V. Sethuraman, J.
1. This petition has been filed against an order in I A. No. 483 of 1976 in O. S. No. 149 of 1975 on the file of the Subordinate Judge, Erode That I. A. came to be filed by the 1st defendant for her appointment as the guardian of the 3rd defendant, who, though a major, was stated to be of unsound mind. There was no counter filed and when the matter came up for final orders the learned Subordinate Judge by his order dated 28th April, 1976 cryptically observed:
The 3rd defendant appeared in person on 17th April, 1976. I found him on examination as a man quite sane. Hence, I do not find that the petition is maintainable. Petition is dismissed.
The unsuccessful applicant has now come forward with the present revision.
2. The learned Counsel for the petitioner contended that the Court below was wrong in passing the Order in the manner it did. It was also submitted that a regular judicial enquiry as to the lunacy or insanity should have been conducted and conclusion arrived at on that basis.
3. For this purpose, my attention was drawn to three decisions. The first one is Ramanathan v. Somasundaram : (1941)1MLJ234 , wherein after the final disposal of the suit by the appellate Court, the major defendant's mother put in applications for her appointment as his guardian-ad-interim on the ground of the defendant's mental in firmity and inability to manage his affairs and for applying the provisions of the Madras Agriculturists Relief Act to the appellate decree. The applications were remitted to the lower Court which instead of holding regular judicial inquiry contemplated by Rule 15 of Order 32 of the Code of Civil Procedure thought it sufficient to rely on the previous history of the litigation and on its own opinion formed after looking at the defendant and eliciting answers to some questions. The mother was given no opportunity of adducing evidence specially in the shape of doctor's certificate. It was held that it was incumbent on the Court to hold a regular judicial inquiry and desirable to invite the parties to adduce proper evidence even if the parties were somewhat indifferent, especially where the consequence of the dismissal of the petition would be to prevent the application of the provisions of the Madras Agriculturists' Relief Act. The fact that a person was a man of weak intelligence was held not to be a sufficient ground to hold that he is an insane person or to appoint a guardian ad litem and that it depends on the degree of weakness of intelligence.
4. Panchapakesa Ayyar, J., in Balakrishnan v. Balachandran : (1956)1MLJ459 had also to consider a similar question and after referring to Order 32, Rule 15, Civil Procedure Code, it was pointed out that:
The procedure involves a judicial enquiry which consists normally of two parts: (1) questioning the lunatic by the Judge himself in open Court, or in chambers, in order to see whether he is really a lunatic and of unsound mind, and (2) as the Court is generally presided over by a layman, to send the alleged lunatic to a doctor, for report about his mental condition after keeping him under observation for some days. That observation need not necessarily mean detaining the man even in hospital. It is enough if the doctor applies the tests at periodical visits to him spread over two or three days, and then gives his conclusions. When this elementary precaution of a judicial enquiry prescribed by law is not observed, I am afraid that the laws of this country will not allow a man to be declared a lunatic and a guardian appointed for him on such basis.
It is true that in this decision the caution to be exercised before declaring a person as lunatic and appointing a guardian, is indicated. In other words, the need for circumspection, before passing such an order is emphasised. However, the need for and scope of the enquiry to be conducted are indicated in the decision and that is what is relevant here.
5. In S.C. Karayalar v. V. Karaylar : AIR1968Mad346 the duty of a Court to act judicially in the interest of justice in a case of this kind has been reiterated. It was pointed out that the Court has to give a clear finding that the person concerned by reason of his infirmity is incapable of protecting his interest. In this case, also the caution that has to precede the declaration of a person as of insane mind is indicated, but what is necessary to remember is the enunciation of the scope of the provisions of Order 32, Rule 15, Civil Procedure Code. As pointed out in Ramanathan v. Somasundaram : (1941)1MLJ234 the questions and answers if reduced to writing would make it possible for a Court of revision to decide whether the conclusions arrived at on any aspect of the case was justifiable.
6. In the present case, no judicial enquiry was conducted and the application for guardianship has been rejected, if I may say so unceremoniously. I do not think the learned Subordinate Judge has exercised his jurisdiction or duty that is cast on him under Order 32, Rule 15, Civil Procedure Code. The Civil Revision Petition is, therefore, allowed and the order of the Court below is set aside and the matter is remanded to the Court below for fresh disposal in accordance with law. The respondents, if they are so advised, are permitted to file a counter and the matter would be disposed of on the basis of the evidence that may be adduced by the parties. No costs.