1. This is an application tinder Sections 109 and 110, Civil P. C., for leave to appeal to the Federal Court.'
2. One Joshi Bhawani Shankar died in the year 1931 leaving a son Joshi Ram Kishna and a widow Shrimati Rukmani Bai. Joshi Ram Kishan became the owner of the property and we are informed that he has got a son, who has now attained majority, a daughter and a wife. Joshi Ram Kishan has been in possession of the property ever since his father's death in the year 1931. On 18th December 1942, Shrimati Rukmani Bai filed an application under Section 63, Lunacy Act, for an inquisition to be made that the appellant was of unsound mind and was incapable of managing his affairs, and praying for the appointment of a guardian of the latter's person and property. This application was heard by the then District Judge, Mr. Atma Charan, who granted the application and on 27th August 1943, authorised the Court of Wards to manage the property of Joshi Ram Kishan. Against that order Joshi Ram Kishan filed a First appeal from Order No. 307 of 1943, in this Court. During the pendency of the appeal he filed a certificate from Col. Vaidya, Civil Surgeon of Banaras. The certificate was in these terms :
'I have examined Joshi Ram Krishna Joshi, son of Joshi Bhawani Shankar today. I had examined him on three different occasions before this and had talked with him on his affairs and general matters. I am of opinion that his mental condition la good. He appeared to be rational and able to understand his affairs.'
The application filed by Shrimati Rukmani Bai under Section 63, Lunacy Act, was not accompanied by either an affidavit or a medical certificate. The result was that when the case came up for hearing in this Court on 31st January 1946, this Court allowed the appeal and sent the case back to the Court of the learned District Judge for a re-hearing of the case. The case was re-beard by the successor District Judge, as Mr. Atma Charan had been transferred, who also held on 20th September 1946, that Joshi Ram Kishan was a lunatic and was incapable of managing his property, and he again directed the Court of Wards to take possession of the property and manage the same.
3. It is not disputed that the property is of considerable value and the valuation mentioned in this Court is in the neighbourhood of Rs. 10 lacs.
4. Against the order passed by the learned District Judge a First Appeal from order No. 123 of 1917 was filed in this Court. When this case came up for hearing Joshi Ram Kishan appeared before the bench hearing the appeal and after considering the entire material-on the record the bench was of the opinion that it bad not been proved to its satisfaction that Joshi Ram Kishan was of unsound mind and was incapable of managing his affairs within the meaning of Section 65 (2), Lunacy Act.
5. Learned counsel has urged that the case raises a question of law of general importance inasmuch as the bench deciding this case differed from the decision of another bench of this Court in the case of Mt. Lalita Devi v. Nathuji : AIR1939All333 . It has been urged by learned counsel that the question whether a person, who does not know how many annas there are in a sum of Rs. 5 and cannot add up 5 plus 10; and does not know whether the sum of As. 0-9.0 is larger than the sum of 17 pies or not, must be held to be incapable of managing his property. These facts were considered by the bench hearing the appeal along with the impression formed by the learned Judges of the mental capacity of Joshi Ram Kishan, when he appeared before them, and they came to the conclusion, which must be deemed to be a conclusion on a question of fact, that Joshi Ram Kishan was not a person who could be said to be a lunatic or a person incapable of managing his property. The relevant portion of the judgment of one of the learned Judges, who delivered the main judgment in the case, when dealing with the previous decision of this Court, which had been cited as an authority, is as follows:
'The learned counsel for the respondent has placed great reliance on the case of this Court reported in Mt. Lalita Devi v. Nathuji : AIR1939All333 already referred to by me in another connection. There is hardly anything common between that case and the present one. There the same Dr. Col. Vaidya, had given a certificate testifying to the mental unsoundness of Nathuji Joshi and there was some other evidence also in support thereof. The Bench pointed out that for nearly 26 years Nathuji bad remained silent and did not speak to anybody and that 'this conduct alone showed the weakness of Nathuji's mind and his incapacity to manage his affairs.' It was also emphasised on the basis of the medical certificate that it was extremely difficult to extract any answers to the questions put to Nathuji and that very often the answers bad no relations to the question, and when Nathuji was inclined to answer, he took very long time to do so. It was further pointed out that in all transactions since the year 1908 Nathuji had been treated as a person of unsound mind, being represented in them by his brother Diwakarji. Even mortgages and leases were executed by Diwakarji for himself and as guardian of Nathuji fatir-ul aql and in the khewats of villages owned by the alleged lunatic, he was so described. The learned Judges there also though fit to call in the person for their observation, and they found him 'very nervous and fidgety' and that 'except simple questions he failed to answer, and even simple questions were answered after considerable delay and with much persuation.' They summed up their finding in the following words:
'Our observation of Nathuji and the notes of Col. Vaidya on the record full; satisfy us that he is incapable of managing his affairs in consequence of his mental weakness and unsoundness of mind.'
As has already been shown, in the present case, Col. Vaidya's certificate is just to the contrary and my own impressions after observing and examining the appellant in Court were just the reverse. This ruling, therefore, has no bearing on the present case.'
It would be seen, therefore, that there is really no conflict between the two decisions of this Court. We are not satisfied that the case raises any question of law of general importance which would entitle us to certify under Section 109, (c), Civil P. C. that the case is a fit one for appeal to the Federal Court.
6. Learned counsel has relied on Part 2 of Section 110 that the case involves, directly or indirectly, some claim or question to or respecting property of like amount or value. It has been urged by learned counsel that it being not disputed that the valuation of the property is much above Rs. 10,000 and this Court having set aside the order passed by the learned District Judge, it must be held that the applicant has a right of appeal to the Federal Court. The difficulty, however, that we feel is that it cannot be said that the applicant has any right or title in the property which is directly or indirectly involved in the decision of the question that came up for decision before the District Judge. The question for decision was whether Joshi Ram Kishan was or was not a lunatic. The decision of the question did not in any way depend upon the amount of property that he possessed, nor was the District Judge interested, at that stage, in going into the question of the extent of the property in the hands of Joshi Ram Kishan or his title thereto. An application under Section 63, Lunacy Act, can be filed by any person and it need not be filed by a person who is interested in the property of the lunatic. The only question for consideration by the District Judge is a question of the mental capacity of the so-called lunatic. No question of title to any property is involved and it cannot, therefore, be said that an order under the Lunacy Act affects, directly or indirectly, any claim to property. In our view the case does not come within Part 2 of Section 110, Civil P. C.
7. We, therefore, dismiss this application, but we make no order as to costs.