1995 PLP 1323 (MLD)

Rana Muhammad Azhar for Respondents. Date of hearing: 8th February, 1995. This is an appeal filed under section 83 of the Lunacy Act read with Order 43, Rule 1, C.P.C., against the order dated 27‑4‑1992 passed by the District Judge, whereby he refused to place restraint on the authority of respondent No. 2 to dispose of his property.

2. Relevant facts are that Muhammad Sharif appellant filed an application under section 62 of the Lunacy Act before the District Judge praying therein that he may be appointed as guardian of the person and property of Taj (respondent No. 2) who is deaf and dumb lunatic. The background of this application was that Niamat Ali respondent No. 1 got Mutation No. 268 entered on 16‑3‑1989 on the basis of an alleged gift made by Taj lunatic in his favour. This mutation was rejected because the Revenue Officer was of the opinion that donor appeared to be lunatic. On an appeal having been filed by Niamat Ali the case was remanded by the Collector, as the counsel who appeared on behalf of Taj conceded that gift mutation may be attested. The mutation proceedings are presently pending adjudication before the Assistant Collector. It was in the background of these circumstances that Muhammad Sharif who claims to be the maternal uncle of Taj filed the above application before the learned District Judge. He also filed an application for temporary injunction to the effect that Taj may be restrained from disposing of his property during pendency of the case. The application for temporary relief has been dismissed by the learned District Judge and it is against this order that the present appeal has been filed.

3. There is yet another aspect of the case. The land owned by Taj is stated to be under tenancy of Iqbal who is son of Muhammad Sharif. On behalf of Taj an ejectment application against appellant's son is presently pending before the Assistant Commissioner. The Tehsildar is also stated to have appointed the Lumbardar of the village as a referee with whom the rent is being deposited by Iqbal, since 1989.

4. The learned District Judge while refusing the application for temporary relief has made the following observation:‑‑‑ "I feel no good reason to place any embargo on respondent No. 2 to deal with his property as he deems proper." It is contended by the learned counsel for the petitioner that Taj is a lunatic and he is not in a position to look after his interests. On the other hand learned counsel for the respondents contends that according to the opinion of the Medical Board Taj is not a lunatic, he is only "deaf and dumb person who appears to be dullard", therefore, no restriction can be placed on his authority to deal with his property in any manner he likes. It is also contended by him that the considerations of balance of convenience and irreparable loss also do not exist to justify grant of temporary relief to the appellant.

5. Whether Taj is a lunatic or not, this matter is pending before the learned District Judge. It is yet to be decided in the main case. It is conceded by the learned counsel for the respondents that the alienation made by Taj, pendente lite, will be void if it is ultimately held by the learned District Judge that he is a lunatic. Apart from this, if Taj is allowed to alienate the property, as has been done by the learned District Judge, there will be no property left in respect of which the cause is pending before him. The learned District Judge has not acted properly in the exercise of his jurisdiction in so far as, he held that no embargo can be placed on Taj to deal with his property in any manner he deems proper. The authority to deal with his property can be conceded only if it is held conclusively that Taj is not a lunatic. But that question is yet to be decided. A very heavy duty is cast upon Court to look after the interests of a lunatic and to preserve his property. Unless it can be held that the owner is not a lunatic, it will be unjust and illegal to allow him to dispose of his property. A lunatic is not capable of understanding what is good and what is injurious to his interests. How can such a person be allowed to deal with his property, particularly when the final adjudication regarding his lunacy is sub judice.

6. Fur what has been discussed above the impugned order passed by the learned District Judge is modified to the extent that Taj (respondent No. 2) shall have no right to alienate the property, by means, of sale, gift and mortgage E etc, during pendency of the proceedings before the District Judge under the Lunacy Act. The parties are left to bear their own costs. The learned District Judge shali decide the matter pending before him; expeditiously, possibly within the next four months.

7. Before parting with the case I must observe that I have gained an impression after hearing the parties in person and seeing Taj who was present C in the Court, that both Muhammad Sharif and Niamat Ali are after the property of Taj. Previously Taj was living with Muhammad Sharif appellant who claims to be his maternal uncle but since 1989 he is living with Niamat Ali, who is brother‑in‑law of Muhammad Sharif. It has been stated before me that the rent received from the tenant is being deposited with the referee under the order of the Tehsildar. It is submitted before me that nothing is being paid by the referee to Taj, with the result that he is finding it difficult to support him. Accordingly, it is directed that during pendency of the main case before the learned District Judge, the referee, under supervision of the Tehsildar, shall pay the rent of the land deposited with him to Taj respondent, so that he may support himself with the income from the land owned by him. Office shall send a copy of this order to the Tehsildar for compliance. AA./M‑2062/Lah Order accordingly.