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Upendra Mohan Roy Choudhri Vs. Narendra Mohan Roy Choudhri and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal155
AppellantUpendra Mohan Roy Choudhri
RespondentNarendra Mohan Roy Choudhri and anr.
Cases ReferredKhan v. Serajuddin Khan
Excerpt:
- .....of khulna dated the 23rd september 1924, whereby he found that the appellant before us was of unsound mind and incapable of managing his affairs. the learned district judge came to this conclusion upon the evidence of the civil surgeon of khulna which was to the effect that the appellant was not in a sound condition and that he was suffering from a great deficiency of memory and from general weakening of mental faculties and this witness further states that he put many questions to the appellant and he could not in all cases give rational answers; and he further states that he came to the conclusion at which he arrived because he found great deficiency of memory and general weakening of mental faculties, and he states the various questions that he put to the appellant in the course.....
Judgment:

Greaves, J.

1. This is an appeal from an order of the District Judge of Khulna dated the 23rd September 1924, whereby he found that the appellant before us was of unsound mind and incapable of managing his affairs. The learned District Judge came to this conclusion upon the evidence of the Civil Surgeon of Khulna which was to the effect that the appellant was not in a sound condition and that he was suffering from a great deficiency of memory and from general weakening of mental faculties and this witness further states that he put many questions to the appellant and he could not in all cases give rational answers; and he further states that he came to the conclusion at which he arrived because he found great deficiency of memory and general weakening of mental faculties, and he states the various questions that he put to the appellant in the course of his examination. It appears that the appellant was under the observation of this gentleman for a considerable period and that he examined him some seven times in all. This witness further states that the appellant had no reasoning faculty and that his mind was not sound and that he was not able to manage his properties.

2. There was, further, the evidence of the appellant's wife Haridasi who states that the appellant had no power of understanding and could not say anything coherently and that he was like an inert mass and could not give any opinion after proper consideration.

3. There was also the evidence of a son of the appellant, Narendra and he states that his father's head was in a deranged condition since he had a stroke of paralysis and that he had no power to look after his health or his estate. He further states that the appellant did not like visitors, could not speak, would weep and call dead people.

4. The pleader Promotha Nath Dutta in his evidence stated that the mental condition of the appellant was not good and that he could not recognize known men and that he had lost his memory, and he speaks of seeing the appellant in a rude condition. Two other doctors, on the other hand, gave evidence to the effect that the appellant was not of an unsound mind. One of them, Babu Satis Chandra Ghose, states that he thought the answers to the questions that he put to the appellant were sound and ho says that he did not find any defect and that the appellant had a power to exercise judgment although his memory was impaired. The other Doctor is Phani Bhusan Roy who states that the appellant gave proper replies to the questions that he put to him and that the appellant also put intelligent questions to him, He further states that he noticed besides physical defect partial loss of memory probably due to paralysis combined with the old age of the appellant. This was the evidence which was before the District Judge when he arrived at the conclusion to which we have already referred; and the question which we have got to decide in this appeal is whether the conclusion of the District Judge was well-founded. Under the present Lunacy Act what the Courts have got to decide is whether the person before them is of unsound mind and is incapable of managing himself and his affairs and under the provisions of Section 65 of the Act it is open to the Courts to find that a man is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others. But what is to be borne in mind is that in order to arrive at the conclusion, at which the District Judge has arrived, it is necessary to find that the person is both of unsound mind and incapable of managing himself and his affairs. This was pointed out by a Division Bench of this Court in the case of Mazahar-ud-din Khan v. Serajuddin Khan [1906] 4 Cri.L.J. 115. That was a case under the Lunacy Act of 1858, Act 25 of 1858. But the words there in Section 2 are very much the same as in the present Act, namely, that the object of enquiry is to find whether the person was of an unsound mind and incapable of managing his affairs. The only difference, therefore, is that under the Act of 1912 you have to ascertain whether the person is of an unsound mind and incapable of managing himself and his affairs. We were referred to a Bombay case in the course of the argument. In the matter of Cowasji Beramji Lilaoovala [1883] 7 Bom. 15. That was a case under the Act of 1858 and Mr. Justice Latham there came to the conclusion that the term 'unsound mind' comprehended imbecility, whether congenital or arising from old age as well as lunacy or mental aberration resulting from disease. When the matter first came before this Court we read the evidence and the judgment of the learned District Judge and we came to the conclusion that it would be better that we should see the appellant ourselves. The appellant was accordingly produced before us yesterday in the presence of the learned advocate who appeared on his behalf and we put various questions to him in order that we could ascertain for ourselves, as also upon the evidence, whether the conclusion of the District Judge was correct and speaking for myself after having seen the appellant I am not prepared to find that he is a person of an unsound mind and incapable of managing himself and his affairs within the meaning of these words as used in the Act of 1912. There is no doubt, we think, that the mental condition of the appellant has been affected by the stroke of paralysis from which he suffered and both owing to to this and owing to his age his memory has, no doubt, been seriously affected and as has been pointed out to us he was unable to recognize either here or in the other Court his son-in-law and other relatives and apparently, the names of some of his daughters escaped his memory. But he was able to answer questions with regard to his estate with a certain amount of intelligence and also questions with regard to his family and having regard, to the evidence which was before the District Judge and which was read to us coupled with what we have gathered from the questions which were addressed to the appellant we think that the District Judge was not justified in the conclusion at which he arrived and the order which he made. We are not satisfied that the appellant is of unsound mind and incapable of managing himself and his affairs and the result is that we discharge the order of the District Judge. The manager appointed will be discharged after passing his accounts and he will hand over the property to the appellant.

5. Let the record be sent down at once.

Cuming, J.

6. I agree.


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