Thathunni Mooppil Nayar v. Kochunni Nayar — 1958 DIGILAW 68 (KER)

JUDGMENT : Vaidialingam, J.- 1. This appeal is by the respondent in O.P. 31/57, District Court, Palghat, against the order dated 9th August, 1957. O.P. 31/57 was an application by the respondent herein for directing an inquisition under the Indian Lunacy Act - Central Act IV of 1912 and for passing necessary orders to ascertain whether the appellant is not a person of unsound mind and as such incapable of managing himself and his affairs. 2. In brief, the allegations in the original petition were that the appellant is the senior-most male member in the Mannarghat Nair family and is the holder of the Sthanom known as Mannarghat Mooppil Nair. The applicant claimed to be an Anandravan and the third member of the Swaroopam. The appellant was alleged to be imbecile and deranged in mind and that he has become incapable of managing his affairs on account of the unsoundness of mind. The appellant was further alleged to be unable to understand things or talk coherently and also as having lost his memory. The appellant has filed a counter-affidavit and is contesting the said application under the Lunacy Act. He has stated in his counter-affidavit that he is the holder of the Mannarghat Mooppil Sthanom which is a very ancient Sthanom with separate properties, separate assessments and separate management. It is also stated that the income of this Sthanom is at the absolute disposal of the appellant which he is entitled to appropriate as he pleases. The allegations of being imbecile or of unsound mind are being hotly contested by the appellant. He has stated that having due regard to his age, he was perfectly healthy and physically and mentally fit. The right to take proceedings against him under the Indian Lunacy Act is also challenged. It is further stated that these are all only attempts to coerce the appellant to recognise some right in others in the properties of the Sthanom. A suit, O.S. 65/1956 on the file of the Sub-Court, Ottappalam has been filed by another party for partition of the properties basing some rights on Madras Act XXII of 1955 and that suit has been engineered by the respondent. Proceedings taken under the Lunacy Act are all only with a view to coerce the appellant to recognise some right in the plaintiff in the said suit and also the petitioner in this Original Petition. 3. Proceedings taken under the Lunacy Act are all only with a view to coerce the appellant to recognise some right in the plaintiff in the said suit and also the petitioner in this Original Petition. 3. On 8-3-57, when the application came up before court, the learned District Judge directed the examination of the appellant by the District Medical Officer, Palghat and the District Medical Officer has filed a report dated 20-7-57 stating that his observations and examinations of the appellant herein on 4 days have not revealed any signs or symptoms pointing to unsoundness of mind and that certain irrelevant utterances referred to in his report are attributable to early senile changes which sometimes occur in some cases with advancing age. When the matter came up again before the court on 5-8-57, the learned District Judge, Palghat, by consent of counsel appearing for both parties, passed the following order:— “For examination of the alleged lunatic in the District Judge's bungalow as suggested by parties 18-8-1957.” 4. After this consent order was passed, the learned District Judge appears to have realised that judicial work should be done ordinarily only in the court and that any variation from that practice can be only with the previous sanction of High Court. This was in consequence of the Circular Orders issued by the Madras High Court. When the learned Judge realised this mistake, he directed the hearing of the application at an earlier date after giving notice to the counsel on both sides and took up the further hearing on 9-8-57. On that day, an affidavit appears to have been filed before the learned District Judge that the appellant unable to move about at that time and hence he cannot come or be brought to court. The learned Judge evidently was not satisfied about the reasons given in the affidavit especially when no medical certificate was also filed along with the affidavit and also in view of the fact that the statements in the affidavit were strongly controverted by the respondent herein. Therefore, on that day, the learned District Judge passed an order as follows: “It may not be proper to examine the alleged lunatic at any place other than the court house. Hence the direction given before is set aside. He will appear in court or in my chambers in court on 23-8-57.” 5. Therefore, on that day, the learned District Judge passed an order as follows: “It may not be proper to examine the alleged lunatic at any place other than the court house. Hence the direction given before is set aside. He will appear in court or in my chambers in court on 23-8-57.” 5. The present appeal is against that order of the learned District Judge dated 9th August, 1957 directing the appellant to appear in court or in his chambers in court. The main contentions urged before us by Mr. T.N. Subramonia Iyer, learned counsel for the appellant is that the order of the learned District Judge directing the appellant to appear before him is illegal, in view of section 41 of the Indian Lunacy Act. Though the application was filed before the District Court under sections 62, 63 and 71 of the Act, section 64 of the Act makes the provisions of sections 40, 41 and 42 applicable to proceedings before the District Court with regard to the matters to which they relate. Under section 41 of the Act, the court is given power to require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the court or by any person from whom the court may desire to have a report of the mental capacity and condition of such alleged lunatic. 6. According to the learned counsel for the appellant, under section 41, there are two alternatives for the court to adopt namely, either to require the lunatic to appear before the court for being personally examined, or give directions to any person to have report of the mental capacity and condition of the lunatic. In this case, the learned Judge has adopted one of the alternatives. In that he has asked the District Medical Officer to examine the appellant and send his report. The report of the Medical Officer is before the court and the duty of the court in such circumstances is only to proceed on the basis of the medical report and therefore, it is not open to the court again to direct the alleged lunatic to appear before him for personal examination. The report of the Medical Officer is before the court and the duty of the court in such circumstances is only to proceed on the basis of the medical report and therefore, it is not open to the court again to direct the alleged lunatic to appear before him for personal examination. Therefore, the order of the learned District Judge directing the alleged lunatic to appear when there is already the report of the District Medical Officer, is one passed without jurisdiction. 7. On the other hand, the learned Advocate-General appearing for the respondent, has contended that the order of the learned District Judge is within his jurisdiction. The proceedings are in a preliminary stage and as laid down by the authorities, it is very desirable that the court should have an opportunity of seeing the alleged lunatic before starting inquisition proceedings. He has also contended that this is only an attempt by the appellant to go behind the original order which was one passed by consent. Further there was absolutely no evidence placed before the court on 9-8-57 about the truth of the allegations mentioned in the affidavit about the condition of the appellant. When once there was an agreement for the production of the appellant before the residence of the Judge, at any rate, it is not open to the appellant to go behind the same. 8. Mr. T.N. Subramonia Iyer has also referred to certain decisions to the effect that declaring a person lunatic is a very serious matter and a decision should be taken only after a very careful examination of all the circumstances of the case. In our opinion, those decisions have no application at all to the facts of the case before us because the object of the examination of the alleged lunatic by the court is only in the nature of a preliminary examination to enable the court to decide as to whether inquisition proceedings should be proceeded with. 9. We are not able to accept the contention of Mr. Subramonia Iyer that under section 41 of the Act, the court has got power to adopt only one of the alternatives mentioned therein. We do not find in the words of that section any such limitation on its power. 9. We are not able to accept the contention of Mr. Subramonia Iyer that under section 41 of the Act, the court has got power to adopt only one of the alternatives mentioned therein. We do not find in the words of that section any such limitation on its power. The section is an enabling one and only amounts to this i.e., it may either decide to examine the alleged lunatic personally or call for a report from any person about the mental capacity and condition of the alleged lunatic. The section nowhere says that once the court has decided to call for a medical report, it has no power also to personally examine the lunatic. In this case, the respondent has filed objections to the medical report. In our opinion, the court has got ample powers to call for a report from the Medical Officer and also to satisfy itself about the condition of the party by a personal examination. The examination by a Medical Officer does not exclude the power of the court to require the alleged lunatic to appear before it for personal examination. 10. On the other hand, the decisions of the High Courts lay down that before an inquisition is ordered, there ought to be a careful and thorough preliminary enquiry and the court ought to satisfy itself that there is a real ground for an inquisition. It is also laid down that it is desirable that the Judge should seek some personal interview with the alleged lunatic with a view to satisfy himself that there is real ground for supposing the existence of an abnormal mental condition which might bring the person within the Lunacy Act—Vide Muhammad Yaqub v. Nazir Ahmad (I.L.R. 42 Allahabad 504); Tawassual Hussain v. Abrar Husain (I.L.R. 49 Allahabad 504); Saroj Basini Debt v. Mahendra Nath Bhadu (I.L.R. 54 Cal. 836). Further in this case, there was no dispute that the appellant should be seen by the learned District Judge at any rate in his residence. In our opinion, the order of the learned Judge complained of, is perfectly justified. But we make it quite clear that we say nothing about the merits of the contentions raised by the parties in the main Original Petition. 11. Mr. T.N. Subramonia Iyer further made a submission that the personal examination of the appellant may be done by the Subordinate Judge of Ottappalam. But we make it quite clear that we say nothing about the merits of the contentions raised by the parties in the main Original Petition. 11. Mr. T.N. Subramonia Iyer further made a submission that the personal examination of the appellant may be done by the Subordinate Judge of Ottappalam. We do not think that this request can be accepted, as this will be really contrary to the provisions of section 62 of the Act as in this case, the appellant is not residing at a distance more than 52 miles from the District Court. Lastly, Mr. Subramonia Iyer submitted that directions may be given to the learned District Judge of Palghat to avoid giving of publicity in the matter of the examination of the appellant. There is the order of the learned District Judge directing the appellant to appear in court or in his chambers in court. We do not in any way, propose to interfere with the learned Judge's direction in such matters by giving any directions. 12. In the result the appeal fails and is dismissed with costs. C.M.A. No. 167 of 1957.