1. This Letters Patent appeal is directed against the order of Gokulakrishnan J. in proceedings arising under the Indian Lunacy Act, 1912. The relative facts may briefly be stated for a proper appreciation of the various aspects arising in this appeal.
One Balakrishna Pillai died long ago possessed of properties leaving behind him two widows Meenakshi and Sornathachi and a daughter Visalakshi. Sornathachi dies in 1944 and Meenakshi died earlier. Visalakshi was a person of unsound mind. Her husband predeceased her. Her husband's brother on Natarajan applied for himself being appointed as the lunatic's guardian and manager under the Lunacy Act. This was in O. P. No. 69 of 1944 on the file of the District Court, Tiruchirapalli. He was removed by court as such guardian on 9th June 1955 and in his place, Kumaravelu, the lunatic's mother's brother's grandson the appellant here, was appointed as the manager of the lunatic's estate.
At this stage one Devasenathipathi claiming himself to be the adopted son of Balakrishnan set up title to the estate of the lunatic and filed a suit impleading the lunatic represented by the appellant. He was successful in the trial court but on appeal by the appellant to this court, the suit was dismissed. a further appeal under the Letters Patent to this court (L. P. A. No. 68 of 1960) was also dismissed. Devasenathipathi filed an application S. C. P. 6 of 1965 for leave to appeal to the Supreme Court as against the judgment in L. P. A. No. 68 of 1960. While this application was pending, the lunatic died.
Devasenathipathi. ignored the appellant, who was by then actively participating in the proceedings as the manager of the lunatic and purporting to be her relation did not consider him as the heir of the lunatic notwithstanding his alleged distant relationship set up by him. On the other hand. Devasenathipathi sought to implead one Ganapathi the first respondent before us as the only heir and legal representative of the deceased Visalakshi. This was not seriously objected to be the appellant. Ganapathi was described as Balakrishnan's sister's grandson.
During the pendency of this application to implead the first respondent as the heir of the lunatic one Thangavelu interfered and claimed that he was nearer heir to the lunatic in the agnatic line and sought in S.C.M.P. 256 of 1965 in S.C.P 6 of 1965 for himself being brought on record in the leave to appeal petition. A report was called for by this court on the claims projected by Thangavelu, the report not being in favour of Thangavelu. This court impleaded Ganapathi as the heir of Visalakshi by the order dated 9th February 1967. The learned Judges observed as follows:
"The only question, therefore, for consideration in this petition is whether the petitioner (Thangavelu Pillai) is still entitled to urge that he is the legal representative of deceased Visalakshi and therefore he should be allowed to contest the Supreme Court petition. It is the case of the petitioner that if he is not made a party, the first and the third respondents herein would effect a compromise and share the estate in dispute between themselves.
Though there may be some force in this contention we feel that he is not barred from instituting an independent suit against both the first and the third respondents to establish his claim to the estate. The law is well settled that any decision or finding given in a proceeding under Order XXII, Rule 5, C. P. Code should be limited only for the purpose of carrying on the appeal and it cannot have the effect of conferring any right either to heirship or to the property. The decision rendered herein will not operate as res judicata in a subsequent suit. In Appaji Reddiar v. Thailammal, ILR 56 Mad 689 = AIR 1933 Mad 417, it was held that an order under O. XXII, Rule 5, C. P. Code was not a final adjudication of the rights of the parties and did not come within the meaning of the word 'judgment'.
2. Thus while negativing the claim of Thangavelu and recognising Ganapathi as the heir of the lunatic it was made clear that such order as only provisional and the rights of parties were left open to be agitated in independent civil proceedings. This is indeed the purport of Order XXII, Rule 5, C. P. Code. It is to be noted that the appellant stood by the these proceedings and elected not to put forward any semblance of right to heirship of whatever nature. Ultimately, the application for leave to appeal to the Supreme Court was also dismissed.
Thereafter Ganapathi, the respondent. filed I. A. 76 of 1968 on the file of the District Court, Tiruchirapalli (out of which the present proceedings arise) under Ss. 60, 80 and 82 of the Lunacy Act, 1912, read with S. 151, C. P. Code to direct the appellant to hand over possession of all the properties belonging to the lunatic on the foot that he was the heir of Visalakshi entitled to the same. The appellant opposed the application factually and legally. He set up a will of Swarnathachi of the year 1943 and virtually claimed title to the estate under it. His legal plea was that the court had no power to pass any order. The learned District Judge negatived the pleas and directed the delivery of the estate to the first respondent. On appeal Gokulakrishnan J. agreed with him. The present Letters Patent appeal is as against the said order of Gokulakrishnan J.
3. Mr. Sundaram Aiyar, learned counsel for the appellant submits that the District Court became functus officio on the death of the lunatic and no orders can be made and for a greater reason, an order for delivery of the estate as prayed for cannot be made. Reliance has been placed on the decision in David v. Thiagaraja, (1969) 82 Mad LW 597. The factual contention raised before the first court was not pressed but it was stated that as a full enquiry as to the relative merits of heirship was not undertaken by the learned District Judge of Tiruchirapalli, the matter requires rescrutiny and the order of this court on appeal is therefore not correct.
Mr. P. Sivaramakrishniah for the first respondent contending contra states that the court is not helpless in such circumstances and the estate cannot be left in dubio in the hands of a quondam manager without appropriate orders being passed in the matter of the delivery of the estate in his hands to the rightful heir of the lunatic. His case is that the finding of the court in the above Supreme Court petition though tentative is prima facie acceptance of the first respondent's claim as the heir of Visalakshi and that therefore the direction to the appellant to hand over the estate is well founded.
4. Before considering the contentions of the learned counsel before us it is necessary to notice the relevant statutory provisions. The petition for delivery was made under Ss. 60, 80 and 82 of the Lunacy Act. Part III of the Act provides for judicial inquisition as to lunacy. Chapter IV therein deals with proceedings in lunacy in Presidency towns, such as Calcutta, Madras and Bombay. Section 60 provides for proceedings in lunacy to cease or to be set aside if court finds that the unsoundness of mind has ceased. Section 60(2) which is similar to Section 82(2), which is applicable to proceedings in lunacy outside the Presidency towns, runs as follows:
"(2) The inquiry shall be conducted as far as may be in the manner prescribed in this chapter for an inquisition into the unsoundness of mind of an alleged lunatic; and if it is found that the unsoundness of mind has ceased, the court shall order all proceedings in the lunacy to cease or to be set aside on such terms and conditions as the court may seem fit". (the underlining is ours).
Therefore under S. 60(2) or S. 82(2) of the Lunacy Act, the court can pass such orders as it may seem fit on the cessation of lunacy of the lunatic.
The above provision in the Lunacy Act is similar and indeed analogous to that in Section 41(3) of the guardians and Wards Act, 1890. Section 41 of the guardians and Wards Act deals with cessation of authority of guardians. Subsection (3) therein runs as follows:
"When for any cause the powers of a guardian cease, the court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward."
If the power of a guardian ceases for any cause, the court may require the guardian or his heir to deliver the estate and the relative accounts as it directs. The question is whether the court can exercise such a power under the guardians and Wards Act when the minor dies. We have no hesitation in holding that the words 'any cause' in sub-section (3) of Section 41 includes the death of a minor also and by such death the powers of the guardian come to an end. If authority is required, see Nataraja Pillai v. Subbaraya Pillai, 1918 Mad WN 440 = (AIR 1919 Mad 255). If this is so with regard to the Guardians and Wards Act, even under the Lunacy Act of 1912, under Section 82(2) and 60(2) similar results ought to follow.
5. The expression 'as it directs' appearing in sub-section (3) of Section 41 in the guardians and Wards Act is similar to the expression and has similar effect on the expression 'on which terms and conditions as the court may seem fit' appearing in S. 60(2) and S. 82(2) of the Lunacy Act. The question is whether the court's power as above can be exercised when the lunatic is dead. The cessation of lunacy is equivalent to civil death of the lunatic in the lunacy proceedings. If the courts can act under S. 82 or S. 60 of the Lunacy Act, on the civil death of a lunatic as aforesaid, a fortiori they can similarly act on the real death of the lunatic. As a matter of fact when the lunatic owing to death ceases to be as such, then he or she ceases to be lunatic. Therefore, the courts can act on the death of a lunatic under S. 82 and while ordering all proceedings in lunacy to cease contemporaneously pass such ancillary and incidental orders as they seem fit.
6. Mr. Sundaram Iyer, however, referred to the decision reported in (1969) 82 Mad LW 597. That was a case which arose under Section 75 of the Lunacy Act and not under Section 82. Even apart from it learned counsel appearing therein did not dispute the fact that the jurisdiction of the District Court under the Lunacy Act had to come to an end after the death of the lunatic. Such an abatement is for certain purposes and in our view such an extinction of jurisdiction is not for all purposes. Under the peculiar circumstances of that case the learned Judges had to express that there is nothing in the provisions of the Act which would enable the court to continue the proceedings after the death of the lunatic.
In fact the following observations made in Ramakamath v. C. L. Lobo, 1943-1 Mad LJ 22 = (AIR 1943 Mad 265) cited with approval in that case give the clue to interpret the ratio in (1969) 82 Mad LW 597--
"It was held on a consideration of the provisions of the Lunacy Act that the right of action for a claim for rent for the periods subsequent to the death of the lunatic would vest in the heir entitled to take the property after the death of the lunatic, and therefore the court has no jurisdiction to sanction the institution of proceedings and the Manager has no right to maintain the suit after the death of the lunatic."
The above excerpt postulates that the right to sue for rent for a period subsequent to the death of the lunatic vests in the heir. Therefore it is obvious that the heir of the lunatic acquires certain vested rights on the death of lunatic. It is to enable the enforcement of such rights acquired by the heir that S. 82 or S. 60 enables the court to function for limited purposes after the cessation of lunacy and in our view after the death of the lunatic as well as pass such ancillary orders as it seems fit.
The rule in (1969) 82 Mad LW 597 is not applicable to the present situation. If the rule is understood, as contended to mean that the courts are functus officio on the death of the lunatic then what would become of the property of the lunatic in the hands of the manager? Can he possess it in his own right or adversely to the heirs of the lunatic or claim a right to the prejudice of the lawful heir? The posers are easy of answer. No norm in jurisprudence will entitle a quondam manager of a lunatic's estate to continue with impunity possession of such estate to the detriment of every one concerned and above all free from judicial interference and above all free from judicial interference and shackles. It would be a preposterous state of affairs if the jurisdiction of courts to pass necessary orders are totally denied on the illogical basis that the courts have become functus officio on the death of the lunatic.
It is to guard against such extreme contention that the legislature has provided S. 82(2) or S. 60(2) of the Act to the effect that on the cessation of lunacy which includes the death of the lunatic the court can pass such orders as it seems fit. Hidayatullah J. (as he then was), speaking for the Bench in Bhaoorao v. Chandrabhagabai, AIR 1949 Nag 108 has observed--
"There is no provision in chapter 5, Lunacy Act, for the removal of a guardian or manager of a lunatic when the lunatic dies. In this respect, the provisions of the Lunacy Act resemble those of the Guardians and Wards Act. But a manager can continue only so long as the lunatic is alive. When the lunatic dies, the lunacy jurisdiction comes to an end and the court must pass some order about the property in the hands of the manager. If the title to the property be in dispute, the court may either decide the issue or ask the manager to file an interpleader suit. But whichever course is followed, the order of the court will be referable to the jurisdiction exercised over the property of the lunatic under Chapter 5 and the order must be deemed to be an order under that Chapter".
The learned Judge obviously had Section 82 or 60 of the Lunacy Act in his mind.
7. Further it was the court which vested the estate with the manager. It cannot therefore be said that as regards such properties so handed over through the medium of the court to a manager in lunacy proceedings, it cannot be taken away by the same court which passed the said order, after the death of the lunatic. When an authority is permitted by law to vest certain rights in some by operation of law, undoubtedly the same authority has the power to divest such rights, if the law provides for such divestiture and if circumstances warrant. This is the view of the Court of Appeal in In re Butler, (1866) 1 Ch 607.
We are therefore of the view that under S. 82 of the Lunacy Act the court has power to pass such expedient and necessary orders regarding the divesting of the lunatic's estate from the quondam manager and for handing over the same to the heirs of the lunatic. It may be that the orders of divestiture and vesting may in some cases be summary because there may be possible disputes as regards heirship to the estate of the lunatic as between a person and a person. In such cases, it is no doubt necessary that the order passed under Section 82(2) or under Section 60(2) of the Act must be deemed to be a provisional order subject to rescrutiny and reconsideration in a fullfledged enquiry in a regular suit instituted for the purpose by interested persons who do not accept the correctness of the provisional order. This is a very different matter for it does not touch upon the jurisdiction of the court to pass an order and direct delivery of the estate to the heir of the lunatic then prima facie found to be entitled to the same. It may be that in a fit case directions for the filing of interpleader suit may also be given but that would arise principally in a case where the manager is disinterested.
8. In the conspectus of our view as above, is the order of the learned Judge directing delivery of the estate to the first respondent correct? This court in second appeal and particularly when the judgment of the learned Judge of this court in C. M. A. 80 of 1960 was one of affirmance, would not ordinarily interfere with the discretion exercised by the first court and the appellate court. But Mr. Sundaram Iyer contends that as the appellant is also claiming rights as heir to Visalakshi and as he is in actual possession of the estate, the first respondent may be directed to file a regular suit to establish his rights. This is undoubtedly a case where a direction to the manager to file a interpleader suit cannot be made because as already stated, he is setting up title in himself to the estate. The only other alternative direction possible is to compel the first respondent to go to court and establish his rights. Can it be done in this case?
Mr. Sivaramakrishniah rightly referred to some acts of omission and commission on the part of the appellant which disentitled him to the relief as claimed by his counsel. The appellant, as already observed was a passive participant in S. C. P. 6 of 1965 and it does not appear from the record that he pressed his claim as heir of Visalakshi at that time or disputed the claim of heirship put forward by Ganesan. If not on the basis of election but at least on the ground that he stood by the events without stemming its progress, it is not open to the appellant to compel the first respondent to go to court and himself at the same time retaining possession of the property to the detriment of the first respondent who has been prima facie found to be the nearest kin of Balakrishnan even in 1965.
One other act of commission or indeed omission referred to is that the appellant has been debiting the estate with expenses which the estate need not bear. We have allowed the application for reception of additional evidence in C. M. P. 3205 of 1970 filed before us. One such document sought to be filed as additional evidence is a copy of the accounts filed by the appellant as the manager of the lunatic's estate. After her death he has debited the estate with the expenses connected with the application for leave to appeal to the Supreme Court. This is absolutely unwarranted and this only reflects his conduct.
The other act complained of by the first respondent is that the appellant in utter disregard of his undertaking given to the District Court in the earlier proceedings sold away the properties which were offered as security to that court. The appellant's explanation is that he did it by oversight. This is a serious matter but we take notice of this in this appeal for the only purpose of weighing the integrity of the appellant who wants to continue in possession of he properties of the lunatic to the prejudice of the first respondent and drive him to an independent suit though he is prima facie entitled to the possession of the estate of the lunatic. We are therefore unable to interfere with the discretion exercised by Gokulakrishnan J., who in turn affirmed the order of the District Judge.
We however make it clear that the order of delivery of the estate which is affirmed by us is only tentative and still it is open to the rightful heirs of Balakrishnan including the appellant to establish their rights in a court of law in a regularly instituted proceeding for the purpose. But until then the first respondent will be lawfully entitled to retain possession of the estate and ultimately claim absolute title to it if all other claims fail. Time for delivery one month. The Letters Patent appeal is dismissed but there will be no order as to costs.
9. Appeal dismissed.