1. This is an appeal by the 1st respondent in O.P. No. 11 of 1971 on the file of the court of the District Judge, Srikakulam. The respondent herein filed O.P. No. 11 of 1971 under Section 71 of the Indian Lunacy Act for his being appointed as the property guardian of the property described in the A schedule of the petition belonging to the alleged lunatic The petitioner in the O.P. was examined as P.W. 1 and the appellant herein (1st respondent therein) was examined as R.W. 1. A few documents were marked in the case.
2. The facts necessary for the disposal of the appeal may be briefly stated. One Malathi Mahantiani, the alleged lunatic, is the widow of the brother of the petitioner Bhagirathi Mahanthi. In settlement of the widow's claim for maintenance, under the original of Exhibit A-1, on 26-6-1950 certain property was settled on Malalthi Mahanthiani. Under the terms of the settlement deed, an extent of four acres of wet land described in the A schedule to the petition was given to Malathi Mahantiani towards her maintenance for life. After her death, the property was to go back to the petitioner.
It would appear that at the instance of her brother M.P. No. 253 of 1967 on the file of the court of the First Class Magistrate, Sompeta was filed under Sections 5 and 6 of the Lunacy Act praying that a reception order might be passed with reference to Malathi. An order was passed on 23-8-1967 for receiving Malathi into the Mental Hospital at Visakhapatnam on the ground that she was a violent and dangerous lunatic. Exhibit B-2 is the certified copy of the petition and the order in M.P. No. 253 of 1967. As Malathi was in the Mental Hospital at Visakhapatnam her property given to her under Exhibit A-1 was in the possession of her brother. The lower court quite correctly fund that the petitioner could not be appointed as the guardian of the property of the alleged lunatic on the ground that his interests were adverse to those of the lunatic because he stood to benefit by her death, in that the property would revert to him.
The lower Court also found that her brother the 1st respondent in the petition, was also not a fit and proper person to be appointed as a guardian. However, that court on an oral examination of Malathi in court had stated that it was satisfied that she was a lunatic incapable of looking after herself and her affairs. The result was that the Court appointed an Advocate of Sompeta as Manager of the A schedule properties belonging to the alleged lunatic. It is the order of the District Court as made above that is now challenged by the brother of the alleged lunatic.
3. The learned counsel contended that the application under Section 71 filed by the petitioner was incompetent inasmuch as there was no inquisition and there was no judicial finding that Malathi is a lunatic. It is contended that in the absence of an inquisition, the Court had no jurisdiction to appoint any receiver or manager for the properties of the alleged lunatic. The learned counsel contended that the fact that there was a magisterial reception order would not clothe the District Court with jurisdiction to deal with the properties of the alleged lunatic by appointing a guardian. It is therefore contended that the impugned order of the Court below was made without jurisdiction. I find considerable force in the submission of the learned counsel of the appellant.
4. Chapter V of the Lunacy Act provides for proceedings in lunacy outside Presidency towns. Under Section 62 the District Court is empowered upon an application to direct the inquisition for the purpose of ascertaining whether a person residing within its jurisdiction is of unsound mind and incapable of managing himself and his affairs. Section 63 provides for the persons who could make such an application under Section 62.
Under Section 65, the District Court, upon the completion of the inquisition shall determine whether the alleged lunatic is of unsound mind and incapable of managing himself and his affairs. It may also come to a special finding that such an alleged lunatic is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself and others. Section 67 provides that the court may make an order for the custody of lunatics so found by inquisition and management of their estates. Section 68 provides for the Court of Wards to be authorised in certain cases to take charge of the estate of the lunatic. Section 69 empowers the District Court to direct the Collector to take charge of the person and estate of the lunatic in certain cases. Under Section 71, in cases not covered by Sections 68 and 69, the District Court shall appoint a manager of the estate of the lunatic and also may appoint a guardian of his person.
It is quite manifest from a reading of the above provisions that it is a prerequisite to the exercise of powers under Sections 67 to 71 of the Act that there should be an inquisition as provided under Section 62 of the Act. In other words, an inquisition and a finding that the alleged lunatic is of unsound mind so as to be incapable of managing his affairs is the sine quo non for the exercise of judicial powers over the person and estate of the lunatic. The fact that there was a reception order by a Magistrate under Sections 5 and 6 does not dispense with an inquisition by the District Court when the question is whether a certain person is an alleged lunatic.
5. The learned counsel for the respondent herein contended that in this case as there is no question about the lunacy of Malathi, the District Court committed no irregularity in the exercise of its jurisdiction under chapter V of the Act, as both the petitioner and the 1st respondent in the lower court admitted the lunacy of Malathi. The court also examined the alleged lunatic and was satisfied that she was a lunatic incapable of managing her own affairs. Apparently the contention is plausible. Where the question is whether a person is lunatic or not, that cannot be determined on the admission of the parties before the court for the simple reason that two persons ranging themselves as petitioner and respondent might very well collude and may that X is a lunatic and get receiver or manager appointed for the property of X even without his knowledge. To countenance such a thing would lay open the road to very mischievous and dangerous consequences. It is a very serious thing to dub a person as a lunatic and if the court were to merely accept without any inquiry into the question as contemplated by the provisions of Chapter V of the Lunacy Act, it would be acting without jurisdiction. The procedure prescribed under Sections 40, 41 and 42 of the Act must be followed.
6. The district Court apparently thought that it would satisfy the requirements of the law if the Court had orally examined the alleged lunatic.
7. I am clearly of opinion, that neither the admission of parties to the proceedings nor a mere oral inquiry on the part of the District Court would clothe that Court with power to appoint a manager for the estate of the alleged lunatic without the process of inquisition as provided in the Act being gone through. As this was not done in this case, I must hold that the District Court had wrongly exercised its jurisdiction under Section 71 of the Act. The order under appeal is therefore set aside. This order shall not in any way preclude the parties from taking appropriate proceedings under the Lunacy Act if so advised.
8. The appeal is accordingly allowed, but in the circumstances of the case, there will be no order as to costs.
9. Appeal allowed.