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Second Appeal No. 42 of 1958, decided on 26th January 1959.
S. 65‑Inquisition‑Court must decide that alleged lunatic is of unsound mind of such degree that he is not capable of managing himself and his property -Case of weakness in intellect and understanding does riot come under Lunacy Act (IV of 1912).
Two things are to be determined in an inquisition under section 65 of the Lunacy Act, 1912, that the alleged lunatic is of unsound mind of such a degre6 that he is incapable of managing himself and his properties and that though he might not be dangerous to himself or to the public he is incapable of managing his own affairs.
If it is a case of weakness in intellect and understanding certainly the case does not come within the provisions of the Lunacy Act.
The District Judge is not an expert nor he is competent to have any medical knowledge sufficient to determine the insanity or unsoundness of the alleged lunatic.
The casual observation of the alleged lunatic in the dock for sometime and the alleged testing of his insanity by the District Judge by putting questions which the alleged lunatic answered in an irrelevant way is not sufficient to determine question involved in inquisition.
The case was remanded with the following observations :-
"The alleged lunatic be placed under supervision of the Civil Surgeon of the district or of an appropriate doctor for a reasonable time and after obtaining his report and recording his evidence in this connection the District Judge will decide the case considering the other evidence on record."
Abdus Salam for Appellant.
Badrul Hyder Chowdhury for Respondent.
This appeal arises out of an inquisition proceeding under section 65 of the Lunacy Act of 1912 for the purpose of ascertaining whether Abdul Wadud, brother's son of the petitioner Golam Rahman, is a person of unsound mind and incapable of managing himself and his affairs and for appointment of a manager of the properties of such a lunatic.
2. The case of the petitioner is that Abdul Wadud son of late Basaratulla of village Satar, Police Station Laksham who happens to be the brother's son of petitioner Golam Rahman has lost the balance of mind and has become insane for the last 15 years. His wife Habiba Khatun also turned mad about 5 years ago and the said insane Abdul Wadud has got considerable, landed properties measuring 4.52 acres worth about Rs. 4,551.
3. The said insane was in his custody. It is alleged that the people taking advantage of his insanity created certain document of transfer in respect of his properties during his insanity and the petitioner also got certain document from him as he found 'that other people are taping document from the insane Abdul Wadud: It is stated that the petitioner is the uncle of the said insane and has got no interest adverse to that of his interest and he prays that he may be appointed manager of the person and property of the said insane.
4. After service of notice of the said application of the relatives of insane Abdul Wadud or other persons to whom, in the opinion of the Court, notice of the application should be given, the opposite‑party Habibullah Mia filed a written objection and contested the application. His case shortly stated, is that petitioner Golam Rahman was the step‑brother of the father of Abdul Wadud and his interest is quite adverse to that of the alleged insane Abdul Wadud, "that Abdul Wadud's own uncle Fazler Rahman is living jointly with him. That Golam Rahman is not a fit man to be appointed manager of the properties whether insane or not as he was in jail hajat, for period of four months in a dacoity case and he is a village tadbirkar of village cases and he is police survellie. It is also stated that Diljan Bibi, Mother of Abdul Wadud, executed a poshani deed in favour of one Abdul Aziz and the said poshani deed was released by the objector on taking settlement of '90 cents on payment of Rs. 2,000 and Golam Rehman wrote the raiyati settlement deed executed by Abdul Wadud in favour of Habibullah on 3‑2‑49, that Golam Rahman attested the deed of gift in favour of Abdul Wadud's son Abdul Awal, that the settlement taken by Hibibullah was on payment of Rs. 2,000, that foot only the objector but also the petitioner Golam Rahman and his younger brother Abdur Rahman have taken several kabalas and darraiyati settlement from the said Abdul Wadud, that now after receiving con sideration and transferring some of his lands Abdul Wadud entered into a conspiracy with the petitioner Golam Rahman and filed this application feigning insanity at the instance of Golam Rahman. It is further asserted that this Abdul Wadud is an imam of a mosque and leading congretional prayer and teaching Quran to the villagers arid reads Quran in the house of one Anwar Ali. In the circumstance he prayed that the said Abdul Wadud be kept under observation by the civil surgeon who would be able to find that Abdul Wadud was a sane man was feigning insanity at the instance of Golam Rahman and with a purpose.
5. The petition for inquisition and for appointment of manager is supported by two medical certificates, but the doctors, who granted the medical certificates, were not examined and, therefore, District Judge did not accept them in evidence. The District Judge sent the said Abdul Wadud under the supervision of the doctor in charge of the Comilla Central Jail and the doctor. in charge of that Jail, returned the case saying that it would not be possible to form a definite opinion without getting the previous history of lunatic which could not be gathered through the Super intendent of police. Thereupon the District Judge passed the following order :
"Let the alleged lunatic be discharged from Jail Superinten dent. Inform the parties and the Jail Superintendent."
The learned District Judge, it appears from his judgment, tested him as to whether he is an insane or not by putting questions and by observing his environments and he observed as follows :‑
"I saw Abdul Wadud and observed him in the dock and questioned him. He gave out his name as Matior Rahman, on being questioned him. On being questioned about his residence he replied that he is a resident of Pakistan. He replied to each of the questions after a great pause and each of the questions had to be repeated for times without number. The learned pleader for the opposite‑party also put questions and tried his best to obtain his reply. When he was questioned and tried his best to obtain his reply. When he was questioned about his marriage he stated he had married 30 pairs of wives and he has got many lands. In reply to a question whether his daughter calls him father, he answered how many daughters. Being further questioned he stated Yes'. He was repeatedly questioned about the wives, but he did not give any reply. On the other hand, he muttered something not audible. He looked like an idiot. It seemed that he had no power to fully understand anything properly. His look was vacant and general condition of his health is bad so much so, that he looked like an invalid."
Then the learned District Judge says :‑
"From what I have seen I am sure he is of unsound mind and is incapable of distinguishing between right and wrong and of managing himself and his affairs."
In dealing with the defence case and defence witnesses the learned District Judge pointed out that it was not denied that Abdul Wadud married a second wife in 1260 B. S. corresponding to 1953‑54 and he has got a daughter by that wife and that he executed a kabinnama at the time of that marriage and registered it in Sub‑Registrar's Office and it was also established that he was an Imam of Sridharpur Mosque and he taught and read Quran in the house of one Anwar Ali. The learned District Judge observed as follows :
"He looked like a religious minded man might have been an Imam of a Mosque and' tight have performed players and taught the Quran a few years back, when he was net of unsound mind. I am unable to believe that he, whom I have observed very carefully, is capable of performing prayers, teaching the Quran or doing similar other things at present. Assuming for the sake of argument that he read Quran and Milad and was an Imam of Sridharpur Mosque and a teacher in Poush last year as stated by the P. Ws. I am unable to hold that he has soundness of mind always. The fast that he signed his name in the documents of transfer and admitted execution before the Sub‑Registrar at the time of registration of the documents indicates that somehow or other he could sign his name without sufficient knowledge as to what he was doing".
Then tie came to his conclusion as follows :‑
"It seems to me that his relations and co‑villagers took advantage of his weakness in intellect and understanding and they somehow or other managed to get documents executed and registered by him in their favour with a view to create their title to these valuable properties without paying any consideration. The petitioner also could not check his temp tation of acquiring property in this manner when he found that his neighbours were taking documents from him."
Though the learned District Judge expressed himself by saying that he was not going to determine in this inquisition whether anybody acquire title to his land by any document, yet he observed
"I am satisfied that he has lost balance of mind and become insane for sometimes past and is incapable of managing himself and his affairs."
In this view of the matter he thought that it was a fit and proper case to appoint a suitable person as his Manager and appointed Golam Rahman manager of his person and properties with a direction that under section 76, Lunacy Act he will not mortgage, charge or transfer by sale, gift, exchange or otherwise any of his immovable properties without Court's permission. Against this decision the present appeal has been filed by the objector.
6. Mr. Salam, the learned Advocate for the appellant, con tends in support of the appeal that the learned District Judge should not have based his decision on his personal supervision as he was not an expert in this matter, particularly in view of definite allegation that Abdul Wadud after selling some of his properties entered into a conspiracy with Golam Rahman and is feigning insanity for the purpose of defeating the interest of those transferees and that he should have kept Abdul Wadud under the observation of medical officer to determine whether really he is an insane or not: His second contention is that weakness of intellect or the fact that Abdul Wadud is a lunatic by itself does not justify an action by the learned District Judge under section 65 of the Lunacy Act of 1912, but it is to be further proved that he is an insane to such a decree that, that ‑has incapacitated him in managing his own affairs and the proper ties. In support of his contention Mr. Salam has cited the cases Of Mr, George P. O. Sherman and another v. Edwin Sherman Schorn: Mazaharuddin Khan v. Serajuddin Khan ; Upendra Mohan Ray Choudhury v. Narendra Mohan Ray Choudhury and Mst. Teka Devi v. Gopal Das and another.
7. Lunatic has been defined in the Lunacy Act (IV of 1912) to mean an idiot or a person of unsound mind. Section 62 of the Act 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."
Section 65 of the Act provides :‑
"(1) The District Court, if it thinks fit, may appoint two or more persons to act as assessors to the Court in the said inquisition.
(2) Upon the completion of the inquisition, the Court shall determine whether the alleged lunatic is of unsound mind and incapable of managing himself and his affairs or may come to a special finding that such alleged lunatic 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."
Section 67 provides :‑
" (1) The Court may make orders for the custody of lunatics so found by inquisition and the management of their estates.
(2) When upon inquisition it is specially found that the person to whom the inquisition relates is of unsound mind so as to incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others, Court may make such orders as it thinks fit for the manage ment of the estate of the lunatic including proper provisions for the maintenance of the lunatic and such members of his family as are dependant on him for maintenance, but it shall not be necessary to make any order as to the custody of the person of the lunatic."
Section 68. If the estate of a lunatic so found or any part thereof consists of property which, by the law for the time being in force, subjects the proprietor, if disqualified, to the jurisdiction of the Court of Wards, the Court of Wards shall be authorised to take charge of the same."
In the case reported in 24 Weekly Reporters 124, it was held that : ‑
"Unsoundness of mind taken by itself is not sufficient to bring a person within the meaning of the term "lunatic" as used in Act XXXV of 1858, unless it would incapacitate him from managing his affairs nor, on the other hand, will a person who is incapable of managing his affairs be a lunatic, unless that incapacity is produced by unsoundess of mind."
6. For the purposes of this act, the observation of the patient by medical witnesses, between the date of petition "and the date of actual hearing, would be sufficient for ascertaining his state of mind at the time of inquiry."
In the judgment of that case their lordships observed :
"As to Dr. Moir and Dr. Payne than whom no person in India is probably snore competent to form an opinion in this matter, their observation was limited to the space of about 20 minutes, three or four days before the Judge had heard the petition, and in this stage of the facts we do not feel nor is there anything on the face of the proceedings to suggest confidence, that the result .of a single inspection or a single experiment would justify an opinion as to such permanent infirmity of mind in the patient as would disqualify him from managing his affairs. There is no testimony of any such person as saw or had occasion to see the patient daily, was acquainted with his life and habits, and took interest in him, and in the absence of any such evidence, it would be in our opinion utterly unsafe to rely upon the result of a single interview between the patient and that medical officer. We think it will not only be more regular, but in every respect better and safer, that the present proceedings and inquiry should be quashed and if this case must be carried further, it must be commenced de novo, and the Judge should not come to a determination without having before him full and satisfactory evidence."
In the case in Mazahruddin Khan v. Serajuddin Khan, Ghose and Mitra, JJ., of the Calcutta High Court held :
"A lunatic, within the meaning of section 23 of Act XXXV of 1858, must be incapable of managing his own affairs and must also be of unsound mind.
Mere weakness of intellect is not unsoundness of mind within the meaning of the section.
Where, therefore, a person is found to be only of a weak intellect, the Civil Court cannot proceed under this Act, although the person may from such weakness of intellect, be incapable of managing his own affairs."
7. It is open to the petitioners in such a case to move the Court of Wards under Act IX of 1879.
In that case their Lordships, after carefully going through the evidence adduced on either side observed ; "In order to enable us to pronounce a satisfactory judgment upon the true question raised in this case the appellant should be placed under medical supervision for a time" and directed the District Judge to place him under such supervision and then examine the medical officer under whose supervision the alleged lunatic might be placed, and send up such evidence to the Court with any remarks that he might desire to make. The District Judge placed appellant under the supervision of the Assistant Surgeon of the District and according to the evidence of that officer as recorded by the Judge, their Lordships held :‑
"It seems to us perfectly clear that the appellant is certainly a roan of weak intellect and incapable of managing his own affairs, but we are unable to say, upon such evidence, that he is a person of unsound mind."
It was argued in that case that "if the appellant is of weak intellect and incapable of managing his own affairs, it necessarily shows that he is a man of unsound mind and that, therefore, we ought to adjudge him as such." But their Lordships answered this question saying :‑
"The word lunatic has been defined in section 23 of Act XXXV of 1858. It says the word lunatic as used in this Act, unless the contrary appears from the context shall mean every person found by due course of law to be of unsound mind and incapable of managing his affairs, and section 2 of the Act says, that the inquiry must be directed to the question whether the person is or is not of unsound mind and incapable of managing his own affairs, so it is perfectly clear that two things must be proved first that the man is of unsound mind; and second, that he is incapable of managing his own affairs."
Their Lordships, relying on the case reported in 24 C W N 124 that a person may be of weak intellect and 'incapable of managing his own affairs, but it did not now follow from this that he is either imbecile or of unsound mind, set aside the order of the District Judge holding that :
"Though the appellant is, by reason of weak intellect; incap able of managing his own affairs, yet he cannot be declared to be a person of unsound mind."
In the case reported in Upendra Mohan Ray Choudhury v. Narendra Mohan Ray Choudhury and another Greaves and Cuming, JJ., relying on the case held as:
"Under section 65 of the Lunacy Act what the Court has to decide is whether the person before it is of unsound mind and is incapable of managing himself and his affairs, and it is open to the Court to find under that section that a man is of unsound mind 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.
A person whose mental condition has been affected by a stroke of paralysis as a result of which his memory has become seriously defective but who is able to answer questions with regard to his family and his estate with a certain amount of intelligence cannot be said to be of unsound mind and incapable of managing himself and his affairs within the meaning of section 65 of the Lunacy Act."
Their Lordships also quoted with approval the observation of Mr. Justice Lethal in the matter of Cowasji Beramji Lilaoovala (7 Bom. 15), in a case under Act 1858 and Letham J., came to the conclusion that the term "unsound mind comprehended imbecility, whether congenital or arising from old age as well as lunacy or mental alienation resulting from disease". In that case reported in 90 I. C. 878 their Lordships directed the alleged fanatic to be produced before them in the High Court and Greaves, J., after observing the alleged lunatic observed as follows :‑
"I am not prepared to find that he is a person of a 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 this and owing to his age his memory has, no doubt, been seriously affected."
8. From the above decisions and the provisions of the Lunacy Act quoted above, it is quite clear that two things are to be determined in an inquisition under the said Act, that the alleged lunatic is of unsound mind of such a degree that he is incapable of managing himself and his properties and that though he might not be dangerous to himself or to the public but incapable of managing his own affairs. From the evidence adduced it appears that after the alleged transactions, said to have been entered into by the lunatic Abdul Wadud, he married a second time in 1360 B. S. And executed a kabinama and re gistered the same before the Sub‑Registrar after admitting the execution. Further, it appears that he appeared before the Sub -Registrar to admit the execution of all documents he admittedly executed. It is also proved that the alleged lunatic Abdul Wadud is an Imam of Sridharpur mosque where he leads congregational prayer, teaches reading of Quran and he himself reads Quran in the house of one Anwar Ali and, according to one witness, up to two months before his deposition; vide D. W. 4. The learned District Judge observed‑
"He looked like a religious minded man and might have been an Imam of a mosque and might have performed prayer and taught the Quran a few years back, when he was not of unsound mind."
Then the learned Judge observed :‑
"It seems to me that his relations and co‑villagers took advantage of his weakness in intellect and understanding and they somehow or other managed to get documents executed and registered by him in their favour with a view to create their title to those valuable properties without paying any consideration."
9. If it is a case of weakness in intellect and understanding certainly the case does not come within the provisions of the Lunacy Act (Act IV of 1912). In the case of Mst. Teka Devi v. Gopal Das and another, it has been held :
"In assuming jurisdiction under the Lunacy Act the Court must keep in view the distinction between mere weakness of intellect and "lunacy" as understood in the Act. It is only with lunatics as defined in section 3 (5) that Act is concerned. It is, therefore, duty of the Court before proceeding further to determine judicially whether the person alleged, "alleged to be incapable of managing himself or his affairs is really a lunatic' in this sense. The finding has got very far‑reaching consequences and. must be given after very great care and deliberation. The elaborate procedure laid down by the legis lature for conducting an inquiry into the matter must be strictly followed. The Court should not consider itself relieved of its responsibility by the mere circumstances that some of the persons concerned have declared that he is a lunatic. The Court ought to form its own independent judgment on the point."
10. Then coming to the observation of the lunatic by the District Judge, I think it is enough to refer to the observation of Jackson, J. in the case reported in 24 Weekly Reports 124 which I have already quoted above. The District Judge is not an, expert nor he is competent to have any medical knowledge sufficient to determine the insanity or unsoundness of the alleged lunatic ; particularly in view of the allegation that the alleged lunatic, in conspiracy with the petitioner Golam Rahman, is feigning insanity at the instance of the said Golam Rahman and with a purpose. The casual observation of the alleged lunatic in the dock for sometime and the alleged testing of his insanity by the District Judge by putting questions which the alleged lunatic answered in an :irrelevant way is not sufficient to deter mine question involved in inquisition. In the case of Jan Muhammad it was held that "Where the factum of lunacy is contested, it is the more necessary that the Court should not base its conclusion on its personal observation alone, but the procedure provided in section 62 should be followed."
11. There is a further question involved in this as to whether Golam Rahman, the petitioner should be appointed a manager of the person and property of the lunatic. Even if he may be appointed manager of his person but would it be safe to appoint him manager of the properties particularly in view of the fact that he also took certain documents in respect of the properties from the lunatic alleging that he saw people are taking advantage of this and so he took some documents from him in respect of his properties. Apart from the character of, Golam Rahman as alleged in the written statement, the learned District Judge has not considered this allegation nor has he determined the question whether he is a proper person to be appointed manager of properties of the lunatic. It appears that the learned District Judge was carried away by statement of Golam Rahman that he did not want to be a manager of properties of; the lunatic and he has no objection to the appointment of any other person fit and proper though in the petition he prays that he may be appointed manager of the properties. Further, it appears from petition of objection that his own brother Fazler Rahman, who was living jointly with tb6 lunatic, is still alive. In the circums tances, I cannot but set aside the judgment and order of the learned District Judge and send the case back to the District Judge with a direction that the alleged lunatic Abdul Wadud be placed under supervision of the Civil Surgeon of the district or of an appropriate doctor for a 'reasonable time and after obtaining his report and recording his evidence in this connection, The learned District Judge will decide the case considering the other evidence on record. I further direct the District Judge that he will also determine the question of appointment of a proper manager of the alleged lunatic if it is found that he is of unsound mind and capable of managing himself and his affairs and then appoint a proper person with necessary direction for the safety of the properties of the alleged lunatic and his family.
12. The result, therefore, is that this appeal is allowed and the judgment and order of the District Judge are set aside and the case is sent back to that Court for determination of the question involved in the case according to law and in the light of the observation made above and also to determine the question of appointment of a proper guardian with necessary direction.
Costs of this appeal will abide the result.
K. M. A.
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