P L D 1961 Dacca 822 (PLP)

(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. Appeal accepted.