JUDGMENT 1. By this order we propose to make certain interim provisions. We do not think it is either necessary or advisable to make a final order on the Petition, for reasons that will be self-evident from the rest of this order. 2. The two Petitioners are sisters. They are the daughters of one Kamar Sultana Mohamed, today about 84 years old. Kamar is presently in a hospice that provides specialized care. This is the Jagruti Rehabilitation Centre, Navi Mumbai. The Petitioners' father, Moideen Mohamed, died on 13/7/2015. The Petitioners' brother, Laike Mantori, is not a party to this Petition. He is 60 years old, and lives in London UK. He has in writing consented to the relief sought by the Petitioners in the present Petition. That consent is at page 68 of the paper book. 3. Kamar has been diagnosed with and is suffering from dementia. She requires continuous medical supervision. After considerable thought and deliberation, on 19/2/2019, Kamar was admitted to the Jagruti Rehabilitation Centre. It has a dedicated wing for dementia care. In addition, arrangements were made to employ a personal caregiver from an agency called Arogya Healthcare. That caregiver looks after Kamar exclusively 24 hours. Kamar is today in such a condition that she needs assistance for every daily routine activity. She cannot make cogent decisions by herself and can do nothing on her own. 4. The Petitioners seek an order for their appointment as guardians and managers of the person and properties of Kamar. They specifically seek the power of appointment in respect of Kamar's bank accounts for payment of her expenses, debts and liabilities including tax payments, medical expenses, co-operative society dues, utility bills etc. Kamar was residing and had some rights in a residential flat No. H-18, Heliopolis, Shahid Bhagatsingh Road, Colaba, Mumbai 400 005 and its associated garage. 5. One of the additional prayers before us is for leave to let out flat on a leave and license basis. Though there may be some issues regarding the precise ownership sharing of the flat, we are not required to pronounce on this. The brother has in any case agreed to the proposal to give out the flat on a leave and license basis and about this there is no controversy. 6. Though there may be some issues regarding the precise ownership sharing of the flat, we are not required to pronounce on this. The brother has in any case agreed to the proposal to give out the flat on a leave and license basis and about this there is no controversy. 6. The Petition says that it was in late 2018 that the three children were advised to have their mother admitted to a specialized care facility for her better safety, treatment and care. The Petitioner's brother came to Mumbai from London so that all three could take a final decision. Kamar was admitted to JRC on 19/2/2019. This was chosen as it had a dedicated wing for patients diagnosed with dementia. Two certificates from JRC are annexed. The centre has two branches. Kamar was first in the branch in Pune and was later transferred to the Navi Mumbai branch on 26/12/2019. This is closer to where one of the Petitioners reside in Mumbai. 7. Paragraph 11 of the Petition says that Kamar was financially independent all her life. Her finances and affairs were managed by her secretary who left her service after Kamar was admitted to the JRC. 8. Kamar primarily banked with the Vijaya Bank, Colaba. That bank has now merged with the Bank of Baroda. This is Respondent No. 4. She also apparently has an account with HDFC Bank, Respondent No.5, at its Kamla Mills Branch at HDFC house, Senapati Bapat Marg, Lower Parel, Mumbai 400 013. There may be other bank accounts. After repeated requests, Vijaya Bank agreed to make certain payments for Kamar's expenses. These are set out in paragraph 13. The Petition says that these disbursements were irregular and required repeated follow up. Once Vijaya Bank was merged with the Bank of Baroda, the new officer now in charge only agreed to pay for medical expenses at JRC but declined to allow any other payments. Some of this correspondence is annexed. Exhibit- 'E' to the Petition has a list of bank accounts and bank lockers. This is information that the Petitioners have been able to obtain so far. There is also a statement at Exhibit 'F' of the balance to Kamar's credit now with the Bank of Baroda which stands in the amount of little over Rs.2.35 crores. The Petitioners have obtained certain further information regarding online access, the HDFC bank account and so on. This is information that the Petitioners have been able to obtain so far. There is also a statement at Exhibit 'F' of the balance to Kamar's credit now with the Bank of Baroda which stands in the amount of little over Rs.2.35 crores. The Petitioners have obtained certain further information regarding online access, the HDFC bank account and so on. It seems that her tax returns have for these reasons remained to be filed. Returns are yet due for the Assessment Year 2020-2021. There is a risk of penalties for late/non-filing of returns. Chartered Accountant's bills for a previous Assessment Year have only recently been paid following an interim orders dtd. 24/9/2021. There are also dues to the co-operative society, but which have presently being cleared. There may be other expenses towards maintenance and repairs of the flat. 9. Paragraph 27 records that by a registered deed of gift dtd. 28/7/2014, Kamar transferred 50% of the flat to the name of the 1st Petitioner and this led to differences between her and the Petitioners' brother. We are not engaging in that controversy today. 10. The question is what appropriate order can be made in exercise of our writ jurisdiction under Article 226 of the Constitution of India. There are Affidavits filed by the State Government. These make reference to various other Acts relating to disabilities. The submission is that there are other statutory authorities that can be charged with looking after Kamar's well being and needs, both financial and otherwise. 11. We do not however believe that hands of the Writ Court in a matter such as this are necessarily constrained by the provisions of a statute or the existence of a statutory body. That approach, commended by the State Government, may have been preferable had such an application being brought by an outsider, that is to say, someone outside the immediate family, and it might have been prudent in those circumstances. But when Kamar's three children are agreed on a course of action, should the Writ Court decline the Petition and refuse relief only because their exists a competent authority established by statute? We do not believe that is the state of the law. 12. But when Kamar's three children are agreed on a course of action, should the Writ Court decline the Petition and refuse relief only because their exists a competent authority established by statute? We do not believe that is the state of the law. 12. Mr Khambata, learned Senior Counsel for the Petitioners, has placed before us a note on the various statutes in question including the Mental Healthcare Act 2017, The Rights of Persons with Disabilities Act 2016 and what we will refer to as the National Welfare Trust Act of 1999. 13. Overriding all these is the doctrine of parens patriae, one that was discussed by the Supreme Court in Aruna Ramchandra Shanbaug v Union of India and Ors, (2011) 4 SCC 454 and more recently in Shafin Jahan v Asokan KM and Ors.2018 16 SCC. The Supreme Court has said that the parens patriae doctrine may be invoked in a Constitutional Court in exercise of its jurisdiction wherever the welfare of the person, be it a child or a person who is mentally ill, needs protection. The doctrine is invoked to meet the ends of justice. It is not to be applied blindly in every case, but in exceptional cases where the subject of the petition is not mentally or physically capable (or is of a very young age) and where there is no other parent or legal guardian. This is perhaps a reversal of the usual guardian-and-ward doctrine. There, a birth parent is the natural guardian of the person and property of the minor child. But reverse situations have often come to court, where it is the parent who needs care from the child. The law does not explicitly or automatically recognise the child as the legal guardian of the parent, and it is for this purpose that the parents parens patriae principle is invoked to provide precisely such relief. In Rajni Hariom Sharma V Union of India and Anr,2020 SCC OnLine Bom 880. a Division Bench of this Court had before it the claim of a wife to be appointed the guardian of her husband, said to be in a vegetative state. In paragraph 17, the Division Bench said: "17. In Rajni Hariom Sharma V Union of India and Anr,2020 SCC OnLine Bom 880. a Division Bench of this Court had before it the claim of a wife to be appointed the guardian of her husband, said to be in a vegetative state. In paragraph 17, the Division Bench said: "17. Learned counsel for the petitioner submits that by virtue of being the wife of Mr Hariom Sharma, petitioner is in the best position to act as his guardian considering his comatose condition and vegetative state for the last more than two years with no sign or prospect of revival. She can certainly be construed as the next friend and appointed as the guardian. On a query by the Court on what basis she was invoking writ jurisdiction of the Court, learned counsel for the petitioner submits that there is no statutory provision relating to appointment of guardian of a person who is in a state of coma or lying in a vegetative state. Therefore, a writ court exercising jurisdiction under Article 226 of the Constitution of India would be in the best position to grant relief to the petitioner.... 14. This and other decisions were considered in Vijay Ramchandra Salgaonkar v the State, a judgment of 17/7/2021 by a Bench of which one of us (Madhav J Jamdar J) was a member Writ Petition No. 637 of 2021. The Petitioner sought an order appointing himself as the guardian of his wife. She too had dementia (apart from other ailments). The Bench reviewed some of the case law on the subject and in paragraphs 15 to 16 held: "15. Writ Petition No.9712 of 2017 was filed before this Court by Santosh Rohidas Deshmukh seeking a direction to appoint him as a guardian of his father Rohidas Deshmukh who was not in a position physically and mentally, to take care of himself and managing his property. After referring to the decision of Madras High Court in the case of Sairabanu Mohammed Rafi Vs. State of Tamil Nadu, Writ Petition No.28435 of 2016 decided on 6/1/2016, this Court appointed the petitioner as guardian of his father including for the purpose of operating bank accounts. 15.1 Likewise in Writ Petition (L) No.28269 of 2017, Philomena Leo Lobo Vs. After referring to the decision of Madras High Court in the case of Sairabanu Mohammed Rafi Vs. State of Tamil Nadu, Writ Petition No.28435 of 2016 decided on 6/1/2016, this Court appointed the petitioner as guardian of his father including for the purpose of operating bank accounts. 15.1 Likewise in Writ Petition (L) No.28269 of 2017, Philomena Leo Lobo Vs. Union of India decided on 13/10/2017, a Division Bench of this Court allowed the prayer of the petitioner Philomena Leo Lobo for declaring her as guardian of her husband Leo Lobo who was in a comatose condition. 16. In Sikha Arjit Bhattacharya Vs. Union of India, Writ Petition No.11757 of 2018 decided on 27/10/2020, a Division Bench of this Court accepted the prayer of the petitioner Sikha Arjit Bhattacharya and declared her as the guardian of her husband Dr Arjit Bhattacharya who was in a vegetative state. 16.1 Very recently, a Division Bench of this Court in Smt Reshma Salam Kondkari Vs. Union of India, Writ Petition (L) No.11394 of 2021 decided on 17/6/2021, declared the petitioner Reshma Salam Kondkari as the guardian of her husband Abdul Salam Ismail Kondkari who is in a vegetative state, for managing the bank accounts and immovable property of the husband including selling of flat." 15. We also chose to reproduce paragraphs 17.1 to 17.3 of the decision in Salgaonkar below: "17.1 In that case it was held that when a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is a physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of guardian. In the circumstances it was held that statutes like the Guardians and Wards Act, 1890, Mental Healthcare Act, 2017 etc. would not applicable to persons in a comatose condition or in a vegetative state. It was also held that there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state. In the circumstances it was held that statutes like the Guardians and Wards Act, 1890, Mental Healthcare Act, 2017 etc. would not applicable to persons in a comatose condition or in a vegetative state. It was also held that there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state. 17.2 On the crucial issue as to relief that may be granted to the petitioner by invoking writ jurisdiction under Article 226 of the Constitution of India, it was noticed that there is no statutory provision governing the field relating to appointment of guardian of a person lying in a comatose condition or in a vegetative state. This Court referred to and deliberated upon the doctrine of parens patriae whereafter it was held that in a case like this it is the court alone as the parens patriae which must take the ultimate decision though views of the near relatives, next friend and doctors must be given due weightage. After referring to decisions of various High Courts including our High Court, this Court examined the width and plenitude of the power of the High Courts under Article 226 of the Constitution of India and also relied upon the decision of the Supreme Court in Aruna Ramchadra Shanbaug Vs. Union of India, (2011) 4 SCC 454 , and held that when the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. It was held as under: "38. From the above, it is clearly deducible that when the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. To provide justice or discharge ex debito justiciae is the raison d'etre of the courts. The Latin expression ex debito justitiae literally means a debt of justice; on account of justice; a claim the refusal of which would involve an injustice, and therefore, one which justice owes it to the claimant to recognize and allow. The doctrine of ex debito justiciae is well established and requires no further elaboration. In addition to Article 226 of the Constitution, such power of the High Court is traceable to sec. 151 of the Civil Procedure Code, 1908 and sec. The doctrine of ex debito justiciae is well established and requires no further elaboration. In addition to Article 226 of the Constitution, such power of the High Court is traceable to sec. 151 of the Civil Procedure Code, 1908 and sec. 482 of the Code of Criminal Procedure, 1973." 17.3 While acceding to the prayer of the petitioner in that case, this Court also sounded a note of caution that there should be some kind of monitoring of the functioning of the petitioner as guardian to ensure that guardianship was being used for the benefit of the person who was in a vegetative state observing that such monitoring may be carried out through the forum of Maharashtra State Legal Services Authority constituted under the Legal Services Authorities Act, 1987." 16. Sitting singly one of us (GS Patel J) had a similar application though in a suit on the Original Side in Nitin Thakker and Another v State of Maharashtra and Ors.(Interim Application No.677 of 2020 in Suit No 42 of 2021) By an order dtd. 13/8/2020, the Court appointed a Senior Advocate of this Court as the guardian of solicitor who had no family at all but was himself suffering from dementia. In paragraph 20, the decision said: "20. The present case falls only partly within the provisions of Order 32-A(2)(c) [of the Code of Civil Procedure, 1908]. But as this Plaint points out, the state of the law in India simply does not make any sort of provision for a situation such as the present one. Mr. Damania is neither mentally challenged, nor of unsound mind nor a minor. He has no family. He is incapacitated by an illness and the current laws of guardianship do not provide any recourse in as situation like this. This is, therefore, something of a vacuum in law. That, however, does not mean that Courts are helpless or that situations such as these should go unattended and unaddressed. I can draw support from the provisions of Order 32-A of the CPC, Kathawalla J's previous order of 6/3/2017 and also in a properly brought Suit make reference to the omnibus provision for doing substantial justice that we find in Sec. 151 of the CPC. I can draw support from the provisions of Order 32-A of the CPC, Kathawalla J's previous order of 6/3/2017 and also in a properly brought Suit make reference to the omnibus provision for doing substantial justice that we find in Sec. 151 of the CPC. This says that nothing in the CPC limits or otherwise affects the inherent power of the Court to make such orders as may be necessarily for the ends of justice or to prevent the abuse of the process of the Court." 17. This was also considered in Rajni Hariom Sharma. 18. By a previous order dtd. 12/8/2021, Kamar was to be examined by specialist at the JJ Group of Hospitals. That has been done. We have the reports before us today. She was examined on 18/8/2021. She was found to be conscious but minimally co- operative and communicative. She was bed-ridden. Her attention was minimal. She had a forward attention of span of two and a nil backward attention span. She was hard of hearing and could follow only very simple commands, not complex instructions. Her speech was incoherent and reduced in tone and output. Her concepts and judgments were impaired, as was her memory. The conclusion was that she suffers from advanced dementia, needs assistance in her day-to-day activities and will require further investigation and monitoring. The reports states that the Indian Disability Assessment Scale Score was 20, suggestive of profound disability. 19. In these circumstances, we are inclined to grant the relief Mr Khambata seeks, but subject to certain safeguards. To begin with, we make it clear that we are not disposing of this Petition. It is also not our intention that the directions that follow are either rigid or constitute a precedent of any kind. Given the state of the law, which we have briefly set out above, each case will need to be addressed on its own merits. Indeed, we would suggest that in matters like these, no two cases will be exactly alike ever. Each case will require a differently calibrated response from the Court. We also intend to monitor Kamar's condition and will list the matter periodically for updates. The present order may then continued or modified as required. 20. We will appoint the two Petitioners as the guardians and managers presently and until further orders of the person and properties of Kamar Sultana Mohamed, their mother. We also intend to monitor Kamar's condition and will list the matter periodically for updates. The present order may then continued or modified as required. 20. We will appoint the two Petitioners as the guardians and managers presently and until further orders of the person and properties of Kamar Sultana Mohamed, their mother. They are appointed to act jointly and severally. Both may together or individually represent their mother. This will be subject to safeguards set out in this order. 21. The Bank Manager of the Bank of Baroda, Cuffe Parade Branch and the Manger of the HDFC Bank Limited, Kamala Mills Branch will both act on production of an authenticated copy of this order in the terms set out below. Noting that the Petitioners have incomplete information, all other banks, statutory authorities and government bodies are also directed to recognise and acknowledge the Petitioner's rights and authority to represent their mother by virtue of this order and to supply all necessary information when requested. 22. None are to insist on production of a certified copy of this order. 23. The 4th and 5th Respondent banks are directed to furnish an updated list of Kamar's holdings that are with their respective branches to the Petitioners within three weeks from today. 24. So far as income tax returns are concerned, we will need some assistance from Mr Sethna and from Mr Khambata as to how Kamar's returns are to be e-filed and we will pass directions in that regard on 20/12/2021. 25. There is also a request to let out the Heliopolis flat and garage on a leave and license basis. We grant permission but clarify that to the leave and license agreement there will be a need to be attached a letter from Petitioner's brother confirming his acceptance that the flat can be given on leave and license. We would also suggest - though we do not direct - that the leave and license be initially for a period of 11 months rather than a longer period, but may contain a provision for renewal. If and when the flat is given on leave and license the entire income is to placed in one of Kamar's bank accounts and is to be utilized towards meeting her expenses and outgoings. 26. If and when the flat is given on leave and license the entire income is to placed in one of Kamar's bank accounts and is to be utilized towards meeting her expenses and outgoings. 26. If a leave and license agreement is executed, a copy is to be filed in this Court with the Prothonotary and Senior Master. 27. If Kamar requires the flat for herself but it cannot be made available to her because of a subsisting leave and license agreement then the Petitioners undertake to make provision for her care, maintenance and residence. We accept this as an undertaking to the Court. 28. We do not permit the sale or other transfer of the Heliopolis flat without specific orders of this Court. 29. Similarly, if Kamar's assets are insufficient for her upkeep and maintenance then it is for Petitioners and given his consent their brother, to equally and jointly provide for her continued well-being maintenance and expenses for the rest of her life or further orders. 30. We do not specify the entire list of payments that can be made but we clarify that Petitioners are to seek no reimbursement for any expenses they may have incurred and we expressly do not permit any reimbursement to either of the Petitioners. There is a statement of expenses incurred so far for Kamar presented by Mr Khambata. We take this on record and mark it "X" for identification with today's date. Professionals will however be paid for their services against bills raised. 31. We accept the Petitioners' undertaking to maintain accounts and to file half-yearly accounts with the Prothonotary and Senior Master of this Court. 32. For the present, we place the matter on 20/12/2021 high on board for further directions in regard to the income tax filings.