1. This appeal arises out of proceedings under the Lunacy Act No. IV of 1912. They began by an application filed in the Court of the District Judge of Ghazipur by' one Murlidhar Pande on the 31st of March 1920. Murlidhar Pande alleged that he was a relation of Lachmi Pande and that Lachmi Pande was of unsound mind within the meaning of the Act and incapable of managing his property, and in the interests of the minors, asked to be appointed guardian of his estate. This application was immediately followed by at least two more applications by other relations of Lachmi Pande. Mata Dayal Pande was one. The procedure adopted by the then Judge of Ghazipur was not according to law. On these applicants coming before him, he examined them and found that they were all agreed that Lachmi Pande was a lunatic and they suggested that Mahadeo Prasad, who seems to have been a person of some position, was a suitable person to be appointed the guardian of the lunatic and his property. He, however, refused to accept the appointment but said that he was willing to enquire into the state of the mind of Lachmi Pande and suggest what would be the best course to adopt. The Court appears to Lave appointed him as a sort of arbitrator and directed him to furnish his report to the Court, which is described by the learned Judge as an award in which he found that Lachmi Pande was a lunatic and suggested that two persons, namely Ramdhani and Murli, who are both near relations of Lachmi Pande, might be appointed guardians, and on the 4th of June passed the following order:
Read award of Mahadeo Pande appointing Ramdhani and Murli as guardians. Objections by Shyama and Mata Dayal to the effect that Murlidhar has some secret adverse interest. None object to Ramdhani's appointment. I, therefore, provisionally appoint Ramdhani as guardian of the lunatic for the present for adjudication of Lachmi Pande's lunacy. I direct Ramdhani to produce the lunatic in Court to satisfy me that he (Lachmi) is really a lunatic, I invite attention to orders dated 14th April 1920 and 14th May 1920 which remain yet uncomplied with. I fix 15th June 1920 for evidence and production of Lachmi Pande.
2. By the 15th of June the learned District Judge had been transferred and the matter same up before his successor, who contented himself with questioning Lachmi Pande who had appeared before him, and without taking any other evidence came to a finding which is not very happlily worded. He says:--' It may be that this man is of weak intellect. It is difficult to say that he is a lunatic.' Later on he goes on to say: 'As all the applicants are agreed that Lachmi Pande is a lunatic and as I also think that although not quite a lunatic, he is incapable of looking after his own interest owing to weak intellect, I declare him to be lunatic.' We think that what the learned District Judge meant to find was that Lachmi Pande came within the description in Section 65(2) of the Act, namely, that Lachmi Pande was 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 or to others. That this was his opinion, we think, is proved by the fact that be ultimately appointed one Mata Dayal guardian of Laohmi Pande's property only. He chose Mata Dayal because of the marked preference which Lachmi Pande showed to him. From that order an appeal has been filed under Section 83 of the Act to this Court by Murlidhar Pande, who was one of the disappointed applicants. He is not so nearly related to Lachmi Panda as Mata Dayal and there really is no reason why he should be preferred to Mata Dayal for the post of guardian of the property. We have ourselves examined Lachmi Pande and are satisfied that he does come within the description given in Section 65, Clause (2) of the Act, and we, therefore, confirm the appointment and dismiss the appeal with costs. Before disposing of this matter, however, we would call the attention of the learned District Judge to Section 67(2) and to Section 71(2) of the Act, and direct him under these sections to take proper action.
3. I entirely agree and have nothing to add except with regard to the previous proceeding?, which have been mentioned to us as part of the history of the case, taken by the predecessor of the Judge whose order is under appeal. No Judge has any right, or indeed any jurisdiction, to delegate his function to a third person except, of course, under the provisions of the law of arbitration in matters to which these provisions are appropriate. A Judge, no doubt, in many matters which come before him in connection with the duty of disposing of suits, may desire to inform his own mind with expert assistance, or with the opinion of somebody whom he considers better fitted than himself to form a definite view upon a particular issue. For example, a Judge may appoint a Commissioner in a civil suit to report about the condition or the value of the property or the nature of crops or the measurement of land, but it is obvious that in such a case the Commissioner or person appointed to assist or advise a Judge is no more than a witness and the Judge must retain the judicial function in his own person. If for example in this case the Judge wanted to adopt the opinion of Mahadeo Pande, the proper course was for him to call that gentleman into the box and to examine him on oath and ascertain the reasons for the view which he entertained and if he saw fit to adopt the view of that gentleman, he would be acting within his jurisdiction and with a right discretion, but he would be doing so on sworn testimony which would form part of the record. In such a matter as this to talk about arbitration and award is to use language which has no meaning,
4. Reference might also be made to the case of Mohammad Yaqub v. Nazir Ahmad 58 Ind. Cas. 617 : 18 A.L.J. 577 : 42 A. 504 In that case the Court endeavoured to lay down suggestions to guide a Judge who was sailed upon, by an application brought before biro, to decide whether an inquisition ought to be held and if so, She proceedings which should be taken.
5. It is only right to add that the report of this decision was not published until after the date of the learned District Judge's order.