1. By order dated 30th April, 1937, in O.P. No. 295 of 1936, C. Abdul Salam Sahib was adjudicated a person of unsound mind and incapable of managing his own affairs, and the Official Trustee of Madras was appointed the manager of the abovenamed lunatic's properties with all powers provided under Section 47 of the Indian Lunacy Act, 1912. In the present application, the Official Trustee of Madras as such manager prays for an order against the respondent (who is the father of the lunatic).
(1) To hand over to the applicant Government securities of the face value of Rs. 1,50,000 standing in the name of the lunatic and in the respondent's custody;
(2) To put the Official Trustee of Madras in possession of the Sathgur estate belonging to the lunatic.
2. Since issuing this application, the applicant has ascertained that the Government securities in fact are in 'the joint names of the lunatic and the respondent who so transferred them about the year 1925. The sale deed of the Sathgur estate is in the sole name of the lunatic. These properties, movable and immovable, are in the possession of the respondent. The applicant bases his claim for the order which he prays upon the grounds that the respondent has made valid and completed gifts of these properties to the lunatic with the avowed object of benefiting him. In his counter-affidavit filed on 30th September, 1937, the respondent admits that the Government securities stand in the joint names of himself and the lunatic and alleges that they were purchased with his own monies and have been in his own possession throughout on his own behalf and in his own right. He says further that the Sathgur estate was purchased by him with his own monies and the sale deed was taken in the name of the lunatic without any intention to confer any benefit on him, and the respondent has never parted with possession of either of these two properties. He contends there has been no valid and completed gift according to Mohammadan Law and no right has passed to the lunatic in respect of either of these properties.
3. The application was issued under Section 47 of the Indian Lunacy Act. The applicant has stated that this is an error and that it should be under Section 48 of the same Act, and I propose to allow the applicant to amend the application by substituting the latter in place of the former section.
4. Mr. S. Doraiswami Aiyar, learned Counsel on behalf of the respondent, raises two preliminary objections to this application. That (1) proceedings of this nature should be by a petition and not by an application; and (2) the claim made by the applicant cannot be entertained or established either by an application or by a petition, and should be by way of a suit.
5. The objection is made on the ground that Section 48 of the Lunacy Act does not contemplate claims of the nature now made and is restricted to matters arising in connection with the estate of the lunatic which estate is in possession of a manager or is ascertained, and does not include a proceeding in which it is sought to establish that property or properties in the possession of other persons form part of the estate of the lunatic, namely, that in respect of a matter in which the title of the lunatic to property is in issue.
6. The relevant sections of the Lunacy Act so far as this application is concerned, are contained in Chapter IV of that Act, which chapter includes Sections 37 to 61 inclusive.
Section 37. - The Courts having jurisdiction under this chapter shall be the High Courts of Judicature at Fort William, Madras and Bombay.
Section 38. - (1) The Court may upon application by order direct an inquisition whether a person subject to the jurisdiction of the Court who is alleged to be lunatic, is of unsound mind and incapable of managing himself and his affairs.
(2) Such order may also contain directions for inquiries concerning the nature of the property belonging to the alleged lunatic, the persons who are his relatives, the time during which he has been of unsound mind, or such other matters as to the Court may seem proper.
Section 47. - The Court, on the appointment of a manager of the estate of a lunatic, may direct by the order of appointment, or by any subsequent order, that such manager shall have such powers for the management of the estate as to the Court may seem necessary and proper, reference being had to the nature of the property, whether movable or immovable, of which the estate may consist:
Provided that no manager so appointed shall without the permission of the Court - (a) mortgage, charge or transfer by sale, gift, exchange or otherwise, any immovable property of the lunatic; or (b) lease any such property for a term exceeding five years.
7. Such permission may be granted subject to any condition or restriction which the Court thinks fit to impose.
Section 48. - The Court may, on application made to it by petition concerning any matter whatsoever connected with the lunatic or his estate, make such order, subject to the provisions of this chapter, respecting the application, as in the circumstances it thinks fit.
Section 61. - The Court may, from time to time, make rules for the purpose of carrying into effect the provisions of this chapter in matters of lunacy.
8. In regard to the first objection, namely, that the proceedings should not be by an application but by means of a petition, the High Court of Madras having jurisdiction under the Lunacy Act pursuant to Section 37 have made rules as provided by Section 61 of the Act in order to carry into effect the provisions of Chapter IV of the statute, and Order 33 of the Original Side Rules are the rules made by this Court. The rules which are material for the matter before me are:
Rule 1. - Every application under Section 38 of the Act shall be made to the Court by a verified petition stating...(c) the nature of the lunatic's property and the income thereof.
Rule 2. - All other applications under the Act and all applications in. pending matters shall be by Master's summons in all cases of procedure or ministerial acts and by Judge's summons in other cases.
9. Section 38 of the Act is that by which an inquisition into the state of a person's mind is held.
10. There is no definition of a 'petition' either in the Civil Procedure Code or in the General Clauses Act. Order 1, Rule 4(9) of the Original Side Rules defines an 'Original Petition' as meaning
A petition to the Court whereby any proceeding, other than a quit or appeal, or a proceeding in execution of a decree or order, is instituted in the Court.
11. And it is such a petition which Order 33, Rule 1 contemplates. An application is a petition inasmuch as it prays the Court to grant relief prayed therein. The use of the word 'petition' in Section 48 of the Lunacy Act is used in contradistinction to a 'suit' and indicates that matters properly the subject of the provisions of Section 48 can be brought before the Court by a proceeding other than a suit. The provisions of Order 33 of the Original Side Rules supply the machinery to carry into effect the provisions of Chapter IV of the Lunacy Act as provided by Section 61 thereof. The Court having been seized of the matter regarding the lunatic and his estate by means of an Original Petition under which it is found that the person is of unsound mind and incapable of managing himself and his affairs, it is in my view unnecessary that any further proceedings arising in respect of the matter should have to be prosecuted by means of another original petition. The petition indicated in Section 48 is the application now before the Court which is authorised by Order 33, Rule 2, which order, as I have said, is prescribed by Section 48 and is in conformity with it and is not ultra vires of the provisions of the Lunacy Act. This objection is not one of substance but of form only, and if I had come to a contrary conclusion, I should have allowed the applicant to convert the present application into an Original Petition. In my view, the first objection fails.
12. In regard to the second objection, namely, that the relief now sought should not be the subject of an application but should be by way of a suit. The language of Section 48 is not mandatory but permissive. By the use of the word 'may' a discretion is given to the Court to make an order under that section. The words 'concerning any matter whatsoever connected with the lunatic or his estate' are very wide, and indeed it is difficult to imagine a wider expression. It is contended that this section does not empower a Court by the proceedings mentioned therein to decide such a question as arises in the present application, namely, whether the properties referred to in the application form part of the estate of the lunatic, but confers jurisdiction upon a Court only in regard to properties which unquestionably are part of the lunatic's estate. Section 47 of the Act confers upon the Court power to direct, either by the order of the appointment of the manager of the estate or by any subsequent order such powers for management of the estate as the Court may consider necessary and proper. The proviso makes it clear that the manager may not, without the permission of the Court, mortgage, charge or transfer by sale, gift, exchange or otherwise, any immovable property of the lunatic or lease any of such property for a term longer than five years. This section deals with the estate of the lunatic which is in possession and therefore with such properties as are ascertained. The provisions of Section 48 are in addition to those contained in Section 47, an argument on behalf of the respondent that the Court has no jurisdiction to grant the relief sought was based upon the analogy of the methods by which a guardian of a minor under the Guardians and Wards Act seeks the assistance of the Court in regard to the minor's estate, and it was pointed out that such a guardian cannot obtain possession of or recover the property of the minor by means of an application or petition and that he must file a suit for such a relief. The grounds upon which a guardian appointed under the Guardians and Wards Act may make an application to the Court are contained in Section 33(1) of that Act, which section provides that he may apply by petition to the Court, which appointed or declared him, for its opinion, advice or direction on any present question respecting the management or administration of the property of the ward. The jurisdiction given to the Court under that section is clearly defined and is very limited, and the Court is unable to grant any relief other than giving its opinion, advice or direction. The wording of this section is entirely different from the wording of Section 48 of the Lunacy Act. In matters regarding the guardianship of a minor, such as obtaining possession of property of the minor, in the hands of a third party, must therefore be the subject of a suit. There is no provision in the Guardians and Wards Act comparable to that contained in Section 48 of the Lunacy Act. In my view, no support of the contention on behalf of the respondent is obtained by reference to the Guardians and Wards Act.
13. Mr. Doraiswami Aiyar conceded that under Section 7 of the Presidency Towns Insolvency Act, 1909, the Court has jurisdiction to decide in the insolvency proceedings all questions and matters which arise in the insolvency including the right or title to the property of the insolvent in the hands of third parties. The relevant wording of Section 7 is as follows:
Subject to the provisions of this Act, the Court shall have full power to decide all questions of priority and all other questions whatsoever, whether of law or fact which may arise in any case of insolvency.
14. Questions of priority do not arise in regard to lunatics and their estates as it does in the case of insolvents and insolvencies, and the words of Section 7, in regard to priority can be ignored. The words which follow 'all other questions whatsoever, whether of law or fact,' in my view, have the same meaning, in substance, as the words in Section 48 of the Lunacy Act 'any matter whatsoever.' The words in the former section 'whether of law or fact' do not give any extended meaning to the words 'all other questions whatsoever,' which words would mean the same, if reference to law and fact were omitted.
15. In further support of the contention of the learned advocate on behalf of the respondent, Nitamburree Chowdhrain v. Shushee Mookhee Chowdhrain (1869) 12 W.R. 518 was cited which is a case decided under the repealed Act XXXV of 1858. In that case, it was held that a Court having decided that a property formed part of the estate of a lunatic, it had no power to order that the Collector should take possession, although it is provided under Section 9 of this Act that in certain circumstances (which existed in the above case) the Court of Wards were authorised to take charge of the estate. In my view, this case is not in point here. In the above repealed Act, there is no section containing comparable provisions to those in Section 48 of the Lunacy Act. Whilst it is provided in Section 48 of the Lunacy Act, that the making of an order thereunder is subject to the provisions of Chapter IV, I see no provision in this chapter which prevents the subject of this application being dealt with in the way which is sought by the applicant now. In my view, Section 48 of the Lunacy Act gives to the Court jurisdiction to entertain by means of proceedings which are now before it the matters which are the subject of the present application. The intention of the Legislature, as in the case of insolvencies, is to provide a summary procedure in regard to matters concerning lunatics and their estates.
16. As pointed out above, this section is not mandatory but is permissive as is also the case in regard to Section 7 of the Presidency Towns Insolvency Act. The Court should refer the parties to a suit in cases which it considers likely to be complex or lengthy or properly matters which should be voiced by way of a suit-and which cannot conveniently be dealt with by the summary procedure indicated in Section 48 of the Lunacy Act. In the present application, it is admitted by the respondent that the Government securities are in the joint names of the lunatic and himself and that the sale deed of the immovable property is in the name of the lunatic. It is common ground that these properties were purchased out of the respondent's monies and are now in his possession. The matters for decision are whether the respondent intended in respect of either of the properties to pass and has passed any beneficial interest in these properties to the lunatic. These questions do not involve any complicated questions of title and the investigation is not likely to be lengthy or complex. In my opinion, therefore, they are matters which can conveniently and properly be tried by the method adopted by the applicant. If I had come to the conclusion that summary procedure was not an appropriate method to deal with the questions arising in the application, I should, without hesitation, have referred the parties to a suit. In my view, the second preliminary objection fails.
17. As the matters before me cannot be disposed of by affidavit, I direct the application to be posted in the evidence list in accordance with the established practice.
18. The parties before me agree there shall be mutual discovery by affidavit of documents in three weeks from to-day and inspection one week thereafter.