1. The alleged lunatic in this case is one Dengar Sheikh. The respondent, one Moulvi Tofailaddi, a paternal cousin of the second degree (his grandfather and Dengar Sheikh's grandfather having been two brothers) applied on 26th May 1928 in the Court of the District Judge of Faridpur for an order for his own appointment as guardian and manager of the person and properties of Dengar Sheikh and for an order for sale of a portion of his properties for his maintenance, on the allegation that the said Dengar Sheikh was a lunatic. The application was a verified one. He named in the application the two daughters of Dengar Sheikh as his relations, and notices were served on them. The District Judge, on 25th September 1928 ordered a commission to issue on the Munsif, first Court, Madaripur, for inquiry and report as to the mental condition and capacity of the. alleged lunatic. The appellant, a cousin brother of Dengar Sheikh (being his father's sister's eon), and another daughter of Dengar Sheikh, on 28th November 1928, applied to the District Judge for time to file objection, and complaining of non service of notices on them. The Munsif saw the alleged lunatic who was produced for his personal examination. What he did may be gathered from the report dated 13th February 1929 which he submitted. He says thus:
The alleged lunatic was produced before me for my personal examination, but he did not answer any question put to him but muttered something which was inaudible. In these circumstances under Section 5, Lunacy Act, I appointed the local Sub-Assistant Surgeon to examine the alleged lunatic and desired to have a report from him as to the mental condition and capacity of the alleged lunatic. His report in the form of a certificate dated 11th February 1929 shows that Dengar Sheikh, the alleged lunatic, is of unsound mind. In these circumstances I am of opinion that Dengar Sheikh, the alleged lunatic, is of unsound mind and is a lunatic.
2. It appears also that before the Munsif Tofailaddi examined himself as a witness and the appellant Moizuddi Haji put in a petition asserting that the alleged lunatic was of unsound mind. When the Munsif's report was received on 2nd March 1929 the appellant filed a petition for time to produce witnesses. The District Judge then passed the following order:
I cannot quite follow on what point the objector wants to produce evidence. He will submit by 11th March; (1) whether he wants the alleged lunatic to be really a lunatic, (2) whether ho wants himself to be the guardian and manager of the alleged lunatic.
3. On 11th March 1929 the appellant Moijuddi Haji put in a petition stating that he was a fit and proper person to be appointed guardian and praying to be appointed as such. Thereafter the case being adjourned it was eventually taken up on 3rd May 1929, when, refusing an application for adjournment filed on behalf of the appellant and examining the respondent Tafailaddi, the learned Judge; appointed the latter as guardian of the person and manager of the properties of Dengar Sheikh. From this order the present appeal has been preferred.
4. Now it seems to us that in the procedure that was adopted by the Court below sufficient regard was not paid to the provisions of the Act and the principles underlying those provisions. In a recent decision of this Court Saroji Basini Debi v. Mahendra Nath Bhaduri : AIR1927Cal636 Rankin, C. J., has, on reference to some of the earlier cases on the subject, pointed out the necessity of very careful action on the part of the Judge in making an order for inquisition. He has observed:
it is indubitable that an order directing an inquisition into a man's state of mind is a very serious thing and that such an order is intended by the statute to be a judicial determination carefully made upon adequate materials. I do not understand how it can in general be wise to make such an order without at all events serving some sort of notice upon the lunatic first, and I should think that in this country a certain amount of care and attention in a matter of this sort is in no case thrown away. But the first thing that hag 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 inquisition. If he consider that it calls for an order directing an inquisition, then it is his obvious duty to record an order directing an inquisition.
5. The learned Chief Justice has also explained the scope and object of some of the more important sections dealing with procedure, e.g., Sections 62, 64, 40, 41 and 42 of the Act. In the present case no order directing an inquisition wa3 recorded nor does it appear that there was any judicial investigation of the question whether an inquisition was called for by the circumstances of the case. Indeed it would appear that merely upon a verification of the simplest possible character appended to a petition in the form of a tabular statement an order was passed on 25th September 1928 issuing a commission on the Munsif for an inquiry and report. The order passed as aforesaid looks more as one made with the object of ascertaining facts in order to determine whether an order of inquisition was called for or not. And yet, the investigation which the Munsif held under the order has been treated as the inquisition itself.
6. We are of opinion that the proceeding3 that have been held are not fit to be treated as the inquisition which the Act contemplates. We would have set aside the whole of the proceedings and directed the Court below to start them de novo as on the initial application of the respondent dated 26th May 1928; but in view of the materials now on the record that course does not appear to us to be necessary. We think it will suffice if we direct that an order of inquisition be now recorded by the District Judge as based upon those materials, and thereafter the inquisition contemplated by the Act be held in strict accordance with the provisions as to notice and other particulars as laid down in the Act itself. Courts cannot be too careful in dealing with cases under this Act, which are more often than not launched with a not very commendable motive.
7. The appeal is allowed. The order appealed from is set aside. The case is remanded to the Court of the District Judge to be dealt with as indicated above. There will be no order as to costs.