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Chanvirgouda Shivangouda Patil Vs. the District Magistrate - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case NumberAppeal from Order No. 47 of 1925
Judge
Reported in(1927)29BOMLR52
AppellantChanvirgouda Shivangouda Patil
RespondentThe District Magistrate
DispositionAppeal dismissed
Excerpt:
.....of the quantum of share which the lunatic has in the property.;the expression 'means to maintain' in section 88 has no relation to their source.;rule 18(ii) of the rules framed under the indian lunacy act is not ultra vires. - - in the present case the lunatic has only an undivided share in the joint family property, which, according to hindu law, cannot be called the estate of the lunatic, such as is contemplated by section 88. 7. it must be clearly understood that, in determining whether the appellant is legally bound to maintain the lunatic, we have to be guided by the provisions of hindu law......91 of the act on the basis that the father had a pension of rs. 216 per mensem in addition to the joint family property. (see local rules and orders under enactments applying to bombay, vol. ii, pp. 705 and 706.) the opponent (the father' of the lunatic) contended that he was not personally liable to maintain his insane son who was 'about twenty-five years old, that as the manager of the family his liability was limited to the income of the joint property which would represent the share of the son, and that the annual income of such property was about rs. 100. he contended that the income of the whole joint property was less than rs. 1,000, and that the lunatic should have been exempt according to law from paying any charges.3. on this application under section 88 of the act the learned.....
Judgment:

Shah, J.

1. This is an appeal under the Indian Lunacy Act (IV of 1912).

2. The District Magistrate of Dharwar made an application under Section 88 of the Act for an order for the payment of the cost of maintenance of the lunatic Shivangavda to the District Court of Dharwar against the father of the lunatic. It appears that a reception order was made by the District Magistrate with reference to Shivangavda under Section 14 of the Act on April 1, 1924, without any engagement by a relation to maintain him ; and in consequence the lunatic was detained in an asylum. The amount of maintenance claimed related to a period of three months (from April 1, to June 30, 1924). In the petition the lunatic was stated to have been discharged on June 30, 1924, though this fact is disputed before us. The amount was claimed at the rate of Rs. 1-2-0 per day according to the scale fixed under Rule 18 (ii) of the rules made under Section 91 of the Act on the basis that the father had a pension of Rs. 216 per mensem in addition to the joint family property. (See Local Rules and Orders under Enactments applying to Bombay, Vol. II, pp. 705 and 706.) The opponent (the father' of the lunatic) contended that he was not personally liable to maintain his insane son who was 'about twenty-five years old, that as the manager of the family his liability was limited to the income of the joint property which would represent the share of the son, and that the annual income of such property was about Rs. 100. He contended that the income of the whole joint property was less than Rs. 1,000, and that the lunatic should have been exempt according to law from paying any charges.

3. On this application under Section 88 of the Act the learned District Judge made a summary inquiry under Section 89 and passed an order for the payment of the costs of maintenance. He directed the opponent to pay annas eight per day for the period for which maintenance charges were claimed.

4. The original opponent has appealed. It is urged on his behalf that he is not a person legally bound to maintain his son within the meaning of Section 88, and that an order against him is, therefore, not competent. Further, it is urged that he is not liable to pay any higher rate in consequence of his personal income exceeding Rs. 1,000 a year under Rule 18 (ii) of the rules made by the Government in the exercise of the powers conferred in that behalf by Section 91 of the Act, and it is lastly contended that the rule is ultra vires in so far as it makes the father personally liable, when by law he is not so liable for the maintenance of the lunatic.

5. I do not think that there is any substance in these contentions of the appellant. On the admitted facts of this case, it is clear that the father is liable to maintain his son, as the manager of the joint family. Admittedly the son is joint with the father ; and there is joint family property in which the son has a share. Though the father is not under an absolute obligation to maintain his adult son, he is bound as the manager of the family to maintain him as a member of the undivided family. This position is clear, having regard to the observations in Savitribai v. Luximibai. I.L.R. (1878) 2 Bom. 573 et seq This obligation is independent of the consideration whether, on account of the lunacy of the son, the father as the manager of the family would be bound to maintain him on the ground that he would be disqualified from enforcing partition of his share from the joint family property during the period of lunacy. It is not necessary, therefore, to consider whether the insanity in this case is of such a nature as to constitute a disqualification under Hindu law to inherit as an heir or to seek partition of the family property. It is also unnecessary to consider whether the insanity should be congenital or not and whether even if not congenital it should be incurable, in order to disqualify the person suffering from it from inheriting as ah heir or from seeking partition of the property. The question, which has been raised in argument, that even temporary insanity is sufficient to create the disqualification and the further question whether such temporary disability to maintain himself, which does not amount to a disqualification, would render the father liable to maintain him during his illness, apart from the consideration of there being any joint family property, do not arise in this appeal. It is sufficient to invite the application of Section 88, if the father, as a manager of the joint family, is liable to maintain his son as a member of the family. In that case ho is a person legally bound to maintain the lunatic within the meaning of the section. It does not matter, for the purposes of Section 88, whether under the Hindu law his liability to maintain is limited to the extent of the joint family property in his hands. Then, under Section 89 the Court has to determine whether he has the means to maintain him. The scale of fees chargeable for maintenance has been prescribed by Rule 18 (ii). It is laid down in Ex parte Koster : In re Park (1885) 14 Q.B.D. 597 that the word 'means' in the expression 'means to pay' has no relation to their source; and a similiar view can reasonably be taken of the expression 'means to maintain.' Thus, if there is a person legally bound to maintain the lunatic and if he has the means to maintain him with or without reference to the joint family property, under the Indian Lunacy Act the Court can make an order for the costs of his maintenance in the asylum.

6. The Rule 18(ii), which prescribes the fees for maintenance, is not shown to be ultra vires in any way. It is restricted in its scope, for it applies to the case of a person legally liable to maintain him, only when the lunatic is a member of the family of that parson and is actually dependent on him. The lunatic would be dependent upon him when he (i. e. the lunatic) has no estate of his own applicable to his maintenance. In the present case the lunatic has only an undivided share in the joint family property, which, according to Hindu law, cannot be called the estate of the lunatic, such as is contemplated by Section 88.

7. It must be clearly understood that, in determining whether the appellant is legally bound to maintain the lunatic, we have to be guided by the provisions of Hindu law. But once that is determined, the further determination of the application is regulated by legislation, as regards the costs of the maintenance of a lunatic with reference to whom there has been a reception order without any engagement being taken from a friend or relative of the lunatic for the expenses under 9. 14 of the Act. The fees chargeable are regulated by the Act and the rules thereunder are in no sense dependent upon any rule of Hindu law. Rule 18 (ii) does not apply to every person who may be legally liable to maintain the lunatic, but is applicable to a person, of whose family the lunatic is a member and upon whom he is actually dependent.

8. Thus it seems to me that the order under appeal is not open to any legal objection : and neither party has raised any objection to its propriety otherwise.

9. I would, therefore, dismiss the appeal with costs.

Fawcett, J.

10. I agree.


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