a lunatic in this sense. Secondly, it must be remembered that this finding has got very far-reaching consequences and must be given after very great care and deliberation. It may have the immediate effect of putting a human being
Being under restraint. It might deprive him for a time, or forever of the possession and management of his property. It will be prima facie evidence of his lunacy, and may be read in proof of it in other proceedings. The Legislature has, therefore, laid down an elaborate procedure for conducting an enquiry into this matter, and this procedure must be strictly followed. The Court cannot and ought not to deal lightheartedely with this important question, and it should not consider itself relieved of its responsibility by the mere circumstance that some or all the relatives of the person concerned have declared that he is lunatic".
The above is undoubtedly an accurate statement of the policy underlying the precaution enjoined by the Legislature in the various provisions of the Act as a preliminary condition to the final exercise of jurisdiction by the Court in declaring a person as a lunatic1.
The smallest attention to the words of the Indian Lunacy Act2 whether they be the words of Sec. 62 or the words of Sec. 38 shows this that the Legislature appreciates that to have an inquisition into the state of health, the state of mind, the state of property and general capacity of a person is a thing which affects that person so prejudicially that it ought not to be taken except it be first ordered upon a careful consideration of evidence3. It was said in a case reported in Muhammad Yaqub V. Nazir Ahmad4: "It is true that nothing is contained in the Act itself to direct or guide a Judge as to how he shall consider applications for an inquisition and probably no rules exist for dealing with the matter; but ordinary commonsense would appear to dictate to a tribunal before whom such an application comes that care should be exercised in a painful matter of this kind, namely, an enquiry into a man's or woman's state of mind; specially in the case of people in conformable circumstances who merely wish to lead a quiet life care should be exercised that they are not suddenly flung without sufficient reason into an elaborate inquisition which after all is nothing more or less than a trial involving sometimes the history of a person's life back for many years, medical evidence, and all sorts of family witnesses".
INQUISITION - The Lunacy Act does not contain any procedure or permit any procedure by which a man today can be declared to be a lunatic ten years ago in the past5.
JURISDICTION OF THE LUNACY COURT - The jurisdiction of the Lunacy Court depends on normal residence of the alleged lunatic and not on his temporary residence except in the cases of the High Courts of Calcutta, Madras and Bombay where different rules are applicable under the Charters and Letter Patent. The principles of residence are clearly laid down by a Bench of three learned Judges consisting of Sir Ashutosh Mookerjee, Acting Chief Justice, and Fletcher and Richardson, JJ. In Anila Bala Choudhurani V. Dhirendra Natha Saha1. That decision is an authority on the proposition that Sec. 38 of the Lunacy Act does not define the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial inquisition as to lunacy. But the proceedings are directed primarily against the person and only secondarily against his property. Such authority over the person may, unless otherwise directed by statute, be ordinarily exercised in the case of residents within the local limits of the jurisdiction of the Court. No doubt it may also be exercised over non-residents, if there is statutory provision to that effect. The third proposition laid down by this decision is that before a District Court can institute inquisition of a person possessed of property and alleged to be a lunatic it must be established not merely that such person is residing within the jurisdiction of that Court but also that he is not subject to the jurisdiction of any of the High Courts mentioned in Sec. 37 of the Lunacy Act. Therefore, in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Sec. 37, the District Court has no jurisdiction under Sec. 62, even though the person may reside within the local limits of the jurisdiction of the District Court. In other words, the jurisdiction of the High Court and District Court are not concurrent, but the jurisdiction of the High Court excludes that of the District Court; although if the alleged lunatic resides in two districts, the jurisdiction of the two Courts are concurrent and not mutually exclusive2.
PROOF OF INSANITY- The question of insanity requires a most careful examination and it is difficult to think that bare assertion by witnesses unsupported by any details of the cause, the course and the treatment of the malady ought to be accepted as satisfactory proof3.
NOTICE - DIRECTING AN INQUISITION - The notice contemplated by Sec. 40 is a notice to be drawn up after there has been an order directing an inquisition. It is notice of such order and of the time and place at which the inquisition is to be held. It is notice of the petition. The notice prescribed is a notice that the Court has determined to hold an inquisition. So far as the alleged lunatic concerned, it is a most important notice. It is a notice which tells him that he is in such a serious position that Court has determined to enquire into his state of mind and that his liberty and his right to manage his own affairs is now in peril by virtue of a considered judgement of a District Judge. There is nothing in the Lunacy Act about general notices. There is a definite provision in the Lunacy Act for notice to he lunatics and to such relatives or other persons as the District Judge may think it desirable to give notice to. Under the Guardians and Wards Act the provision for notice to the minor is a provision about general notice, that is to say, the notice has to be affixed in the Court-house and a copy has to be affixed to the permanent place of residence of the minor4.
On completion of the inquisition, the District Court shall record its findings on -
This section empowers District Court to record its findings on certain issues.
This section makes provision for appointment of guardian of mentally ill person and for manager or property.
This section empowers the District Court or the Collector to appoint guardian of mentally ill person.
APPOINTMENT OF MANGER - There is no prohibition in the Gwalior law and the Indian Lunacy Act (since repealed by this Act), against appointment or re-appointment of persons already acting as managers of the estate of a person during his minority who later on became a lunatic/mentally ill person either before or after attainment of majority1.
Since the vendor did not obtain any order from the competent Court under the Lunacy Act (since repealed by this Act), to have him appointed as Manager of the joint family to alienate the property, the sale is per se illegal. The sale, therefore, appears to be to defeat the statutory right of the appellant2.
Where the property of a mentally ill person has been entrusted to the Collector by the District Court under sub-section (2) of Sec. 54, he may, subject to the control of the State Government or of any authority appointed by it in that behalf, appoint any suitable person for the management of the property of the mentally ill person.
This section empowers the Collector to appoint manager of the property of a mentally ill person.
Every person who is appointed as the manager of the property of a mentally ill person by the District Court or by the Collector shall, if so required by the appointing authority, enter into a bond for such sum, in such form and with such sureties as that authority may specify, to account for all receipts from the property of the mentally ill person.
This section requires the manager of property to execute bond.
This section deals with appointment and remuneration of guardians and managers.
"FAMILY" - A married daughter living with her husband and separate from her father is not entitled to a separate maintenance being allowed to her against her father's estate, when that estate is taken charge of by the Court under the provisions of Lunatic Act (since repealed by this Act).
The word "family" includes persons living with the lunatic/mentally ill person as members of his family, that is to say, persons actually depending upon him for their maintenance1.
In the instant case, under the relevant Medical Rules, the father was a member of the family of his son and was wholly dependent on him and the 2nd respondent was thus fully entitled to reimbursement for the expenses incurred on the treatment of his father and other travelling expenses2.
Provided that the manager shall not mortgage, create any charge on, or , transfer by sale, gift, exchange or otherwise, any immoveable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court in that behalf.
A manager is empowered to exercise the same powers in regard to the management of the property of the mentally ill person as the mentally ill person would have exercised as owner of the property had he not been ill.
The manager shall, however, not mortgage, create any charge on, or, transfer by sale, gift etc. any immoveable property without the prior permission of the District Court.
Under this section manager has to furnish inventory and annual accounts in respect of the property of the mentally ill person to the appointing authority.
Every manager appointed under this Act, may, in the name and on behalf of the mentally ill person -
This section empowers the manager to execute conveyances in the name and on behalf of the mentally ill person, under the orders of the District Court.
Where the mentally ill person had, before his mental illness, contracted to sell or otherwise dispose of his property or any portion thereof, and if such contract is, in the opinion of the District Court, of such a nature as ought to be performed, the District Court may direct the manager appointed under this Act to perform such contract and to do such other acts in fulfilment of the contract as the Court considers necessary and thereupon the manager shall be bound to act accordingly.
Where a mentally ill person had been engaged in business before he became mentally ill, the District Court may, if it appears to be for the benefit of the mentally ill person to dispose of his business premises, direct the manager appointed under this Act in relation to the property of such person to sell and dispose of such premises and to apply the sale proceeds thereof in such manner as the District Court may direct and thereupon the manager shall be bound to act accordingly.
The District Court is empowered to direct disposal of business premises of a mentally ill person, who was engaged in business prior to becoming mentally ill, for the benefit of the said ill person.
Where a mentally ill person is entitled to a lease or under lease, and it appears to the manager appointed under this Act in relation to the property of such person that it would be for the benefit of the mentally ill person to dispose of such leas or under lease, such manager may, after obtaining the orders of the District Court, surrender, assign or otherwise dispose of such lease or under lease to such person for such consideration and upon such terms and conditions as the Court may direct.
This section empowers manager of a mentally ill person to dispose of lease for the benefit of the mentally ill person, after obtaining the orders of the District Court.
The District Court may, on an application made to mentally ill person or his property, make such order, subject to the provisions of this Chapter, in relation to that matter as in the circumstances it thinks fit.
This section empowers the District Court to pass order concerning any matter connected with mentally ill person.
If any relative of the mentally ill person or the collector impugns, by a petition to the District Court, the accuracy of the inventory or statement referred to in sub-section (1), or, as the case may be, any annual account referred to in sub-section (2) of Sec.60, the Court may summon the manager and summarily inquire into the matter and make such order thereon as it thinks fit.
Provided that the District Court may, in its discretion, refer such petition to any Court subordinate to it, or to the Collector in any case where the manager was appointed by the Collector and the petition is not presented by the Collector.
This section lays down the procedure for disposal of petition challenging accuracy of inventory or account.
All sums received by a manager on account of any estate in excess of what may be required for the current expenses of the mentally ill person or for the management of his property, shall be paid into the public treasury on account of the estate, and shall be invested from time to time in any of the securities specified in Sec.20 of the Indian Trusts Act, 1882 (2 of 1982), unless the authority which appointed him, for reasons to be recorded in writing, directs that, in the interests of the mentally ill person such sums be otherwise invested or applied.
A manager of mentally ill person is required under this section, to make payment into public treasury on account of estate.
Any relative of a mentally ill person may, with the leave of the District Court, sue for an account from any manager appointed under this Act, or from any such person after his removal from office or trust, or from his legal representative in the case of his death, in respect of any property then or formerly under his management or of any sum of money or other property received by him on account of such property.
This section empowers relative of a mentally ill person, with the leave to the District Court, to sue for account from any manager.
This section makes provision for removal of managers and guardians of a mentally ill person
This section makes provision for dissolution and disposal of property of partnership firm when a member becomes mentally ill.
This section empowers the District Court to order for application/utilization of cash and the produce of other property for maintenance of mentally ill person without appointing a manager of the estate.
This section empowers the District Court to pass order for transfer of stock, securities or share belonging to mentally ill person, when the manager dies or himself becomes mentally ill or neglects or refuses to transfer stock, securities, etc.
Where any stock or Government securities or share in a company is or are standing in the name of, or vested in , any person residing out of India, the District Court upon being satisfied that such person has been declared to be mentally ill and that his personal estate has been vested in a person appointed for the management thereof, according to the law of the place where he is residing, may direct the company or Government concerned to make such transfer of the stock, securities or shares or of any part thereof, to or into the name of the person so appointed or otherwise, and also to receive and pay over the dividends and proceeds, as the District Court thinks fit.
This section empowers the District Court to issue directions for transfer of stock, securities or shares of mentally ill person residing out of India.
If it appears to the District Court that the mental illness of a mentally ill person is in its nature temporary, and that it is expedient to make provision for a temporary period, for his maintenance for the maintenance of such members of his family as are dependent on him, the District Court may, in like manner as under Sec. 71, direct his property or a sufficient part thereof to be applied for the purpose specified therein.
The District Court is empowered, under this section, to apply property of the mentally ill person for his maintenance in case of temporary mental illness.
This section makes provision for setting aside the action taken in respect of mentally ill person if the District Court finds that his mental illness has ceased.
An appeal shall lie to the High Court from every order made by a District Court under this Chapter.
This section makes provision for appeal in High Court from every order of the District Court.
The District Court may, from time to time, make regulations for the purpose of carrying out the provisions of this Chapter.
This section empowers the District Court to make regulations for carrying out the provisions of this Chapter.
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