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Anilabala Chowdhurani Vs. Dhirendra Nath Saha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal309,65Ind.Cas.57
AppellantAnilabala Chowdhurani
RespondentDhirendra Nath Saha
Cases ReferredRadha Gobinda v. Nabadwip Chandra Pal
Excerpt:
lunacy act (iv of 1912), sections 37, 38 and 62 - lunacy--inquisition application--jurisdiction--high court and district court--civil procedure code (act v of 1908), section 20--'reside,' meaning of--animo residendi. - .....section 38, sub-section (1), then authorises the high court to 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, section 43, sub-section (1), authorises the court, if the alleged lunatic is not within the local limits of its jurisdiction, to direct the inquisition to be made before the district court within whose local jurisdiction the alleged lunatic may be. it is thus plain that the legislature contemplated that a person, subject to the jurisdiction of the high court for purposes of judicial inquisition us to alleged lunacy, may not be within the local limits of the jurisdiction of the court and may be within the local jurisdiction of a district court......
Judgment:

Asutosh Mookerjee, Acting, C.J.

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of the two Judges of a Division Court, who were equally divided in opinion, in the matter of an appeal under Section 83 of the Indian Lunacy Act, 1912, from an order made by a District Court in a proceeding for judicial inquisition as to the alleged lunacy of one Dhirendra Nath Saha Chaudhuri. The District Court held that it had no jurisdiction under Section 62 to direct an inquisition. Mr. Justice Teunon has held that the view taken by the District Court is correct and that the proceedings should have been instituted under Section 37 on the Original Side of this Court, Mr. Justice Beachcroft has held, on the other hand, that the District Court had jurisdiction under Section 62 to entertain the application when made and should have exercised the powers vested in it. The solution of the question raised depends upon the true construction of the provisions of the Indian Lunacy Act, 1912. But before we examine these provision, it is desirable to set out the facts found by the District Judge, which have not been challenged before us.

2. The alleged lunatic is a member of a family of Saha Chaudhuries, whose ancestral abode is at Parsadanga in the District of Pabna. The family residence at Parsadanga was partitioned in 1901 between the grandfather of the alleged lunatic and his two co-sharers, and was assigned to the shares of the letter, Gobinda, the grand father of the alleged lunatic, appears to have entertained an intention at one time to build a suitable family residence at Parsadanga, for his branch of the family; but this was not carried into effect owing to the death of his son Harendra. What actually happened was that Gobinda came to live in Calcutta, where he had a house in Hatkhola. Here he carried on a lucrative business in paddy and grains, and acquired considerable house property in Calcutta. During the last 13 years of his life, he lived in Calcutta, and his grandsons (the alleged lunatic and his brother Surendra) lived with him. Since the death of Gobinda in 1913, his two grandsons have separated from their uncle Jogendra and Lave continued to live in Calcutta, although they are accustomed to go once or twice every year to Pabna and Parsadanga to look after their landed property. The evidence shows that on an average they lived about nine or ten months every year in their Calcutta house, and about two or three months a year at Pabna and Parsadanga. The womenfolk of the family live in the Calcutta house, and it is only the men who visit the district occasionally. The petitioner Anilabala was married to Dhirendra, the alleged lunatic, about ten years before the commencement of these proceedings. She lived with him only in the Calcutta house, except in March 1917, when she took him to live with her in her father's house at Pabna. There, on the 22nd May 1917, Dhirendra executed a trust-deed in favour of Anilabala. Soon afterwards, his brother Surendra came to Pabna and managed to take him away from Anilabala to his own house. There on the 10th July 1917, Surendra caused Dhirendra to revoke the previous trust-deed and to execute a fresh trust-deed in his own favour. On the 14th August 1917, Anilabala instituted these proceedings in the Court of the District Judge at Pabna under the Indian Lunacy Act. 1912. On that date, Dhirendra was at Parsadanga; but on the next day, apparently as soon as the institution of the lunacy proceedings became known, he hurriedly left in charge of two men and reached Calcutta on the 16th August 1917. The question arises, whether in these circumstances, the District Court had jurisdiction to entertain the application.

3. The India Lunacy Act, 1912, which was enacted to consolidate and amend the law relating to lunacy, repealed the Lunacy (Supreme Courts) Act, 1858, and the Lunacy (District Courts) Act, 1858. The Act is divided into four parts. The first part contains one chapter which deals with preliminary matters. The second part contains two chapters which deal with the reception, care and treatment of lunatics. The third part treats of judicial inquisition as to lunacy, in two separate chapters, devoted respectively to proceedings in lunacy in and outside Presidency towns. The fourth part contains four chapters which deal with miscellaneous matters.

4. The fourth chapter, which treats of proceedings in lunacy in Presidency towns, begins with Section 37. That section lays down that the Court having jurisdiction under the chapter shall be the High Court of Judicature at Fort William, Madras and Bombay. Section 38, Sub-section (1), then authorises the High Court to 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, Section 43, Sub-section (1), authorises the Court, if the alleged lunatic is not within the local limits of its jurisdiction, to direct the inquisition to be made before the District Court within whose local jurisdiction the alleged lunatic may be. It is thus plain that the Legislature contemplated that a person, subject to the jurisdiction of the High Court for purposes of judicial inquisition us to alleged lunacy, may not be within the local limits of the jurisdiction of the Court and may be within the local jurisdiction of a District Court. It will be observed that Section 38 does not formulate the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for purposes of judicial inquisition as to alleged lunacy. In this respect the law is left as it was under Sections 1 and 8 of the Lunacy (Supreme Courts) Act, 1858. The fifth chapter, which treats of proceedings in lunacy outside Presidency towns commences with Section 62, which provides as follows:

Whenever any person, not subject to the jurisdiction of any of the Courts mentioned in Section 37, is possessed of property and is alleged to be a lunatic, the District Court within whose jurisdiction such person is residing, may upon application, by order direct an inquisition, for the purpose of ascertaining whether such person is of unsound mind and incapable of managing himself and his affairs.

5. It is thus plain that before a District Court can institute inquisition as to a person possessed of property and alleged to be a lunatic, it must be established not merely that such person is residing within the jurisdiction of that Court, but also that he is not subject to the jurisdiction of any of the High Courts mentioned in Section 37. This confirms the view that the Legislature undoubtedly contemplated, as we have already seen from Sections 38 and 43, that a person subject to the jurisdiction of a High Court for the purposes of judicial inquisition as to alleged Lunacy may reside within the local limits of the jurisdiction of a District Court. Consequently, in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Section 37, the District Court has no jurisdiction under Section 62, even though the person may reside within the local limits of the jurisdiction of the District Court. To put the matter briefly, the jurisdictions of the High Court and the District Court are not concurrent, but the jurisdiction of the High Court excludes that of the District Court; on the other hand, if the alleged lunatic resides in two districts, the jurisdictions of the two Courts are concurrent and not mutually exclusive. In this respect, the law as embodied in the preamble and Section 2 of the Lunacy (District Courts) Act, 1858, has been substantially reproduced in the Indian Lunacy Act, 1912. it follows, accordingly, that before it can be affirmed that the District Court was competent to entertain the present proceedings, the question must be investigated whether the alleged lunatic was or was not subject to the jurisdiction of this Court within the meaning of Section 38(1).

6. Section 38, as already stated, does not define the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial inquisition as to lunacy. Put if we look at the nature of the proceedings, it is clear that they are directed primarily against the person and only secondarily against his property. The right of the Court to learn judicially whether a person is or is not of unsound mind is inferred from the right to his care and custody, provided he is insane. In England, the custody and control of the persons of insanes and idiots was vested in the King as parent patri; consequently, the authority to direct an inquisition to be taken was also his, but was delegated to the Chancellor as the personal representative of the Crown by means of an official instrument called the 'Sign Manual' and was exercised by the Chancellor alone and not by the Court of Chancery: Grimstone, Ex parte (1772) Ambl. 706 : 27 E.R. 458, Burford (Corporation of) v. Lenthall (1743) 2 Atk. 551 : 26 E.R. 731 and Fitzgerald, In re (1805) 2 Schedule & Lef. 432 : 1 L.L. & G. 20. The jurisdiction in lunacy originally was thus in theory distinct from the general Chancery jurisdiction under the Great Seal; but once the fact of insanity had been adjudged in any particular case, a further jurisdiction then arose in the Court of Chancery to supervise and control the official conduct of the committee appointed to look after the person and property of the individual who had been adjudged as a lunatic. Consequently, the essential nature of the proceedings is that the authority vested in the Court is exercised in the first instance over the person of the individual concerned. Such authority over the person may, unless otherwise directed by Statute, be ordinarily exercised in the case of residents within the local limits of the jurisdiction of the Court. It may also be exercised over non-residents, if there is statutory provision to that effect. From this point of view, we may reasonably hold that the authority vested in the High Court under Section 38(1) may be exercised over individuals who reside within the local limits of the jurisdiction of the Court, but it need not be held at the same time that the exercise of the authority is restricted to such persons; for, as is well-known, the Supreme Court had jurisdiction over British subjects even though they were resident in a part of the province beyond the local limits of its jurisdiction: Manikchund v. Johnson (1785) Morton 131 : 1 Ind. Dec. (o.s.) 954, Vencataspur v. East India Co. (1816) 2 Strange (N.C.) 199 : 5 Ind. Dec. (o.s.) 336 and Maharanee of Lahore, In the matter of (1818) Taylor 428; a Ind. Dec. (o.s.) 256. The two questions which thus require examination in the present case are, first, was the alleged lunatic subject to the jurisdiction of this Court for the purposes of Section 38 of the Indian Lunacy Act, by reason of residence within its local limits, and, secondly, if he was a resident and so subject to the jurisdiction of the Court, did he cease to be subject to the jurisdiction of the Court, when he went to the district of Pabna in March 1917. In our opinion, the first question must be answered in the affirmative and the second in the negative.

7. It is fairly clear that the alleged lunatic must be deemed to have been a resident of Calcutta and subject to the jurisdiction of this Court within the meaning of Section 38 of the Indian Lunacy Act before he went to Pabna in 1917. The terms 'reside' and 'residence' have been the subject of judicial consideration on diverse occasions and in relation to a variety of circumstances. The expression 'to reside' has been held to signify 'to dwell permanently or for a considerable time,' 'to have a settled abode for a time,' 'to abide continuously,' 'to have one's domicile or home,' 'to remain for a long time.' The term 'residence' has been taken as equivalent to 'the abiding or dwelling in a place for some continuance of time,' and it has been said that to constitute a residence there must be a settled fixed abode or intention to remain permanently, at least for a time, for business and other purposes. In R. v. North Curry (1825) 4 B. & C. 953 at p. 959 : 107 E.R. 1313 : 7 D. & Rule 424 : 4 L.J. (o.s.) X.B. 65 quoted in Kumud Nath Roy v. Jatindra Nath 9 Ind. Cas. 189 : 38 C. 394 : 13 C.L.J. 221 : 15 C.W.N. 399 it was said that the word 'resides,' where there is nothing to show that it is used in a more extensive sense, denotes a place where an individual eats, drinks, sleeps, or where his family or his servants eat, drink and sleep Breull, Ex parte, Bowie, In re (1880) 16 Ch. D. 481 at p. 487 : 50 L.J. Ch. 384 : 43 L.T. 580 : 29 W.R. 299, Ford v. Drew (1879) 5 C.P.D. 59 : 49 L.J.C.P. 172 : 41 L.T. 478 : 28 W.R. 137 : 44 J.P. 58, Lewis v. Graham. (1888) 20 Q.B.D. 780 : 57 L.J.Q.B. 376 : 59 L.T. 35 : 36 W.R. 574 and Madho Prasad v. Walton 20 Ind. Cas. 370 : 18 C.W.N. 1050. These and other cases show that the term 'residence' is an elastic word, of which an exhaustive definition cannot be given; it is differently construed according to the purpose for which enquiry is made into the meaning of the term; the sense in which it should be used is controlled by reference to the object: Mahomed Shuffi v. Laldin Abdula 3 B. 227 : 2 Ind. Dec. (N.S.) 153 and Goswami Shri v. Shri Govardhanlalji 14 B 541 : 7 Ind. Dec. (N.S.) 825. Thus, for instance, under Section 3 of the Indian Divorce Act, it was ruled in Bright v. Bright 4 Ind. Cas. 419 : 36 C. 964 that in a petition for dissolution of marriage, where the husband and the wife had no permanent residence, the petition could be entertained by the Court having jurisdiction over the place where they last resided together, though for a short period, A narrower view has, on the other hand, been taken as to the true meaning of Section 5 of the Indian Insolvent Act, 1848 (11 and 12 Vict. c. 21): Ram Paul Singh, In re 8 C.L.R. 14 and DeDomet, In the matter of 21 C. 634 : 10 Ind. Dec. (N.S.) 1053. Again, with reference to Sections 321 and 322 of the Bengal Municipal Act, 1884, it has been ruled in Radha Gobinda v. Nabadwip Chandra Pal 31 Ind. Cas. 10 : 19 C.W.N. 1027 that a house, in which a person occupied rooms, though he was absent occasionally on duty, might well be regarded as his residence. In this connection, it may be

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