Bhaskaran Nambiar, J.
1. This appeal under Section 83 of the Lunacy Act (Central Act IV of 1912) is directed against the order of the District Court, Ernakulam, declaring Sri Manayath Thommen Antony as a person of unsound mind incapable of managing his affairs and appointing his brother's widow Mrs. Tresa Xavier as his Custodian and Manager of his properties.
2. Mrs. Tresa Xavier -- to be referred hereafter as the petitioner -- filed an application under Sections 62 and 63 of the Act alleging that the second respondent herein, Manayath Thommen Antony, has been insane for several years, that his brother was appointed as a guardian in an earlier lunacy proceeding, Lunacy Order P. No. 1 of 1962, that he was under the care of his brother till he died on 12-1-1979 and thereafter the second respondent has been under the custody and care of the petitioner. It was, therefore, necessary to appoint a guardian for him to manage his person and his properties. The petition also stated that there were no close relations of the alleged lunatic.
3. On this application the lower Court ordered notice to the second respondent, the alleged lunatic. The notice could not be served on him as reported by the Process Server and it was accepted by the petitioner herself. He was examined by a doctor who submitted a report. The respondent was also questioned by the lower Court.
4. The appellant herein, the respondent's nephew, got himself impleaded in the proceedings before the Court below. He denied the factum of insanity, disputed the claim for appointment of a Custodian or Manager and asserted that he was ignorant of the earlier lunacy proceedings and that in any case, they were not valid as they were obtained by mis-representation and fraud. The Court below found that the 2nd respondent is a lunatic and appointed the petitioner as his Custodian and Manager of his properties.
5. The Act defines lunatic in Section 3 (5) thus:--
'Lunatic means an idiot or person of unsound mind.'
Lunatic under the Act refers to a state of mind, defective and undeveloped, as in the case of an idiot, or deranged or disordered and thus abnormal and out of equilibrium as in unsoundness of mind.
6. In Halsbury's Laws of England Second Edition, Vol. 21 the expression 'persons of unsound mind' has been denned as follows:
'Unsoundness of mind, or as it is sometimes styled lunacy or insanity, may be shortly defined as a defect of a 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 theirregular 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 of 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 riot relieve it from the obligation to form an independent opinion.'
7. In Sonabati Devi v. Narayan Chandra Upadhya (AIR 1935 Pat 423) Courtney Terrell, C. J. stated thus :
'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 unsound-ness; he might have all kinds of delusions, but if his conduct remains normal, there should 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.'
8. The relevant provisions of the Act, Sections 62, 63, 40, 41 and 42 read thus:
'62. Power of District Court to institute inquisition as to persons alleged to be lunatic. -- Whenever any person not subject to the jurisdiction of any of the Courts mentioned in Section 37 is possessed of property and is alleged to be a lunatic, the District Court, within whose jurisdiction such person is residing 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.
63. Application by whom to be made (1) Application for sudh inquisition may be made by any relative or the alleged lunatic or by any public Curator appointed under the Succession (Property Protection) Act, 1841, (hereinafter referred to as the Curator), or by the Government Pleader, as defined in the Civil P. C, 1908, or if the property of the alleged lunatic consists in whole or in part of land or any interest of land, by the Collector of the District in which it is situate.
(2) If the property or any part thereof is of such a description that it would by the law in force in any State where such property is situate subjects the proprietor, if disqualified, to the jurisdiction of the Court of Wards,the application may be made by the Collector on behalf of the Court of Wards.
40. Notice of time and place of inquisition.-- (1) Notice shall be given to the alleged lunatic of the time and place at which it is proposed to hold the inquisition.
(2) If it appears that personal service on the alleged lunatic would be ineffectual, the Court may direct such substituted service of the notice as it thinks fit.
(3) The Court may also direct a copy of such notice to be served upon any relative of the alleged lunatic and upon any other person to whom in the opinion of the Court notice of the application should be given.
41. Powers of Court in respect of attendance and examination of lunatic.-- (1) The Court may require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or by any person from whom the Court may desire to have a report of the mental capacity and condition of such alleged lunatic.
(2) The Court may likewise make an order authorizing any person or persons therein named to have access to the alleged lunatic for the purpose of a personal examination.
42. Rules respecting attendance, and examination of females' alleged to be lunatic.--The attendance and examination, of the alleged lunatic under the provisions of Section 41, shall, if the alleged lunatic be a woman whom, according to the manners and customs of the country, ought not to be compelled to appear in public, be regulated by the law and practice for the examination of such persons in other civil cases.'
9. In dealing with the problem posed to the care of the Courts, the scheme and object of the Act contemplate cautious approach, careful concern and a just determination through the watchful process of a judicial enquiry. It seems to be clear that the Court has to issue directions for inquisition in the first instance before further proceedings can continue. Inquisition is investigation or examination whether the person who is alleged to be a lunatic is of unsound mind and incapable of managing his affairs. This direction for inquisition precedes an enquiry as contemplated under the Act. This direction can be issued on the basis of the averments made in the petition, the affidavits, if any, filed and other materials produced in support of the case. It is, therefore, necessary that the application filed should contain all necessary and relevant matters and it is imperative that it also contains the names of the relatives of the alleged lunatic. The petitioner cannot withhold the names of the relations and obtain an order of the Court behind their back. When once the direction for inquisition is made, notice has to be given to the alleged lunatic stating the time and place at which it is proposed to hold the inquisition. If personal service to the alleged lunatic is ineffectual, the matter has to be reported to the Court and the Court has to apply its mind and direct such substituted service of the notice as it thinks fit The Court has also to give a copy of the notice to be served on any relative of the alleged lunatic and upon any other person to whom in the opinion of the Court, notice of the application should be given. There is sufficient power in the Court to require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or by any person from whom the Court may desire to have a report of the mental capacity and condition of such alleged lunatic.
10. Rankin, C. J. in Saraj Basini Debi v. Mohendra Nath (AIR 1927 Cal 636) held as follows:
'But the first thing which has to be done upon an application such as was presented in this case is that the learned Judge either with notice to the lunatic or without notice should carefully consider whether the case is one which calls for an order directing an inquisition. If he considers that it calls for an order directing an inquisition, then it is his obvious duty to record an order directing an inquisition. When he has once done that, then the petition is a spent petition which has served its primary purpose. When he has once done that, he is then by the combined operation of Section 64 with Sections 40, 41 and 42 of the Act to take certain steps with regard to notices.'
11. The mode of enquiry prescribed in Sections 40, 41 and 42 is therefore a statutory prescription compelling obedience. These provisions serve great public interest and are necessary for an effective discharge of the duties vested in the Courts;
12. In this case the Court below has not followed the peremptory procedure prescribed under the Act. The notice sent to the alleged lunatic was accepted by the petitioner herself. The Court did not examine whether substituted service, was possible or not. There is no direction for inquisition. We, therefore, thought that it was advisable to have the alleged lunatic brought beforeCourt. He was accordingly brought before Court and he answered questions put by the Court and the counsel appearing on both sides, fairly accurately. His manner of dressing and walking and his bearing and gestures were normal. He was clear in his voice, coherent in his speech and cogent in his reasoning. He knew about himself; he was aware of the outside world; he remembered important events in his life and stated that he has studied up to the B. A. standard. He also remembered that he was treated and that he was maintained by his deceased brother.
13. In this state of affairs we think it very unwise to uphold the decision of the lower Court especially when there has been gross mis-carriage of justice by non-observance to the procedural requirements of the law. Moreover, the lower Court has laid considerable stress on the earlier lunacy proceedings, O. P. 1 of 1962, in which the respondent's brother was appointed as a guardian. The records of' the case were brought before the lower Court; but the lower Court does not seem to have perused them. The record has been produced before this Court also. It is significant to note that the brother stated that there were no close relations. This was factually wrong and probably intended to mislead the Court. In fact the alleged lunatic has a sister and the 2nd respondent (the appellant herein) is his nephew. In that proceeding the lower Court directed the examination of the respondent by a doctor and the doctor was also examined as P. W. 1 and his medical certificate also marked. Thereafter the Court passed an order to the following effect :
'Examined P. W. 1 and filed Ext. P1. For furnishing security 23-2-1963.
23/2/1963 security furnished and accepted. The petitioner who is the brother of the lunatic is appointed Manager of the estate of the lunatic and guardian of his person as it is in the best interests of the lunatic.'
There was no finding that the respondent was a lunatic. The earlier proceedings could not have been relied for any purpose whatsoever.
14. It has been brought to our notice that the lunatic has several items of immovable properties, that there are land acquisition proceedings regarding apportionment of compensation amount, pending in the subordinate Court, that there are kudikidappus whose rights have to be determined under the Land Reforms Act and there is dispute between the petitioner and others regardingthe share of the compensation amount. We are not sure whether these disputes regarding properties are not the real motives in initiating this proceeding under the Lunacy Act. We are not satisfied with the reasoning or the conclusion of the Court below. The whole matter has to be considered afresh after fresh notice is taken to the alleged lunatic, his close relations including his sister and after affording them an opportunity to file statements and lead evidence, if any. The Court may also cause the 2nd respondent to be examined by a doctor and a fresh medical report may also be obtained.
In the result we allow the appeal, set aside the order of the lower Court and direct the lower Court to dispose of the matter in the light of the observations made above and according to law. The parties will bear their own costs.