1. Appellants are respondents 1 to 4 in O.P.No. 73 of 1962 on the file of the District Judge, Kanyakumari at Nagercoil. Respondents 1 and 2 filed the petition under Ss. 62, 63 and 67 of the Indian Lunacy Act for directing inquisition for the purpose of finding out whether Kumara Pillai is of unsound mind and incapable of managing himself and his affairs and for passing suitable orders for his custody and the management of his estate. The second respondent is the son of the first respondent who claims to have married Kumara Pillai as his second wife in Avani 1119 M.E. The appellants are the sons and daughters of Kumara Pillai through his first wife Ponnammal and they dispute the alleged marriage between the first respondent Kamalammal and their father. The third respondent Ponnamlla was impleaded as the fifth respondent in O.P.No. 73 of 1962 on the file of the lower court on the ground that she had filed O.S.No. 41 of 1962 on the file of the Subordinate Judge's Court, Nagercoil, claiming to be the second wife of Adhikesavaperumal Pillai, the father of Kumara Pillai. The learned District Judge has found that Kumara Pillai is a lunatic who cannot manage his affairs and to whom a proper guardian has to be appointed to look after him and a manager for his estate. An advocate-Receiver was appointed to manage the estate of Kumara Pillai. Though the learned District Judge found that the first respondent Kamalammal was not the legally wedded wife of Kumara Pillai, he considered her to be a fit and proper person to be appointed as the guardian of Kumara Pillai. Aggrieved with this order, the legitimate children of Kumara Pillai have come forward with this appeal.
2. There is no dispute about the fact that Kumara Pillai is a lunatic, who is incapable of managing his person and properties. The only question for consideration in this appeal is whether the learned District Judge, Kanyakumari, erred in appointing the first respondent Kamalammal as the guardian of the person of Kumara Pillai in spite of his having negatived her status as his second wife.
3. The evidence of P.W. 1 Kamalammal, the first respondent herein, is that she married Kumara Pillai on the representation that his first wife was not alive and that she begot children through him. The learned District Judge found the marriage of Kamalammal with Kumara Pillai invalid as his first wife died only subsequently. The contention of the appellants is that the first respondent Kamalammal was only working in the house as a servant woman and looking after Kumara Pillai. But it is not possible to accept this plea. It is clear from the evidence of P.W. 1 Kamalammal that after her marriage with Kumara Pillai, she lived with her husband and his parents in Kanyakumari for one year and then they all shifted of Eravipudur where they resided for four years, that afterwards they went and lived in Vilangadu for fourteen years and subsequently came back to Kanyakumari. Her evidence is that the appellants herein never used to visit Kumara Pillai at any of the places where she lived with him. She stated that her husband has not attended the marriages of the appellants 2 to 4. She stated that she was attending to Kumara Pillai, feeding him and looking after him and that he was not used to take food from persons other than herself and her daughter Bhagavathi Ammai aged 15 years. P.W. 1 Kamalammal deposed that she was on cordial terms with her parents-in-law and that her mother-in-law had settled properties in favour of herself and her children. It is on these grounds that she claimed to be the fit person to be appointed as the guardian of Kumara Pillai. It is significant to note that there has been practically no cross-examination on several of these matters spoken to by her. It was no doubt elicited from P.W. 1 that in Ex. A.3 she had been described as a servant woman and that in Ex. B1 there was a recital that Kamalammal was taken to help Kumara Pillai. But irrespective of the question whether P.W. 1 Kamalammal was a concubine or not, there can be no doubt that she alone was looking after Kumara Pillai from 1119 M.E. when she claims to have married him.
4. P.W. 2 Karunakaran is the son of P.W. 1, Kamalammal through Kumara Pillai. He also stated that the appellants never attended on their father, or came to see him and he was not cross-examined about it. On a complaint given by P.W. 1 Kamalammal after the death of Adhikesavaperumal Pillai that the appellants were giving them troubles, P.W. 3, Balakrishnan. Sub-Inspector of Police, Kanyakumari, made an enquiry and directed the parties to seek remedy in court.
5. R.W. 1 Kesava Pillai is the first appellant in this case. He stated that P.W. 1 Kamalammal was working in his house and looking after his father from 1119 M.E. (1943) Bhagavathi the mother of Kumara Pillai died on 15th July 1962, and Adikesavaperumal Pillai, father of Kumara Pillai died on 30th October 1962. R.W. 1 deposed that in between Bhagavathi's death and Adhikesavaperumal Pillai's death, he and his sisters looked after their father. But no such suggestion was made to P.Ws. 1 and 2 in this case. He further stated in his chief-examination that it is not correct to state that he never used to visit his father and grandparents. But here again we have to note that no such suggestion was made to P.Ws. 1 and 2. There can be no doubt in this case that the first respondent Kamalammal alone has been looking after Kumara Pillai since 1119 M. E. when she claims to have married him as his second wife and that the appellants, who were evidently dis-satisfied with the conduct of their father, never cared to visit him.
6. Under Section 72 of the Lunacy Act, the legal heir of a lunatic shall not be appointed to be the guardian of the person of such lunatic unless the court or the Collector, as the case may be, for reasons to be recorded in writing, considers that such appointment is for the benefit of the lunatic. The appellants are the heirs of Kumara Pillai and, therefore, they are prima facie disqualified tobe appointed as the guardian of Kumara Pillai unless and until the court considers such an appointment is for the benefit of the lunatic. It is clear from what we have already stated that the appellants never cared to look after their father at any time after he contracted intimacy with P.W. 1 Kamalammal and lived with her. The only explanation put forward by the learned Advocate for the appellants is that during the lifetime of the parents of Kumara Pillai, there was no need, or occasion for them to live with their father Kumara Pillai. We are unable to accept this as a sufficient explanation for the indifferent attitude of the appellants towards their father. It is significant to note that the first respondent Kamalammal has been appointed as the guardian of Kumara Pillai by order on O.P. No. 73 of 1962 on the file of the lower court, dated 28th September 1963 and there was no interim stay of that order. Unfortunately this appeal was posted for hearing along with A.S.No. 319 of 1964, on the file of this court, which is a suit for partition relating to the estate of Adhikesavaperumal Pillai filed by the third respondent Ponnammal. The first respondent Kamalammal has admittedly been looking after Kumara Pillai as the guardian in pursuance of the order of the lower court for over 7 1/2 years. Thus having regard to the entire facts and circumstances of the case, the appointment of the first respondent Kamalammal as guardian is really for the benefit of the lunatic Kumara Pillai, which is the primary consideration in dealing with petitions for guardianship.
7. In Fazl Rab v. Khatun Bibi, ILR (1892) All 29 it has been held that a High Court as a court of appeal will not take upon itself the duty of deciding who may be the fittest person to be appointed as guardian of the person who is adjudged a lunatic and that the duty should rest with the court to which it is entrusted by the Lunacy Act. It is true if the District court exercised its judicial discretion wrongly there is scope for interference in appeal. But it is clear from what we have stated that the order of the District Court appointing the first respondent Kammalammal though a concubine of Kumara Pillai, as his guardian, having regard to the facts and circumstances of the case and the interests of the lunatic is a proper one.
8. The appeal is therefore dismissed with costs.
9. Appeal dismissed.