P L D 1964 (W (PLP)

Ss. 62, 65, 69 & 3(5)‑"Lunatic"

Must be one having mental derangement making him incapable of managing his affairs‑Person with weak or undeveloped intellect-- Not person of unsound mind ‑Woman described as simple minded"‑Not a lunatic who is incapable of managing her own affairs‑Factum of lunacy‑Should be determined judicially-- Court to refrain from arriving at finding on basis of own personal observation. M. M. Bhatti for Appellant. A. A. Bhatti for Respondents. Fateh Muhammad presented an application before the learned District Judge, Bahawalpur, under section 62 of the Lunacy Act, 1912. He alleged that Mst. Zainab Bibi was a Lunatic and incapable of managing her property. The petition was contested by Mst. Zainab Bibi. The learned District Judge by his order dated the 9th of February 1963, without giving a definite finding that Mst. Zainab Bibi was a lunatic, proceeded to take action under section 69 of the said Act. He directed the petitioner to move the Collector for obtaining his consent under section 69 of the Lunacy Act for appointment as a Manager, or in the alternative to propose some suitable names for this appointment. The case was adjourned to the 7th of May 1963 and again to 21st of June 1963, when the learned District Judge passed an order that the Collector having declined to manage the estate of Mst. Zainab Bibi the parties should submit suitable names for appointment as Manager. Ultimately, the learned District Judge by his order dated the 14th of September 1963, appointed Ghulam Nabi as the Manager after considering the merits of all the persons who were proposed for this appointment by the parties. In para. 2 of his order it has been remarked "In view of the history of the case given above and my own observations as to Mst. Zainab's mental condition during her examination in Court I hold that she is of unsound mind and was incapable of managing her land though she is not dangerous to herself or to others". Two appeals have been filed against this order of the learned District Judge dated the 14th of September 1963, namely, F. A. O. No. 8/63 by Mst. Zainab Bibi while F. A. O. No. 9/63 has been filed by Fateh Muhammad. Mst. Zainab Bibi has contested the finding of the learned District judge declaring her to be a lunatic and the consequential orders of the appointment of the manager while Fateh Muhammad petitioner in his appeal has prayed that Ghulam Nabi was not a fit person to be appointed as the manager. This judgment will dispose of both the appeals.

3. Before deciding the two appeals on merits I would like to point out that the procedure adopted in this case was not regular. The proceedings under section 69 of the Lunacy Act should have been started after the completion of the inquisition anti a final declaration by the learned District Judge as to whether Mst. Zainab Bibi, the alleged lunatic, was oh unsound mind and incapable of managing her affairs as require? by subsection (2) of section

65. If the finding was that Mst. Zainab Bibi was a lunatic and was of unsound mind so as to be incapable of managing her affairs then the learned District Judge should have proceeded under section 69 of the Lunacy Act. The parties should not have been directed to obtain the consent of the Collector. The learned District Judge should have made an enquiry from the Collector if he was prepared to take charge of the estate of the lunatic and in case he agreed to that an order could have been passed under section 69 (1) and the Collector would have then proceeded as required by sub section (2) of section 69 and section

70. If the Collector declined the learned District. Judge should have then proceeded under section 71 to appoint a manager of the estate of the lunatic. In his order dated the 15th of April 1963, the learned District Judge proceeded to take action under section 69 on the basis that it was agreed that Mst. Zainab Bibi was a simple minded woman. This finding did not warrant action being taken under section

69. The learned District Judge after he was informed of the refusal of the Collector to act as a Manager passed the second order dated the 14th of September 1963 and in this order he improved upon his earlier finding declaring that Mst. Zainab Bibi was of unsound mind and incapable of managing her affairs. The second order was necessitated because the procedure, as laid down in the Act, was not correctly followed.

4. On merits, there is no evidence to warrant the conclusion arrived at by the learned District Judge in his second order. Fateh Muhammad petitioner appeared as his own witness as P. W. 2 and he examined Noor Muhammad as his only witness. Noor Muhammad stated that Mst. Zainab Bibi was a very simple minded woman and was not intelligent enough to manage her own landed property. Fateh Muhammad described Mst. Zainab Bibi as an idiot and that she did not know anything about the management of her property. The petitioner never examined any expert to prove that Mst. Zainab Bibi was a lunatic and was incapable of managing her affairs. The learned District Judge by his order dated the 9th of February 1963, decided to examine Mst. Zainab Bibi who was present in Court. Her examination covers two pages and on reading the statement of Mst. Zainab Bibi I am convinced that she could not be regarded as of unsound mind and incapable of managing her affairs. The replies are coherent and she has described quite accurately the litigation that had been pending between her and Muhammad Siddique, who is the nephew of Fateh Muhammad petitioner, for the last about twelve years. She gave the date of her husband's death correctly and all other facts narrated by her in her statement clearly indicated that she was not of unsound mind. I fail to understand as to on what grounds the learned District Judge on the basis of this statement came to the conclusion that Mst. Zainab Bibi was of unsound mind. As a matter of fact, the allegations in the petition having been contested by Mst. Zainab Bibi, the learned District Judge should have refrained to come to a finding on the basis of his own observations. He is not a medical expert and he should have decided the case on the basis of the evidence led by the parties. Mst. Zainab Bibi was kept in the Mental Hospital for observation and the Medical Superintendent sent a certificate which is on the record. On behalf of Mst. Zainab Bibi, a request was made to the learned District Judge for summoning the medical witness who although summoned for the 9th of February 1963, had not appeared, but the learned District Judge refused to adjourn the case and closed the respondents' evidence. Thus because of this order of the learned District Judge this certificate has remained unproved. It has been remarked in the certificate that Mst. Zainab Bibi was mentally clear and could look after her affairs. Since the learned District Judge had formed his own opinion contrary to this certificate he declined to examine the medical expert. This was not proper. The fact that Mst. Zainab Bibi was a simple‑minded woman did not amount that she was lunatic and incapable of managing her own affairs. Such a declaration has far reaching consequences. It deprives the owner of the property, his right of enjoyment of the property, this is not a matter which should be thus lightly dealt with. The unsoundness of mind is entirely a different state of one's minds than his merely being a simple‑minded person. It must be established that the person has some sort of mental derangement which made him incapable of managing his affairs. Such a state of mind should not be confused with or regarded as analogous to a mere mental weakness or lack of intelligence. A person with a weak and undeveloped mind cannot be held to be a person of unsound mind. In proceedings under the Lunacy Act the Court must keep in view the distinction between mere weakness of intellect and lunacy as understood in the Act. In these proceedings the Court is only concerned with lunatics as defined in section 3 (5) of the Act. It is the duty of the Court to determine judicially on the evidence on record whether the person alleged to be a lunatic was really of such an unsound mind as to be incapable of managing his affairs. In the present case, even if the certificate of the Medical Superintendent of Mental Hospital, Lahore, is ignored as not having been proved according to law the rest of the evidence is so scanty that it cannot be made the basis of a finding that Mst. Zainab Bibi was of unsound mind and incapable of managing her affairs. The petitioner's only witness Noor Muhammad described her as a simple‑minded woman. The ipsi dixit of the petitioner that Mst. Zainab was an idiot cannot be accepted. It has been brought out in the evidence of Muhammad Ali that Muhammad Siddique who is the nephew of Fateh Muhammad petitioner put up a Nikahnama in 1951 that Mst. Zainab Bibi had remarried one Jamal Din. Thus they were able to get the property of Mst. Zainab Bibi mutated in their names. Mst. Zainab Bibi filed a suit to contest this which was decreed in the year 1957 and the property was again mutated in her name. However, the possession continued to be of Muhammad Siddique etc. They then filed a declaratory suit for setting aside the decree that had been passed in favour of Mst. Zainab Bibi. This suit was dismissed on the 25th of June 1960. The appeal was also dismissed and so was the regular second appeal in the High Court in the year 1962. It was thereafter that Mst. Zainab Bibi got the possession of the land. Immediately after that two suits have been filed by the petitioner's party, one for a declaration that Mst. Zainab Bibi was a lunatic and second for obtaining an injunction that she should not take forcible possession of the property in dispute. These suits are still pending. This application under the Lunacy Act was filed on the 30th of October 1962 out of which these two appeals have arisen. This clearly indicates that Fateh Muhammad petitioner and Muhammad Siddique were interested in the property of Mst. Zainab Bibi for their own benefit and they were not at all interested in the welfare of Mst. Zainab Bibi.

5. On the basis of what has been stated above, I would accept F. A. O. No. 8/63 with costs in both the Courts. In view of this judgment the appointment of Ghulam Nabi as the manager is automatically set aside and no order need be passed in F. A. O. No. 9 which is dismissed and the parties are left to bear their own costs in this appeal. K. B. A. Appeal accepted.