T Sheshadri vs Srinivasa Prakash
2023 Latest Caselaw 4712 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF JULY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A. NO.4815/2021 (MH)

BETWEEN:

T. SHESHADRI,
S/O THAMMAIAH,
AGED ABOUT 56 YEARS,
RESIDING AT NO.25,
OLD NO.17, 11TH CROSS,
PRASHANTH NAGAR,
BANGALORE-560040.                             ... APPELLANT

            (BY SRI MAHESH R. UPPIN, ADVOCATE)

AND:

1.     SRINIVASA PRAKASH,
       S/O LATE SMT. JAYA KRISHNASWAMY
       AND M.R. KRISHNASWAMY IYENGAR,
       HAVING PERMANENT ADDRESS
       AT NO.2358/18, 10TH MAIN E BLOCK,
       2ND STAGE, RAJAJINAGAR,
       BANGALORE-560010.

       PRESENTLY C/O. ASHA JEEVAN,
       NO.57, 7TH CROSS,
       PAVAMANA RESIDENCY,
       KEMBATHALLY ROAD,
       BANNERGHATTA ROAD, GOTTIGERE,
       BANGALORE-560083.

       BY NEXT FRIEND VENUGOPAL V.K,
       S/O V.S. KRISHNAMURTHY,
       AGED ABOUT 41 YEARS,
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      RESIDING AT NO.60. 35TH MAIN,
      2ND STAGE, BTM LAYOUT,
      BANGALORE-560068.

2.    M.R. PARTHASARATHY,
      S/O M.S.RAMASWAMY IYENGAR,
      AGED MAJOR,
      R/O.125, 3RD MAIN ROAD,
      3RD PHASE, J.P. NAGAR,
      BANGALORE-560078.

3.    SMT. SUJAYA PARTHASARTHY,
      W/O M.R. PARTHASARTHY,
      AGED MAJOR,
      R/O.125, 3RD MAIN ROAD,
      3RD PHASE, J.P. NAGAR,
      BANGALORE-560078.

4.    C.A. SRIDHAR,
      S/O LATE ADINARAYANA REDDY,
      AGED ABOUT 60 YEARS,
      R/AT NO.656, 14TH MAIN,
      39TH CROSS, 4TH 'T' BLOCK,
      JAYANAGAR,
      BANGALORE-560041.                  ... RESPONDENTS

     (BY SRI AKSHAYA B. MANJUNATH, ADVOCATE FOR C/R1;
       MRS. SNEHA NAGARAJ & SRI HARIKRISHNA PRAMOD,
                 ADVOCATES FOR R2 AND R3;
                         R4 SERVED)

      THIS M.F.A. IS FILED UNDER SECTION 76 OF MENTAL
HEALTH ACT, AGAINST THE ORDER DATED 15.09.2021 PASSED
ON IA NO.10 IN O.S.NO.202/2017 ON THE FILE OF THE LXI
ADDITIONAL CITY CIVIL SESSIONS JUDGE, BENGALURU CITY,
(CCH-62), ALLOWING IA NO.10 FILED UNDER SECTION 50(1)
(4) OF MENTAL HEALTH ACT, 1987 READ WITH SECTION 151 OF
CPC.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    07.07.2023, THIS DAY  THE   COURT
PRONOUNCED THE FOLLOWING:
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                            JUDGMENT

This appeal is filed challenging the order dated

15.09.2021, passed on I.A.No.10 in O.S.No.202/2017, on the file

of the LXI Additional City Civil Sessions Judge, Bengaluru City

(CCH-62), allowing I.A.No.10 filed under Section 50(1), (4) of

the Mental Health Act, 1987 ('the Act for short) read with

Section 151 of CPC for appointment of psychiatrist who is expert

in the field to ascertain the mental capacity of the plaintiff and to

submit the report.

2. The factual matrix of the case of the plaintiff is that

the suit is filed for the relief of declaration to declare that all the

acts done by defendant Nos.1 and 2 i.e., selling of the property

of unsound mind plaintiff without seeking any permission from

the Court or appointment of guardian as null and void. The

plaintiff also interalia filed I.A.No.10 under Section 50(1) and (4)

of Mental Health Act, 1987 read with Section 151 of CPC praying

the Court to appoint a Senior Psychiatrist or a Psychologist an

expert in the field to assess the mental condition of the plaintiff

and call for report. In support of the application, an affidavit is

sworn to by the next friend that the plaintiff is the son of M.R.

Krishnaswamy Iyengar and Jaya Krishnaswamy and suit

schedule A, B and C properties are the properties of M.R.

Krishnaswamy Iyengar and Jaya Krishnaswmay and both of

them are no more. The plaintiff succeeded to the estate of them

and he is of unsound mind and he is incapable of understanding

things and he is suffering from mental disorder. The alienation

made by the plaintiff in favour of defendant Nos.3 and 4 in

collusion with defendant Nos.1 and 2, cannot be considered as a

valid alienation and reiterated that without the appointment of

guardian to protect the interest of the plaintiff, any alienation

made by defendant Nos.1 and 2 cannot be considered as valid

alienation.

3. The said application was resisted by the defendants

contending that the very suit itself is not maintainable and the

plaintiff has filed an application only with an intention to protract

the proceedings. In order to prove the fact that he is of unsound

mind, no material is placed before the Court. The defendants

filed the written statement contending the very status of the

next friend who has filed the suit and question of cheating the

plaintiff does not arise and there are no bonafide in the

application.

4. The Trial Court having considered the application and

the grounds urged in the application, affidavit and also taking

note of the objections, comes to the conclusion that defendant

Nos.1 to 3 have contended that question of appointing

Psychiatrist does not arise at all because under the provisions,

the application filed by the plaintiff is not maintainable and he is

not suffering from any mental disorder. It is the contention of

the defendants that the plaintiff ought to have filed a suit, but

filed an application under Order 32 Rule 15 of CPC to hold a

preliminary enquiry on the mental capacity of the plaintiff.

Order 32 Rule 15 of CPC clearly establishes that at the time of

institution of the suit, an enquiry has to be held by the Court

regarding mental status of the person and after coming to the

conclusion that he is of unsound mind, then it has to proceed

with the suit authorizing the guardian to proceed with the case.

Hence, he cannot invoke Section 50 of the Act. But the Trial

Court having considered the material on record and also

considering the report of NIMHANS, taken note of the fact that

the average intelligence on the test and IQ, his mental age is of

6 years and 6 months and IQ is 41 and shows his below average

in immediate memory test. He is having functioning

inappropriate or moderately or below average intelligence on the

test given. The Trial Court considered the same and held that

the report is necessary in order to take a decision with regard to

the mental capacity of the plaintiff since he has been

represented through next friend. The Trial Court also comes to

the conclusion having taken note of the specific averment made

in the application and also considering the objections. The Court

will have to hold an enquiry with regard to the mental capacity

of the plaintiff by giving an opportunity to the defendants to

cross-examine the witnesses, who have been examined before

the Court to prove the aspect of mental capacity of the plaintiff

and then finding has to be given by the Court and hence allowed

the application and the same is challenged before this Court in

this appeal.

5. The main contention of the learned counsel for the

appellant is that the Court below failed to take note of the

procedure contemplated under Section 50 of the Act. Section

50(2) of the Act mandates that the Court has to issue notice to

the mentally ill person or direct the petitioner who has filed the

petition to produce the mentally ill person before the Court and

the Court has to personally examine the said person and Court

also shall call for the report from the concerned health authority

so far as the mentally ill person is concerned, before passing any

orders on the application filed under Sections 50, 52, 53, 54, 55,

56 and 57 of the Act. Hence, it is clear that that Trial Court has

not followed the guidance issued by the Hon'ble Court and hence

the order requires to be set aside. The learned counsel would

contend that the Judge has not followed the well settled law laid

down under Order 32 Rule 15 of CPC and enquiry ought to have

been conducted and enquiry should consist not only of

examination of the witnesses produced by either party, but also

of the examination of the alleged lunatic by the Judge, either in

open Court or chambers, and as Courts are generally presided

over by laymen, as a matter of precaution, the evidence of

medical expert should be taken under Section 45 of the Evidence

Act. The Trial Court ought to have issued notice to the mentally

ill person and complied with the provisions. Whether the original

plaintiff is unsound mind person or not ought to have been

decided and there is a clear violation of the guidelines of

Supreme Court and without following the procedure, the same is

considered and passed the order.

6. The learned counsel for the appellant relied upon the

judgment of Madhya Pradesh High Court in the case of MOHD.

YUNUS MUNSHI v. PUBLIC IN GENERAL reported in ILR

(2017) M.P. 2434 and brought to the notice of this Court

paragraph No.5 with regard to compliance of Section 51 of the

Act i.e., the District Court is required to record its findings on

two issues, namely (i) whether the alleged mentally ill person is

in fact mentally ill or not? (ii) if such person is mentally ill, then

whether he is incapable of taking care of himself or managing his

property?

7. The learned counsel also brought to the notice of this

Court the judgment of Jammu and Kashmir High Court in the

case of MURTAZA NASIR v. NAZIR AHMED WANI AND

OTHERS reported in AIR 2006 JAMMU AND KASHMIR 55,

wherein in paragraph No.5 discussed with regard to it is

appropriate to observe that the procedure adopted by learned

District Judge while conducting the inquisition proceedings under

reference does not appear to be wholly in accordance with the

procedure laid down under the Mental Health Act and the

compliance of Section 51 by issuing notice and no such

procedure is followed and hence it requires interference.

8. The learned counsel for the appellant would

vehemently contend that an order is passed under the old Act

i.e., Mental Health Act, 1987 and new enactment is also brought

into force i.e., Mental Healthcare Act, 2017 and the plaintiff

ought to have sought the relief under the new Act. The new Act

also prescribes the procedure for getting the report and

constitution of Mental Health Authority and powers vested with

the new Act and constitution of Mental Health Review Board and

the relief ought to have sought under the new enactment.

9. Per contra, the learned counsel for respondent No.1

would contend that an application was filed in 2017 March and

new Act repealing the old Act came into effect subsequently.

When the application was filed, old Act was in force and hence

the first contention of the learned counsel for the appellant that

ought to have sought the relief under the new Act cannot be

accepted. The learned counsel would contend that earlier writ

petition was filed and direction was given to consider the I.A.

and accordingly order has been passed and committee by

NIMHANS also given the report wherein IQ of the plaintiff is

recorded. Subsequently, an application is filed to appoint a

Psychiatrist, who is having expertise in considering the condition

of the plaintiff and the same is also considered by the Trial Court

and the Trial Court not taken any decision with regard to

whether he is mentally ill or not or whether he is capable to take

a decision on his own and in order to come to such a conclusion,

an application is filed to get the report and the Trial Court not

committed any error. The Trial Court rightly comes to the

conclusion that it requires report and after getting the report, an

opportunity will be given to the parties and the very contention

that an enquiry is conducted under Order 32 Rule 15 of CPC

stating that he was of unsound mind, at this juncture cannot be

accepted.

10. Having heard the learned counsel for the appellant

and the learned counsel for respondent No.1 and also

considering the grounds urged in the appeal and also the

principles laid down in the judgments referred supra by the

learned counsel for the appellant, the points that arise for the

consideration of this Court are:

(i) Whether the Trial Court has committed an error in allowing the application filed by respondent No.1/plaintiff and whether it requires interference of this Court?

(ii) What order?

Point No.(i):

11. Admittedly, an application is filed before the Trial

Court under Section 50 of the Act and the provision also says

application for judicial inquisition. The pleadings are also clear

that the properties are standing in the name of the plaintiff and

the suit is filed through next friend. The allegation made in the

plaint is that the property belonging to the plaintiff was sold in

favour of defendant Nos.3 and 4 by defendant Nos.1 and 2. It is

very clear under Section 50 of the Act that judicial inquisition is

required to be made by the District Court within the local limits

of whose jurisdiction the alleged mentally ill person resides.

Section 50(2) of the Act is clear that on receipt of an application

under sub-section (1), the District Court shall, by personal

service or by such other mode of service as it may deem fit,

serve a notice on the alleged mentally ill person to attend at

such place and at such time as may be specified in the notice or

shall in like manner, serve a notice on the person having the

custody of the alleged mentally ill person to produce such person

at the said place and at the said time, or being examined by the

District Court or by any other person from whom the District

Court may call for a report concerning the mentally ill person.

12. In the case on hand, admittedly the report is called

from the concerned from the NIMHANS and the same is not in

dispute. The report also discloses that his behaviour is like a

person of 6 to 10 years old and mental IQ is only 41 and the

same is also discussed by the Trial Court while passing the

order. In paragraph No.18, an observation is made that next

friend of the plaintiff produced the photographs of the plaintiff

and psychologist assessment to the Court of Ms.Jayanthi M,

Psychologist and Hypo Therapist, which goes to show that the

plaintiff is suffering from some mental disorder and also report is

moderately below average in intelligence. His basal age is 3

years and terminal age is 12 years. Hence, the Court comes to

the conclusion that it is just and proper to appoint the applicant

as the next friend of the plaintiff to institute the suit and I.A. was

allowed permitting the next friend to contest the matter on

behalf of the plaintiff. The Trial Court also taken note of Order

32 Rule 15 of CPC that even during the pendency of the suit, the

Court can adjudge the mental capacity of the plaintiff and also

with regard to the unsoundness of mind. It is not in dispute that

the defendants have denied that he is not mentally

incapacitated. Hence, the very assessment is required and

already mental capacity of the plaintiff is assessed through a

psychologist as mentioned in paragraph No.18 of the Trial Court

order and now the plaintiff is seeking for appointment of expert

i.e., for appointing Senior Psychiatrist or a Psychologist and the

same is also to assess the mental condition of the plaintiff and

call for report. When such being the case, it is nothing but

compliance of Section 50 of the Act. The learned counsel for

the appellant would contend that the provisions of the Mental

Health Act is not complied and the said contention cannot be

accepted and an opportunity will be given to the defendants

when the report is received to cross-examine the witnesses, who

are going to be examined before the Court and the same is

observed in the order of the Trial Court in paragraph No.19.

13. The learned counsel for the appellant relied upon the

judgment of the Madhya Pradesh High Court, wherein also

discussed with regard to Sections 50 and 51 of the Mental Health

Act i.e., procedure to be followed in appointment and brought to

the notice of this Court paragraph No.5 of the said judgment. I

have already pointed out that there is a preliminary opinion of

the doctor and now sought for an expert opinion and hence it

cannot be contended that an order has been passed violating

Sections 50 and 52 to 54 of the Act. The Jammu and Kashmir

High Court also discussed with regard to the inquisition

proceeding under reference. The Court is also getting the

report with regard to condition of the plaintiff and already based

on the opinion given by the earlier psychologist, next friend was

permitted to prosecute the matter on behalf of the plaintiff. The

specific allegation is with regard to disposing of the property

belonging to mental ill person and when such an issue is

involved and also order of the Trial Court discloses that

photographs of the mentally ill person was also produced and

earlier report was taken note of with regard to his behaviour is

that of 6 to 10 years old and IQ is 41 and when the report is

called, it cannot be contended that there is no compliance of

Mental Health Act. Hence, I do not find any merit in the appeal

since report is sought for to assess the mental capacity of the

plaintiff. Hence, I do not find any ground to set aside the order

of the Trial Court.

14. The other contention of the learned counsel for the

appellant is that the plaintiff ought to have filed an application

under the new Act i.e., Mental Healthcare Act, 2017.

Admittedly, before repealing of old Act only, an application was

filed and when such being the case, the very contention of the

learned counsel for the appellant that relief ought to have been

sought under the 2017 Act cannot be accepted. The 2017 Act is

only prospective effect and not retrospective effect. As on the

date of filing of the application, old Act was not repealed and

hence I do not find any force in the contention of the learned

counsel for the appellant. Hence, I answer point No.(i) in the

negative since no prejudice will be caused to the appellant if

report is obtained from Senior Psychologist and Psychiatrist and

the same will be helpful to the Court to adjudicate the mental

illness of the plaintiff.

Point No.(ii):

15. In view of the discussions made above, I pass the following:

ORDER

The appeal is dismissed.

The Trial Court is directed to dispose of the matter within a

period of one year from today.

Sd/-

JUDGE MD