JUDGMENT
Raj Kishore Prasad, J.
1. The objectors have appealed, under Section 83 of the Indian Lunacy Act. 1912, (Act IV of 1912) hereinafter referred to as the ‘Act’ from the order dated 25-7-1966 passed by the learned District Judge, Muzaf-farpur, under Section 65, Clause (2) of the Act, declaring that Chaturbhuj Singh was a lunatic within the meaning of Section 3(5) of the Act, and, as such, the applicant-respondent, Gulabo Kuer, who was his own sister, had the right to file the application under Section 62 of the Act and the lunatic being incapable to manage his properties and to take care of himself, his sister, the applicant-respondent, Gulabo Kuer, should be appointed guardian of the person and manager of the properties of the lunatic.
2. It may be mentioned at this very stage that the lunatic, Chaturbhuj Singh, died after the above order, during the pendency of the present appeal, and therefore, the learned District Judge, on 3-1-1967 dropped the lunacy proceeding and the applicant-respondent who was appointed guardian of the person and properties of the lunatic was discharged,
3. The following genealogy will be useful in understanding the relationship of the parties :–
MONORI SINGH
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___________________________________
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Rangi Singh Bulli Singh
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Objectors Bechu Singh
(Appellants) |
Ramnandan Singh
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____________________________________
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Mahesh Singh Gulabo Kuer Chaturbhuj
(daughter) D.
(Appellant_respondent) (Lunatic.)
Disputed.
The above genealogy is admitted by the objectors; and the only dispute was that Gulabo Kuer was not the daughter of Ramnandan Singh and the own sister of Chaturbhuj Singh but she was the daughter of one Surajnandan of the objectors’ branch. The Court below, however, has found on the evidence, that Gulabo Kuer was the daughter of Ramnandan Singh and the own sister of Chaturbhuj whose other brother Mahesh Singh predeceased him. This finding has been challenged before this Court but on the evidence it must be held that Gulabo Kuer, applicant-respondent, is the own sister of Chaturbhuj Singh.
4. In 1953, Sarjug Singh and his brother Parsuram Singh and their first cousin, Bindeshwari Singh, who are the objectors-appellants, belonging to the branch of Rangi Singh, took a deed of gift, Ext. A from Chaturbhuj Singh in respect of some properties which are mentioned in the application under section 62 of the Act. Subsequently a titled suit Title Suit No. 135 of 1953 was instituted on 17-11-1953 by Surajnandan Singh of objectors’ branch. To that suit the present appellants were defendants and Chaturbhuj was also a party. In that suit Surajnandan Singh asked for being given a share in several properties including the properties covered by the gift. Ext. A which was executed by Chaturbhuj in favour of the appellants. The suit was dismissed on 25-12-1955. Thereafter, Surajnandan Singh, it was alleged by the appellants, set up Gulabo Kuer. respondent, who was alleged to be his daughter, and she filed Guardianship Case No. 64 of 1961 on 20-9-1961. The said guardianship case was dismissed on 30-3-1962 on which date the present application under Section 62 of the Act was filed by Gulabo Kuer, in which she stated she is the full sister of Chaturbhuj Singh but the latter is deaf, dumb and idiot and incapable of managing his affairs and incapable of looking up himself and his safety since his birth and he was looked after by his mother after the death of Ramnandan Singh, his father. She further alleged that
after the death of the mother of Chatur-bhuj, she herself used to reside in her Naihar and she took care of Chaturbhuj Singh as well as of his properties. It was further said that a fraudulent deed of gift was taken by the objectors appellants, from Chaturbhuj Singh and the life of Chaturbhuj Singh was in constant danger, and, therefore, it was necessary to start inquisition proceeding under the Act for the purpose of ascertaining whether Chaturbhuj Singh was an idiot and incapable of managing himself and his properties. She also said at present the said lunatic was in the custody of the objectors and therefore, it was prayed that the court may be pleased to direct an inquisition for the purpose of ascertaining whether Chaturbhuj is of unsound mind and incapable of managing himself and his affairs.
5. The First Additional District Judge, before whom the proceeding was pending, directed the alleged lunatic Chaturbhuj to be produced and ultimately he was produced on 6-1-1964 and then the learned Judge directed the alleged lunatic to be sent to the jail for medical observation for ten days by the Civil Surgeon, Muzaffarpur, who was asked to send a report to him as regards the mental capacity of the man. The Civil Surgeon, who was in this case examined as A. W. 5, submitted his report on 23-1-1964, which was subsequently marked as Ext. 1. It further appears from the order sheet of the case that on 24-3-1964 the learned Additional District Judge, who had then seizin of the case, called the alleged lunatic, Chaturbhuj Singh, in his Chambers for a few minutes and asked him his name and called him three times but he neither spoke anything nor looked towards him, but kept looking at the man who had brought him into his Chambers with his Chaprasi. Subsequently, the case was heard and witnesses were examined on both sides with the result that the learned District Judge passed the order under appeal, as stated above.
6. It was contended by Mr. Mangal Prasad Mishra, who appeared for the appellants, that the order under appeal is wrong because on the evidence Chaturbhuj, could not be declared lunatic. He further submitted that the application filed by Gulabo Kuer under Section 62 of the Act should have been supported by an affidavit but it was not so done and, therefore, on this ground also the application should have been disallowed. It was further urged that the report, Ext. 1 of the Civil Surgeon was not in Form III of Schedule I of the Act, as required by Section 18(1) of the Act, and, therefore, it should have been ignored. It was also argued that in the report, Ext. 1 the Civil Surgeon has definitely stated that Cha
turbhuj was never excited or violent during observation, which clearly shows that Chaturbhuj was not a lunatic.
7. Mr. Shiva Nandan Ray, who appeared for the respondent took a preliminary objection that the appeal not having been filed by the lunatic, who was really aggrieved by the order under appeal was not maintainable at the instance of the objector who could not be said to be aggrieved by it. On merit he supported the order under appeal.
8. As regards the preliminary objection, I think it has no force. Appeal lies to the High Court under Section 83 of the Act, which is to the following effect:
“83 An appeal shall lie to the High Court from any order made by a District Court under this Chapter.”
Chapter V deals with proceedings in lunacy outside Presidency Towns. It contains Section 62 to Section 83. The order under appeal was passed under Section 65(2) of the Act and, therefore, an appeal against an order under Section 65(2) will lie to the High Court. Section 83 does not speak or specify the person or persons who can appeal under Section 83 from such an order. Section 83 is in general terms conferring the right of appeal from any order passed by a District Court, which, in the recent case, in view of Section 2(2) of the Act, which defines “District Court” is the District Judge of the district. When the person who is to appeal under Section 83 is not specifically mentioned therein, it means that any person, who is a party to the Lunacy Case and who is aggrieved by any order passed under Chapter V of the Act, is entitled to appeal. It is true that in Joshi Ram Krishan v. Mt. Rukmini Bai, AIR 1949 All 449 = ILR (1950) All 396 relied upon by Mr. Ray, the appellant was the lunatic himself; but that does not mean that only the lunatic has the right to appeal under Section 83 of the Act. In my opinion, any person, who is aggrieved by any order passed under Chapter V of the Act by a District Judge has the right to appeal against such order to the High Court under Section 83. No doubt, the lunatic is the most aggrieved person, but he being a lunatic, is not capable of understanding the legal implication of the order under appeal and, therefore, he is not expected to file an appeal. Objectors were interested in getting Chaturbhuj Singh declared not lunatic, because they had earlier got a gift executed in their favour by Chaturbhuj Singh. It is obvious, therefore, that the objectors also aggrieved by the order under appeal and as such, they had the right to appeal under Section 83 of the Act, I, therefore, hold that the appeal by the objectors appellants is maintainable.
9. It is true that in Mahomed Yaqub v. Nazir Ahmad, AIR 1920 All 80 = ILR
40 All 504 it was held by a Division Bench that ordinarily an application for an inquisition should be supported by affidavit or by the applicant tendering himself for examination to the Judge on oath in support of the allegations in his application and further that the application ought to be supported by some medical evidence in the nature of a certificate of some doctor who has had a reasonable opportunity of seeing the condition of the alleged invalid. But on reading Section 62 of the Act, it appears that it does not require an application under Section 62 to be accompanied either by an affidavit or a medical certificate. Certainly if it is supported by a medical certificate and by an affidavit by the applicant then the application will have great weight; but for the omission of the applicant to file an affidavit or a medical certificate along with the application the application cannot be said to be not maintainable. Section 62 says inter alia that “. . . .the District Court 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”. In the instant case, the application was made by the respondent, who on the finding of the learned District Judge, was the own sister of the lunatic. Later on she was examined as a witness, A. W. 1 and she pledged her oath in support of her statement in her application under Section 62 of the Act. Furthermore, at the instance of the District Judge, the alleged lunatic was kept under observation by the Civil Surgeon of the district and he submitted his report to the effect that Chaturbhuj Singb, who was kept under observation by him for ten days, is deaf and dumb and feeble minded; but he follows the daily routine of life as usual and can understand and obey simple things by gesture (like standing, sitting, going to kitchen for food, etc.) made to him. The Civil Surgeon also said as said above, that he was never excited or violent during observation. In the case, just mentioned, it was also held that in conducting an application for an inquisition under the Lunacy Act there ought to be a careful and thorough preliminary enquiry and the judge ought to satisfy himself that there is real ground for an inquisition and he should seek some personal interview with the alleged insane to satisfy himself that there is real ground for supposing that there is something abnormal in the mental condition of the person which might bring him within the Lunacy Act. In the instant case, at the initial stage, as mentioned already the Additional District Judge on 24-3-1964 had personal interview with the alleged insane in his Chambers in order to satisfy himself if there is a real
ground for supposing that there is something abnormal in the mental condition of Chaturbhuj Singh which might bring him within the Lunacy Act. He noticed abnormalities in him which he recorded in his ordersheet of 24-3-1964. It may be mentioned that the objectors-appellants were asked to produce Chaturbhuj Singh in court but they avoided to do so on some ground or other for a long time and then ultimately he was produced on 24-3-1964. Preliminary enquiry was, therefore, made before ordering an inquisition. In this view of the matter, it cannot be said that the application made by the respondent under Section 62 of the Act was not maintainable.
10. As regards the question as to whether the finding of the learned District Judge that Chaturbhuj Singh was a lunatic was correct or not. Mr. Mishra placed number of authorities in support of his contention that on the medical report, as it is, Chaturbhuj Singh could not be said to be a lunatic within the meaning of Section 3(5) of the Act, Before, dealing with the cases cited, it would be useful first to see the definition of the word, “lunatic” as given in Section 3(5) of the Act, which is as below:
“3. In this Act, unless there is anything
repugnant in the subject or context.
** ** **
(5) “Lunatic” means an idiot or person of unsound mind.”
The word ‘idiot’ has not been defined in the Act, and, therefore for a proper understanding of the word “idiot” one has to look to the cases cited on behalf of both the parties for seeking guidance.
11. In Sonabati Devi v. Narayan Chandra Upadhya, AIR 1935 Pat 423, Courtney Terrell, C. J. who delivered the judgment of the court and with whom Agarwala J. agreed held that the proper test of insanity is not the beliefs that the person concerned may entertain but the conduct exhibited by that person. His Lordship, at page 424, observed:
“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 would 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.”
12. In Mt. Teka Devi v. Gopal Das, AIR 1930 Lah 289 Mr. Justice Tek Chand J., sitting singly, held that it is only with lunatics as defined in Section 3(5) that the Act is concerned and that the Court
must come to an independent decision as to whether the person alleged to be incapable of managing himself or his affairs is really a “lunatic” and the procedure laid down by the legislature for conduct-Ing an enquiry into the matter must be strictly followed. The following observation of his Lordship, at page 291, can appropriately be read here:–
“Now in assuming jurisdiction under the Lunacy Act, the court must, first of all, keep in view the distinction between mere weakness of intellect and ‘lunatic’ as understood in the Act. In Section 3(5) a ‘lunatic’ is denned as meaning an “idiot or a person of unsound mind” and it is hardly necessary to point out that it is only with lunatics as denned above, that the Act is concerned. It is, therefore, the duty of the Court, before, proceeding further, to 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 under restraint. It might deprive him for a time, or for ever 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 light-heartedly with this important question, and it should not consider itself relieved of its responsibility by the mere circumstance that some or all of the relatives of the person concerned have declared that he is ‘lunatic’. It may be that these relatives honestly but mistakenly believe him to be of unsound mind, whereas in reality he is not so; or it may be, that while disagreeing among themselves in respect of certain other matters, they all have evil designs on his property and have made common cause to deprive him of its possession or management. There might be cases in which a person may, as remarked by Lord Justice James in In re E. S. (1876) 4 Ch. D 301 (a supposed lunatic) require protection against his relative quite as much as against other persons. Every Court exercising jurisdiction in lunacy cannot, therefore, be too cautious in this matter, and it must bear in mind the weighty observations of Lord Davey, who observed while delivering the judgment of their Lordships of the Judicial Committee in In re, John Mclaughlin, 1905 AC 343, that:
“the interest of the person alleged to be of unsound mind …. ought to be zealously protected against any attempt of
designing people, acting innocently but mistakenly to place either their persons or their property in restraint”
13. In Ganga Bhavanamma v. Soma-raju, AIR 1957 Andh Pra 938, Subba Rao, C. J. as he then was who delivered the judgment of the court on behalf of self and on behalf of Satyanarayana Raju, J. followed the observation of Tek Chand J. in AIR 1930 Lah 289 referred to above, and held that though Section 3(5) of the Act defines ‘lunatic’ as an idiot or a person of unsound mind, the said words have not been defined but both these terms indicate an abnormal state of mind as distinguished from weakness of mind or senility following old age and that a man of weak mental strength cannot be called an idiot or a man of unsound mind; and the Act is not intended to protect dull-witted people but only those who suffer from a mental disorder or derangement of the mind and, referred to Hals-bury’s Laws of England Second Edition, Vol. 21, which was relied upon in this Court also by Mr. Ray. which will be referred to hereinafter.
14. In AIR 1949 All 449 a Division Bench presided over by Raghubar Dayal, J. as he then was, and Mushtaq Ahmad. J. considered the effect of an order under Section 65(2) of the Act. The main judgment of the Court was delivered by Mushtaq Ahmad, J. with whom Raghubar Dayal J. also agreed, but added a few words of his own separately. There the appellant was the lunatic himself, who had been held to be of unsound mind and incapable of managing his affairs within the meaning of Section 65(2) of the Act. In that case, what is meant by ‘unsound-ness of mind’ has been explained, which would be clear from the placitum (b) which is below hi extenso:
“Unsoundness of mind implies some unusual feature of the mind as has tended to make it different from the normal and has in effect impaired the man’s capacity to look after his affairs in a manner in which another person without such mental irregularity would be able to do in the matter of his own. The idea suggests some derangement of the mind, whatever be its degree, and it is not to be confused with or taken as analogous to a mere mental weakness or lack of intelligence. A man may find it difficult to answer questions of particular class if he intelligently answers questions of various other sorts concerning himself, his familv and property, he cannot be classed with men of unsound mind being unable to manage their affairs. If a man is able to understand and answer questions on various matters except those relating to arithmetical calculations, he cannot be regarded as mentally unsound, although he would be held as having a weak or undeveloped mind.”
In this case also the observation quoted above of Mr. Justice Tek Chand in AIR 1930 Lah 289 was read with approval. His Lordship Mr. Justice Raghubar Dayal in his separate but concurrent judgment, held that a person with undeveloped mind or with feeble mind is not necessarily a person of unsound mind and further observed at page 455, as below:
“I should think that unsoundness of mind can be said to be dependent on certain states of the mind and on the outward conduct of the person due to his particular mental condition. It should have some connection with the derangement of mind which may be said to be a state of a disordered mind. If the mind is not in any way deranged, but is merely weak or undeveloped, it cannot be said to be an unsound mind.”
15. In Halsbury’s Laws of England, Second Edition, Vol. 21 Part II. Section 1, paragraph 471 page 272 which deals with “Persons of unsound mind” the said expression has been defined to the following effect:–
“Unsoundness of mind, or as it is some times styled lunacy or insanity, may be shortly defined as a defect of 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.”
16. In Mahipati v. Mt. Changuna, AIR 1934 Nag 27, Pollock A. J. C, sitting singly, held that a person who is not sufficiently intelligent to manage his own affairs is not necessarily of unsound mind and under Section 65 there must be a finding that the alleged lunatic is of unsound mind and incapable of managing himself and his affairs and the High Court has power to interfere to correct a wrong finding under Section 65(2) of the Act.
17. The principles which can be extracted from the above decisions may be summed up thus:–
The Court in assuming jurisdiction under the Lunacy Act, must first of all, keep in view the distinction between mere weakness of intellect and ‘lunatic’ as understood in the Act. It is, therefore, the duty of the Court, before proceeding further, to determine judicially whether the person alleged to be incapable of managing himself or his affairs, is really a ‘lunatic’ in this sense. 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 light-heartedly with this important question and it should not consider itself relieved of its responsibility by the mere circumstance that some or all of the relatives of the persons concerned have declared that he is lunatic. It may be that these relatives honestly, but mistakenly believe him to be of unsound mind, whereas in reality he is not so; or it may be that while disagreeing among themselves in respect of certain other matters, they all have evil designs on his property and have made common cause to deprive him of his possession or management. The interest of the persons, alleged to be of unsound mind, therefore ought to be zealously protected against any attempt of designing people, acting innocently but mistakenly to place either their persons or their property in restraint.
Section 3(5) of the Act defines ‘lunatic’ as an idiot or a person of unsound mind; but the said words have not been defined and both these terms indicate an abnormal state of mind as distinguished from weakness of mind or senility following old age and that a man of weak mental strength cannot be called an idiot or a man of unsound mind; and the Act is not intended to protect dull-witted people but only those who suffer from a mental disorder or derangement of the mind.
‘Unsoundness of mind’ implies some unusual feature of the mind as has tended to make it different from the normal and has in effect impaired the man’s capacity to look after his affairs in a manner in which another person without such mental irregularity would be able to do in the matter of his own. The idea suggests some derangement of the mind, whatever be its degree, and it is not to be confused with or taken as analogous to a mere mental weakness or lack of intelligence. A man may find it difficult to answer questions of particular class but if he intelligently answers questions of various other sorts concerning himself, his family and property, he cannot be classed with men of unsound mind being unable to, manage their affairs. If a man is able to understand and answer questions on various matters except those relating to
arithmetical calculations, he cannot be regarded as mentally unsound, although he would be held as having a weak or undeveloped mind.
‘Unsoundness of mind’ or as it is some times styled lunacy or insanity, may be shortly defined as a defect of 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 or 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 therefore, 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. A person who is not sufficiently intelligent to manage his own affairs, is not necessarily of unsound mind. ‘Unsoundness of mind’ can be defined on certain states of the mind and on the outward conduct of the person due to his particular mental condition. It should have some connection with the derangement of mind which may be said to be a state of disordered mind. If the mind is not in any way deranged, but is merely weak or undeveloped, it cannot be said to be an unsound mind.
No person can have direct experience of the mind of another, proper test of insanity is conduct. The proper test for insanity is not the beliefs that the person concerned may entertain but the conduct exhibited by that person. Under Section 65(2) of the Act, therefore, there must be a finding that the alleged lunatic is of unsound mind and incapable of managing himself and his affairs and the High Court has power to interfere under Section 83 of the Act to correct a wrong finding under Section 65(2) of the Act.
18. In the light of the above principles, therefore, let us see how far the finding of the learned District Judge holding that Chaturbhuj was a ‘lunatic’ within the meaning of Section 3(5) of the Act was justified and legal. The materials on the record, which will be referred to hereinafter, in my opinion, prove beyond any reasonable doubt that Chaturbhuj was a ‘lunatic’ as understood in the Act.
19. The learned Additional District Judge, as mentioned earlier also in paragraph 9 of this judgment, examined Chaturbhuj Singh and had him produced before him in his Chambers for some personal interview and what might be called a mild type of examination by putting questions to him. He put questions to him to which Chaturbhuj kept quiet and indifferent. As will appear from order No. 44 recorded later on 24-3-1964 that the learned Additional District Judge called the alleged lunatic Chaturbhuj Singh for a few minutes and asked him his name and called him three times but he neither spoke anything nor looked towards him, but kept looking at the man who had brought him into his Chambers with his Chaprasi. This conduct exhibited by Chaturbhuj Singh surely indicated an abnormal state of mind and some unusual feature of the mind as distinguished from weakness of mind or from a man of weak mental strength. This conduct of Chaturbhuj Singh prima facie showed that he was suffering from some mental disorder or derangement of the mind and this impaired his capacity to look after himself and his affairs in a manner in which another person without such mental irregularity would be able to do in the matter of his own. The inability of Chaturbhuj to understand and answer simple questions, like asking his name, and his inability to look at the Judge when called three times, were clear enough to indicate that Chaturbhuj was of unsound mind. After this preliminary enquiry by the Additional District Judge, he directed the inquisition in question.
20. Thereafter the Civil Surgeon, who submitted his report, Ext. 1 and who was examined as A. W. 5 no doubt, mentioned that Ghaturbhuj, who was kept under observation in the jail by him for ten days, is deaf and dumb by birth and feeble minded but he followed the daily-routine of life as usual and can understand and obey simple things by gesture (like standing, sitting, going to kitchen for food, etc.) made to him and that he was never excited or violent during observation, stated in his evidence that Chaturbhuj was incapable of looking after his properties and that he was a born idiot. It is true that the Civil Surgeon admitted that he had not specifically mentioned in his report that Chaturbhuj was a born idiot, but he gave reasons which led him to the conclusion that Chaturbhuj was a born idiot. The Civil Surgeon stated that an idiot has no initiative of any kind except for the vegetable life. He further stated that he spent about two hours on the daily observation of Chaturbhuj Singh and denied the suggestion that his report was wrong. Much emphasis, however, was laid on the last statement of the Civil
Surgeon in his report, Ext. 1 that he did not find him excited or violent during observation, and relying on it, it was contended that Chaturbhuj was not a lunatic at all. The fact that Chaturbhuj did not become excited or violent during observation by the Civil Surgeon only indicates that Chaturbhuj was not a lunatic of violent type. Derangement of the mind may be of different degrees. The outward conduct of Chaturbhuj Singh, referred to above, was sufficient to show that he was a lunatic of a mild and quiet type, but nevertheless the above unusual feature of the mind implied unsoundness of his mind and not a weak or undeveloped mind. The learned District Judge, therefore, after taking into consideration the opinion of the learned Additional District Judge, above mentioned who had personal interview with Chaturbhuj Singh and after a consideration of the evidence of the Civil Surgeon, A. W. 5 accepted the evidence of the applicant-respondent, A. W. 1 who was the own sister of Chaturbhuj and, her witnesses, A. Ws. 2 to 4 who were all of village Kamalpura where Chaturbhuj Singh resided and came to the conclusion that he had no hesitation to hold that Chaturbhuj Singh was an idiot and, as such, a lunatic as contemplated by the Act.
21. It is true, as observed by Tek Chand, J. in AIR 1930 Lah 289, that the finding of the District Judge, who is to determine judicially whether Chaturbhuj Singh alleged to be incapable of managing himself or his affairs, was really lunatic has got very far reaching consequences but in this case, the learned District Judge has kept in view the duty of the Court to determine judicially as required by Section 65(2) of the Act. I am, therefore, unable to accede to the contention of the appellants that judicial determination by the learned District Judge of the lunacy of Chaturbhuj was not correct.
22. It may be mentioned here that the objectors were most interested in getting Chaturbhuj Singh declared not lunatic and in getting the application of the respondent under Section 62 of the Act rejected, because they had earlier, as mentioned before, taken a deed of gift from this lunatic Chaturbhuj Singh. The learned District Judge has observed that from the endorsement made by the Sub-Registrar on the deed of gift, Ext. A it appears that the admission of the execution was indicated probably by signs and gestures. In these circumstances, the validity of Ext. A would be in dispute and for this reason the objectors are very much interested in order to get Ext. A upheld and declared valid to see that Chaturbhuj was not declared lunatic. On the finding of the learned District Judge, the deed of gift, Ext. A would now be
ineffective to give any title to the appellants to the properties covered by the deed of gift, Ext. A. I therefore, hold that the finding of the learned District Judge that Chaturbhuj was an idiot and as such a ‘lunatic’ under the Act and as such incapable to looking after himself and his affairs is justified and legal and accordingly I affirm it.
23. I may also deal with the contention of the appellants that as the medical certificate is not in Form III of Schedule I of the Act, as required by Section 18{1) of the Act, it is of no value. It was contended on behalf of the respondent, that Section 18 of the Act, does not apply to a case where a proceeding for inquisition has been instituted against the lunatic under Section 62 of the Act by any person who is authorised under Section 63, of the Act to make that application. Section 18 occurs under Chapter II, which deals with ‘Reception of the Lunatic’. Powers have been given to a Magistrate, within the local limits of whose jurisdiction, the alleged lunatic resides to entertain an application for reception order. Even assuming that Section 18 applies to a proceeding to direct inquisition under Section 62 of Chapter V also, the omission to give the medical certificate in Form III of Schedule I contemplated by Section 18(1) of the Act does not, in my opinion, render the medical certificate valueless and on account of that omission, it cannot be thrown out. But, in the instant case, the proceeding was started under Chapter V which deals with proceedings in lunacy outside Presidency Towns and with inquisition. The learned District Judge, it was conceded, had the power to send the lunatic for observation to jail and to call for a report from the Civil Surgeon of the district. For this reason, the report of the Civil Surgeon A. W. 5, cannot be said to be illegal or contrary to law, simply because it is not in accordance with Section 18 of the Act which only deals with medical certificate. The learned District Judge, has, therefore, rightly relied on the medical certificate, Ext. 1 of the Civil Surgeon, A. W. 5, The objection, therefore, has no force.
24. The next question to be considered is, what is the effect of the death of the lunatic, Chaturbhuj Singh, after the order under appeal had been passed during the pendency of the appeal in this court? This question came up for consideration before a Divisional Bench of the Nagpur High Court in Bhaoorao v. Chandrabhagabai, ILR (1948) Nag 465 = AIR 1949 Nag 108, which was presided over by Mr. Justice Pollock and Mr. Justice Hidayatullah, as he then was, The judgment of the Court was delivered by Hidayatullah, J. as he then was and before their Lordships also, as here, it
was contended by the respondent that the appeal should be dismissed. In rejecting that contention, his Lordship Hidayat-ullah, J. at page 467 (of ILR) = (at p. 109 of AIR) observed:–
“There is no provision in Chapter V of the Indian Lunacy Act for the removal of a guardian or manager of a lunatic when the lunatic dies. In this respect the provisions of the Lunacy Act resemble those of the Guardians and Wards Act. But a manager can continue only so long as lunatic is alive. When the lunatic dies the lunacy jurisdiction comes to an end and the court must pass some order about the property in the hands of the manager. If the title to the property be in dispute the Court may either decide the issue or ask the manager to file an interpleader suit. But which ever course is followed, the order of the Court will be referable to the jurisdiction exercised over the property of the lunatic under Chapter V and the order must be deemed to be an order under that Chapter. Under Section 83 of the Indian Lunacy Act an appeal lies against an order made under Chapter V of the Act.”
25. The principle, therefore, which would apply here is as below:
The manager appointed under the Lunacy Act of the properties of the lunatic can continue only so long as the lunatic is alive. When the lunatic dies the lunacy proceeding comes to an end but the Court must pass some order about the property in the hands of the manager. .Such an order of the Court will be referable to its jurisdiction exercised over the property of the lunatic under Chapter V of the Act and, therefore, the order must be deemed to be an order under that Chapter, and, an appeal against such an order would lie under Section 83 of the Act.
26. In view of the above, I think that the appeal cannot be dismissed on the mere ground that the lunatic has died during the pendency of this appeal. The order which has been passed by the learned District Judge, on 3-1-1967, as will appear from Order No. 108 is that the respondent was discharged and the proceeding was dropped. This order, in my opinion, is correct and legal. I, therefore, affirm the order of the District Judge to the effect that the respondent is discharged from the guardianship of the lunatic as the lunatic has died and with his death the lunacy proceeding has come to an end.
27. It follows, therefore, that the ap
peal fails, and is dismissed and the judg
ment of the court below is affirmed, but,
in the circumstances of the case, there
will be no order for costs of this Court.