In Re: Mahomed Busheerul Hossein … vs Mahomed Busheerul Hossein on 3 September, 1881

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Calcutta High Court
In Re: Mahomed Busheerul Hossein … vs Mahomed Busheerul Hossein on 3 September, 1881
Equivalent citations: (1882) ILR 8 Cal 263
Author: Mitter
Bench: Mitter, Maclean


Mitter, J.

1. This is an appeal against an order of the District Judge of Patna, adjudging one Tajamul Hossein, a lunatic under Act XXXV of 1858, and appointing his son, the respondent before us, the manager of his estate. The appeal has been preferred by the daughters of the alleged lunatic. When this appeal was first argued before us, we adjourned it for a time to allow the alleged lunatic to prefer an appeal if he was so advised; but on the expiration of the time allowed no such appeal having been preferred, this appeal of the daughters was heard.

2. An objection in limine has been taken by the pleader on behalf of the respondent, that this appeal ought to be rejected on the ground that the daughters have no locus standi. We do not think this objection is valid.

3. The proceedings in the District Judge’s Court at Patna were initiated by an application made by the respondent under Section 3 of Act XXXV of 1858. It was alleged in that application, that the alleged lunatic was then residing at Patna with the applicant, his son, and the applicant’s mother, his wife. It was alleged that Tajamul Hossein is a resident of the district of Gya. A notice under Section 4 was ordered to be stuck up at the house of the lunatic in the district of Gya. A general notice was also issued inviting objections from persons interested. Therefore the daughters, appellants before us, appeared and opposed the petition. They were treated as parties to the proceeding, being allowed to cross-examine the witnesses examined in support of the application.

4. Under the circumstances stated above, we are of opinion that the daughters of the alleged lunatic have the right of appeal to this Court under Section 22 of Act XXXV of 1858. Although an absence of appeal on the part of the alleged lunatic raises some presumption in favour of the correctness of the lower Court’s order, yet a relative interested in the personal welfare of the alleged lunatic, and in the preservation of his estate, may appeal against the adjudication by the lower Court, if he was a party to the proceedings. In Sherman v. Schorn 24 W.R. 124 a relative of an alleged lunatic was allowed to appeal against an order adjudging him a lunatic under the Act in question. The provision in Section 4 of the Act, that “the Court may also direct a copy of such notice to be served upon any relative of the alleged lunatic,” shows that it was the intention of the. Legislature to confer the right of appeal upon such relatives who are made parties to the proceeding, or who are entitled to appear as such. We therefore overrule the preliminary objection.

5. Upon the merits it is quite clear to us that the enquiry in this case was quite insufficient. The petitioner and another witness were examined, and it is not satisfactorily established upon their evidence that Tajamul Hossein is of unsound mind and incapable of managing his affairs. The District Judge mainly relies upon two medical certificates which have not been regularly proved in this case. But putting aside that defect in the procedure, the medical opinions expressed in those two documents do not show that the alleged lunatic is of unsound mind and incapable of managing his affairs. The order of the lower Court, therefore, cannot stand, and we reverse it accordingly. The appellants are entitled to recover from the respondent the costs of this proceeding in this as well as in the lower Court. We assess the hearing fees at Rs. 50.

6. It may be noted here that the appellants before us objected to the jurisdiction of the lower Court to entertain the application in question on two grounds,–viz., (i) that Tajamul Hossein was not residing within its jurisdiction, and (ii) that he was not possessed of any property. As regards the first objection, it appeared to us that the District Judge has too readily assumed jurisdiction without sufficient inquiry. The other objection raises a difficult question of law. The District Judge is of opinion that a right to sue for the recovery of a property would be sufficient to confer jurisdiction under the Act. The question is not free from difficulty. However, it is not necessary for us to express any opinion upon it, as we reverse the decision of the lower Court upon the merits.

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