Madras High Court
C. Raghuraman vs Unknown on 27 January, 2022
O.P.No.731 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :27.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
O.P.No.731 of 2021
C. Raghuraman ..... Petitioner
Prayer: Petition filed for appointment of a guardian under Clause XVII
of the Letters Patent of 1865 to appoint Mr.C. Raghuraman, Son of Late
K.Chellappan, the petitioner herein, as the guardian of the person and
manager of the properties of the mentally retarded person Mr.R. Balaji,
and for operation and sale of his assets and liabilities, more fully set out
in Schedules “A”, “B”, & “C” hereunder :
For Petitioner : Mr. Sharath Chandran
ORDER
The Registry earlier had raised a maintainability issue with
regard to the maintainability of the present petition which has been filed
seeking to appoint the petitioner as a legal guardian for a mentally
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retarded person. The maintainability issue was raised by the Registry by
relying upon a judgment of this Court in the case of G. Nithyanandam
vs. Tmt. D. Saritha and others reported in 2013 3 LW 412, wherein, an
application filed for appointment of a legal guardian for a mentally
retarded person was heard. In the said decision, the learned Single Judge
had directed the petitioner to approach the District Collector under
Section 14 of the National Trust for Welfare of persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999.
Earlier there was the Mental Health Act, 1987 and under the said Act,
Section 53 enabled a person to get himself appointed as guardian for a
mentally ill person by approaching the concerned District Court.
However, the Mental Health Act, 1987 got repealed in the year 2017 and
it was replaced by a new enactment by name “The Mental Health care
Act, 2017” which came into effect from 07.07.2018.
2. In the decision of the learned Single Judge reported in 2013
3 LW 412 referred to supra, the petition was filed under Sections 3,7 to
10 and 29 of the Guardians and Wards Act, 1890. Since the Guardian
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and Wards Act, 1890 does not deal with mentally retarded persons or
lunatics, the learned Single Judge held the petition filed by
G.Nithyanandam in the decision referred to supra (G. Nithyanandam's
case) as not maintainable and directed the said petitioner to approach the
concerned statutory authority under Section 14 of the National Trust for
Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999.
3. Ever since the passing of the aforesaid decision by a learned
Single Judge of this Court, the Registry of this Court was not entertaining
any petitions filed seeking for appointment of legal guardianship for a
mentally retarded person or a lunatic.
4. The learned counsel for the petitioner would submit that
under Clause 17 of the Letters Patent, this Court has got powers to
entertain petitions of this nature, eventhough “The Mental Health Act,
1987” has been repealed or the replaced enactment viz., The Mental
Healthcare Act, 2017 did not provide for a specific provision enabling this
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Court to exercise powers for appointment of a legal guardian for a
mentally retarded or a lunatic person.
5. The learned counsel for the petitioner drew the attention of
this Court to the following in support of his submission that under Clause
17 of the Letters Patent, this Court is having the power to exercise
jurisdiction for appointment of a legal guardian for a mentally retarded or
a lunatic person.
a. Clause 17 of the Letters Patent
b. Definition of an “idiot” as found in Black's Law
Dictionary.
He would submit that “idiot” referred to in Clause 17 of the
Letters Patent as seen from its definition means a person who is afflicted
with profound mental retardation as in the case on hand where the
petitioner is suffering from 60% mental retardation.
c. The National Trust for Welfare of persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities Act,
1999.
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Referring to the aforesaid legislation, he would point out that
nowhere in the said legislation, it has curtailed the powers of this Court to
appoint a legal guardian for a mentally retarded person. The power of
this Court under Clause 17 of the Letters Patent have also not been
curtailed. Therefore, he would submit that a litigant has the option of
either going before the authority prescribed under Section 14 of the
National Trust for Welfare of persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999 or approach this
Court under Clause 17 of the Letters Patent.
The judgment rendered by a learned Single Bench of this
Court dated 16.04.2013 in O.P. No.62 of 2013 in the case of
G.Nithyanandam vs. Tmt. D. Saritha and others reported in 2013 3
LW 412 is the judgment based on which the Registry had earlier
returned this original petition as not maintainable. He would submit that
the said judgment was dealing with a petition filed under the Guardians
and Wards Act. According to him, the learned Single Judge has rightly
held the petition as not maintainable as appointment of a legal guardian
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sought for is in respect of a mentally retarded person, which cannot be
sought for under the Guardians and Wards Act.
He would submit that the powers under Clause 17 of the
Letters Patent empowering this Court to exercise jurisdiction of this
nature was not the issue involved in the aforesaid reported decision
reported in 2013 2 LW 412. According to him only on the ground that
the petition was filed under the Guardians and Wards Act, it was held to
be not maintainable and the learned Single Judge had directed the
petitioner to approach the authority under the National Trust for Welfare
of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999.
d. P.S. Sathappan (Dead) By Lrs v. Andhra Bank Ltd. and
others reported in 2004 11 SCC 672.
He would submit that in the aforesaid decision of the Hon'ble
Supreme Court, the Hon'ble Supreme Court has clearly held that unless
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and until the enactment specifically excludes the applicability of Letters
Patent, the powers under the Letters Patent are not curtailed. Therefore
applying the same principle, the learned counsel for the petitioner would
submit that the instant petition filed by the petitioner under Clause 17 of
the Letters Patent is maintainable as under the National Trust for Welfare
of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999, there is no prohibition for the applicability of
Clause 17 of the Letters Patent or any other statutory bar.
e. The Decision of Calcutta High Court in the case of Kala
Chand Chunder, v Fatehdin and Ors. reported in AIR 1949 CAL 166.
By relying upon the aforesaid decision, the learned counsel for the
petitioner would submit that in the said decision also, the High Court of
Calcutta has held that the High Court has got lunacy jurisdiction under
Clause 17 of the Letters Patent 1865. Therefore, he would submit that
Clause 17 of the Letters Patent enables the petitioner to approach this
Court seeking for appointment of a legal guardian for a mentally retarded
person.
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f. A single Bench decision of the Calcutta High Court in the
case of Deepa Asani and another reported in 2021 SCC Online 2148.
He would submit that the Calcutta High Court has exercised
Clause 17 of the Letters Patent and appointed a Legal Guardian for a
mentally ill person.
g. A single Bench decision of this Court in the case of
S.Annapoorni vs. K.Vijiay reported in 2019 SCC Online MAD 723.
Relying upon the said decision, the learned counsel for the
petitioner would submit that the learned Single Judge has exercised
Clause 17 of Letters Patent for appointment of a legal guardian for a
Minor who is residing outside the jurisdiction of this Court but within the
State of Tamil Nadu.
The learned counsel for the petitioner would therefore submit
that Clause 17 of the Letters Patent can be exercised by this Court for
the appointment of a legal guardian for a mentally retarded person. After
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referring to the aforementioned authorities, the learned counsel for the
petitioner would submit that subsequent to the repealing of the Mental
Health Act, 1987 which contained a provision under Section 53 enabling
the person to get himself appointed as a Legal guardian for a mentally ill
person but under the replaced enactment viz., the Mental Healthcare Act,
2017, there is no such provision and therefore, according to him there is a
vacuum as of now as there is no specific legislation with regard to the
appointment of legal guardian for a mentally retarded person or a
lunatic. Therefore, he would submit “Parens Patriae” jurisdiction will
have to be exercised by this Court to fill up the lacuna.
Discussion :
6. Clause 17 of the Letters Patent reads as follows :-
17. Jurisdiction as to infants and lunatics : And We do further
ordain that the said High Court of Judicature at Madras shall have the
like power and authority with respect to the persons and estates of
infants, idiots and lunatics within the Presidency of Madras, as that
which is now vested in the said High Court immediately before the
publication of these presents.
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7. As seen from Clause 17 of the Letters Patent, this Court is
having the power to exercise jurisdiction with respect to the persons and
estates of infants, idiots and lunatics.
8. “Idiot” is defined in Black's Law Dictionary as follows :-
Idiot. A person afflicted with profound mental
retardation. This term has largely fallen out of use in modern
legal and medical contexts.
9. The Hon'ble Supreme Court in the case of P.S. Sathappan
(Dead) By Lrs v. Andhra Bank Ltd. and others reported in 2004 11
SCC 672. in paragraphs 30 to 33 held that unless and until a legislation
specifically excludes the applicability of the Letters Patent, the Letters
Patent is applicable.
10. Paragraphs 30 to 33 of the aforementioned judgment of the
Hon'ble Supreme Court which discusses this issue are reproduced
hereunder :-
30.As such if an appeal is expressly saved by Section 104(1), sub-section
(2) cannot apply to such an appeal. Section 104 has to be read as a whole.
Merely reading sub-section (2) by ignoring the saving clause in sub-section
(1) would lead to a conflict between the two sub-sections. Read as a whole
and on well-established principles of interpretation it is clear that sub-
section (2) can only apply to appeals not saved by sub-section (1) of
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Section 104. The finality provided by sub-section (2) only attaches to
orders passed in appeal under Section 104 i.e. those orders against which
an appeal under “any other law for the time being in force” is not
permitted. Section 104(2) would not thus bar a letters patent appeal.
Effect must also be given to legislative intent of introducing Section 4 CPC
and the words “by any law for the time being in force” in Section 104(1).
This was done to give effect to the Calcutta, Madras and Bombay views
that Section 104 did not bar a Letters Patent. As appeals under “any other
law for the time being in force” undeniably include a letters patent appeal,
such appeals are now specifically saved. Section 104 must be read as a
whole and harmoniously. If the intention was to exclude what is
specifically saved in sub-section (1), then there had to be a specific
exclusion. A general exclusion of this nature would not be sufficient. We
are not saying that a general exclusion would never oust a letters patent
appeal. However, when Section 104(1) specifically saves a letters patent
appeal then the only way such an appeal could be excluded is by express
mention in Section 104(2) that a letters patent appeal is also prohibited. It
is for this reason that Section 4 of the Civil Procedure Code provides as
follows:
“4. Savings.—(1) In the absence of any specific provision to the contrary,
nothing in this Code shall be deemed to limit or otherwise affect any
special or local law now in force or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by or under any
other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition
contained in sub-section (1), nothing in this Code shall be deemed to limit
or otherwise affect any remedy which a landholder or landlord may have
under any law for the time being in force for the recovery of rent of
agricultural land from the produce of such land.”
As stated hereinabove, a specific exclusion may be clear from the words
of a statute even though no specific reference is made to Letters Patent.
But where there is an express saving in the statute/section itself, then
general words to the effect that “an appeal would not lie” or “order will be
final” are not sufficient. In such cases i.e. where there is an express saving,
there must be an express exclusion. Sub-section (2) of Section 104 does
not provide for any express exclusion. In this context reference may be
made to Section 100-A. The present Section 100-A was amended in 2002.
The earlier Section 100-A, introduced in 1976, reads as follows:
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“100-A. No further appeal in certain cases.—Notwithstanding anything
contained in any Letters Patent for any High Court or in any other
instrument having the force of law or in any other law for the time being
in force, where any appeal from an appellate decree or order is heard and
decided by a Single Judge of a High Court, no further appeal shall lie
from the judgment, decision or order of such Single Judge in such appeal
or from any decree passed in such appeal.”
It is thus to be seen that when the legislature wanted to exclude a letters
patent appeal it specifically did so. The words used in Section 100-A are
not by way of abundant caution. By the Amendment Acts of 1976 and
2002 a specific exclusion is provided as the legislature knew that in the
absence of such words a letters patent appeal would not be barred. The
legislature was aware that it had incorporated the saving clause in Section
104(1) and incorporated Section 4 CPC. Thus now a specific exclusion
was provided. After 2002, Section 100-A reads as follows:
“100-A. No further appeal in certain cases.—Notwithstanding anything
contained in any Letters Patent for any High Court or in any instrument
having the force of law or in any other law for the time being in force,
where any appeal from an original or appellate decree or order is heard
and decided by a Single Judge of a High Court, no further appeal shall lie
from the judgment and decree of such Single Judge.”
To be noted that here again the legislature has provided for a specific
exclusion. It must be stated that now by virtue of Section 100-A no letters
patent appeal would be maintainable. However, it is an admitted position
that the law which would prevail would be the law at the relevant time. At
the relevant time neither Section 100-A nor Section 104(2) barred a letters
patent appeal.
31. Applying the above principle to the facts of this case, the appeal under
clause 15 of the Letters Patent is an appeal provided by a law for the time
being in force. Therefore, the finality contemplated by sub-section (2) of
Section 104 did not attach to an appeal passed under such law.
32.It was next submitted that clause 44 of the Letters Patent showed that
Letters Patent were subject to amendment and alteration. It was submitted
that this showed that a Letters Patent was a subordinate or subservient
piece of law. Undoubtedly, clause 44 permits amendment or alteration of
Letters Patent, but then which legislation is not subject to amendment or
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alteration? CPC is also subject to amendments and alterations. In fact it
has been amended on a number of occasions. The only unalterable
provisions are the basic structure of our Constitution. Merely because
there is a provision for amendment does not mean that, in the absence of
an amendment or a contrary provision, the Letters Patent is to be ignored.
To submit that a Letters Patent is a subordinate piece of legislation is to
not understand the true nature of a Letters Patent. As has been held
in Vinita Khanolkar case [(1998) 1 SCC 500] and Sharda Devi
case [(2002) 3 SCC 705] a Letters Patent is the charter of the High Court.
As held in Shah Babulal Khimji case [(1981) 4 SCC 8] a Letters Patent is
the specific law under which a High Court derives its powers. It is not any
subordinate piece of legislation. As set out in the aforementioned two
cases a Letters Patent cannot be excluded by implication. Further it is
settled law that between a special law and a general law the special law will
always prevail. A Letters Patent is a special law for the High Court
concerned. The Civil Procedure Code is a general law applicable to all
courts. It is well-settled law, that in the event of a conflict between a
special law and a general law, the special law must always prevail. We see
no conflict between the Letters Patent and Section 104 but if there was
any conflict between a Letters Patent and the Civil Procedure Code then
the provisions of the Letters Patent would always prevail unless there was
a specific exclusion. This is also clear from Section 4 of the Civil
Procedure Code which provides that nothing in the Code shall limit or
affect any special law. As set out in Section 4 CPC only a specific
provision to the contrary can exclude the special law. The specific
provision would be a provision like Section 100-A.
33. It was also sought to be argued that if such be the interpretation of
Section 104 CPC, it may create an anomalous situation and may result in
discrimination inasmuch as an appeal under the Letters Patent will be
available against an order passed by the High Court on its original side,
whereas such an appeal will not be available in a case where the order is
passed by the High Court in its appellate jurisdiction. A similar argument
was urged before this Court in South Asia Industries (P) Ltd. [AIR 1965
SC 1442 : (1965) 2 SCR 756] but the same was repelled in the following
words : (SCR p. 762 C-G)
“The argument that a combined reading of clauses 10 and 11 of the
Letters Patent leads to the conclusion that even the first part of clause 10
deals only with appeals from courts subordinate to the High Court has no
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force. As we have pointed out earlier, clause 11 contemplates conferment
of appellate jurisdiction on the High Court by an appropriate legislature
against orders of a tribunal. Far from detracting from the generality of the
words ‘judgment by one Judge of the said High Court’, clause 11
indicates that the said judgment takes in one passed by a Single Judge in
an appeal against the order of a tribunal. It is said, with some force, that if
this construction be accepted, there will be an anomaly, namely, that in a
case where a Single Judge of the High Court passed a judgment in
exercise of his appellate jurisdiction in respect of a decree made by a court
subordinate to the High Court, a further appeal to that Court will not lie
unless the said Judge declares that the case is a fit one for appeal, whereas,
if in exercise of his second appellate jurisdiction, he passed a judgment in
an appeal against the order of a tribunal, no such declaration is necessary
for taking the matter on further appeal to the said High Court. If the
express intention of the legislature is clear, it is not permissible to speculate
on the possible reasons that actuated the legislature to make a distinction
between the two classes of cases. It may be, for ought we know, the
legislature thought fit to impose a limitation in a case where 3 courts gave
a decision, whereas it did not think fit to impose a limitation in a case
where only one court gave a decision.”
11. Under the Mental Health Act, 1987 which has been
repealed there was a specific provision under Section 53 of the said Act
empowering the District Court to appoint a legal guardian for a mentally
ill person.
12. Section 53 of the repealed Mental Health Act 1987 reads as
follows :-
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53. Appointment of guardian of mentally ill person (1)
Where the mentally ill person is incapable of taking care of himself, the
District Court or, where a direction has been issued under sub-section (2)
of section 54, the Collector of the District, may appoint any suitable
person to be his guardian.
(2) In the discharge of his functions under sub-section (1), the
Collector shall be subject to the supervision and control of the State
Government or of any authority appointed by it in that behalf.
13. The Mental Health Act, 1987 was repealed and was
replaced by the Mental Healthcare Act, 2017 which came into effect from
07.07.2018. As seen from the Mental Healthcare Act, 2017, there is no
provision available for appointment of a guardian of a mentally ill person,
which was very much available under the repealed Mental Heealth Act,
1987. Though the National Trust for Welfare of persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
under Section 14 empowers the Local Level Committee to appoint a legal
guardian for a mentally retarded person, the said legislation has not
curtailed the powers of this Court to appoint a legal guardian for a
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mentally retarded person exercising its powers under Clause 17 of the
Letters Patent. The decision rendered by a learned Single Judge of this
Court in G. Nithyanandam vs. Tmt. D. Saritha and others reported in
2013 3 LW 412, which is the basis for the return of the Original petition
by the Registry of this Court is in the context of a petition filed under
the Guardians and Wards Act and not under Clause 17 of the Letters
Patent. The only reason for holding that the said petition was not
maintainable by the learned Single Judge in the reported decision of
G.Nithyanandam's case referred to supra was that under the Guardians
and Wards Act, a person cannot be appointed as a legal guardian for a
mentally retarded person. Therefore, I am of the considered view that
the reason for return of the Original Petition filed by this petitioner under
Clause 17 of the Letters Patent seeking for appointment of a legal
Guardian for a mentally retarded person by the Registry is erroneous.
14. In similar circumstances, a learned Single Judge of the
Calcutta High Court in the case of Kala Chand Chunder, v Fatehdin
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and Ors. reported in AIR 1949 CAL 166 and in the case of Deepa Asani
and another reported in 2021 SCC Online 2148 exercised powers under
Clause 17 of the Letters Patent and appointed a legal guardian for a
mentally ill/lunatic person.
15. The relevant paragraphs of the aforesaid decisions of the
Calcutta High Court are extracted hereunder :
a) Kala Chand Chunder, v Fatehdin and Ors. reported in AIR 1949 CAL 166
14.Even if there be any doubt as to the powers of the District
Courts in the matter of making interim orders in pending lunacy
proceedings, I entertain no doubt whatever as to the powers of this High
Court to do so. This High Court has lunacy jurisdiction under clause 17 of
the Letters Patent of 1865. That clause confers on this Court the like power
and authority with respect to the persons and estates of infants, idiots and
lunatics within the Bengal Division of the Presidency of Fort William as
that which was vested in the said High Court immediately before the
publication of these presents. This takes us back to the Letters Patent of
1862 which was in force immediately before the publication of the Letters
Patent of 1865. Clause 16 of the Letters Patent of 1862 ordained that the
High Court should have the like jurisdiction as to infants and lunatics as
was then vested in the Supreme Court. This provision takes us further back
to the Charter of 1774 establishing the Supreme Court at Fort William in
Bengal. Under clause 4 the Chief Justice and Judges of the Supreme Court
were given the same powers as the Judges of King's Bench of England had
and under clause 18 the Supreme Court was constituted as a Court of
Equity with “full power and authority to administer justice in a summary
manner, as nearly as may, according to the rules and proceedings of our
High Court of Chancery in Great Britain.” Clause 25 of that Charter
authorised and empowered the Supreme Court “to appoint guardians and
keepers for infants, and their estates according to the order and course
observed in that part of Great Britain called England and also guardians
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and keepers of the persons and estates of natural fools or of such as are, or
shall be deprived of their understanding or reason by the act of God, so as
to be unable to govern themselves and their estates” and also authorised
and empowered that Court “to inquire, hear and determine by inspection of
the person, or by such other ways and means by which the truth may best
be discovered and known.” From what I have stated it follows that this
High Court as the successor to the Supreme Court has all, the powers,
authority and jurisdiction of the English Courts referred to above. There
can be no doubt that the English Courts frequently make interim orders in
lunacy proceedings before a person is actually found to be a lunatic on
inquisition. Reference may be made to Ex parte Whitfield [[1742] 2 A.T.K.
315 : 26 E.R. 592.] , In re: Pountain [[1888] L.R. 37 Ch. D. 609 C.A.]
, Seager Hunt [[1900] L.R. 2 Ch. 54.] and Re: A.G. [[1909] 53 Sel. J.
615.] . The position is summarised in Theobald's Law relating to Lunacy at
page 401 in the following words:
“In an urgent case an interim receiver may be appointed for the protection
of a lunatic's property, upon sufficient medical evidence, and without
service or security. The order provides for giving security as soon as
possible and for notice of the order to the lunatic with liberty to him to
apply to discharge it on short notice.
It is not necessary to refer to Rule 83 of the Rules of 1892 for power to
appoint an interim receiver; it is part of the inherent jurisdiction to protect
the property of lunatics. The powers conferred by the Act of 1908 are also
sufficient to meet the case. Interim orders have frequently been made; see,
for instance, Seager Hunt [[1900] L.R. 2 Ch. 54.] .
These interim orders have also been recognised by the Lords Justices. It
was found that an elderly lady of weak mind was living in her own house in
a state of neglect, and it was necessary, at once to have her properly cared
for. The matter being urgent, an interim receiver was appointed by the
Master. W., January 17, 1922.
When the receiver went to the house to carry out the order he was refused
admission by a person who had been allowed to occupy the basement.
Application was thereupon made to the Lords Justices for an order to
commit this person, and after discussion in Court an order for committal
was made, thus recognising in the clearest way the validity of the interim
order. W., Sterndale, M.R., Younger, L.J., 1st February, 1922.”
15. It has been argued that the provisions of the Letters Patent are by
clause 44 thereof made subject to the legislative powers of the Indian
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Legislature. It is contended that the Indian Legislature has, by the Lunacy
Act, altered the law. Reference is made to sec. 2 of the Lunacy Act which
provides that nothing contained in Part II will affect the powers of the High
Court. It is urged that this section clearly shows that the other provisions
contained in other parts of the Act affect the powers of the High Court.
Part II provides for the reception, care and treatment of lunatics and gives
certain powers to certain persons or tribunal. It was, therefore, necessary to
make it clear that those provisions did not affect the powers of the High
Court over any person found on inquisition to be a lunatic or over the
property of such lunatic. Part III, Ch. IV, however, deals with lunacy
proceedings in the High Court. In so far as express provisions have been
made in that part they are certainly intended to be binding on the High
Court and ex hypothesi there could be no occasion for preserving, the
powers of the High Court as against those provisions. But it is quite a
different thing to say that even in matters on which the Act is silent the
powers of the High Court must be deemed to have been taken away. I
readily agree that the provisions of the Lunacy Act, in so far as they are
expressly contrary to or inconsistent with the powers of the High Court
under its Letters Patent, must prevail but I am not prepared to countenance
the contention that the Legislature has, by a side wind, taken away the
inherent powers of this Court, which, I consider, are essentially necessary
in the ends of justice. While sitting as a Judge of this Court I for one shall
not, in the absence of unambiguous provision enacted by a competent
legislative authority, readily give up ancient and time-honoured powers,
authority and jurisdiction which this Court has inherited from the Supreme
Court. In my opinion, for the reasons mentioned above, the order of
September 3, 1945, was a valid order and Mr. B.P. Chunder as the receiver
and manager of the estate of Kala Chand Chunder can legally convey the
latter's half share and pass a good title to the purchaser. I, however, agree
with Mr. Mukherjee that the records of this suit should be suitably
amended either by substituting Mr. B.P. Chunder as such receiver and
manager in the place of Kala Chand Chunder or by describing Kala Chand
Chunder as a person who, though not adjudged to be a lunatic, is by reason
of unsoundness of mind or mental infirmity incapable of protecting his
interests and suing by a next friend appointed under Or. 32, r. 15, C.P.C.
Even for the purposes of this application such amendment is necessary. Mr.
Banerjee agrees that the register of this suit should be amended in the latter
way. Relying on the materials on which the order of April 25, 1945, was
made and the materials on which an order under Or. 32, r. 15 was made by
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me in another proceeding on September 3, 1945, which related to the
mental state of Kala Chand Chunder and all of which are now filed of
record of this Court I find that the Plaintiff Kala Chand Chunder is by
reason of unsoundness of mind or mental infirmity incapable of protecting
his interests and acting under Or. 32, r. 15, C.P.C. I appoint Mr. B.P.
Chunder as the next friend of Kala Chand Chunder to continue this suit to
its termination and execute and register the conveyance on behalf of Kala
Chand Chunder. Let the register of this suit be amended accordingly and
let the sale be now completed.
b) Deepa Asani and another reported in 2021 SCC Online 2148.
6. The 2017 Act provides for the rights of persons who are being treated in
mental healthcare establishments and guidelines for the functioning of these
establishments. Clause 17 of the Letters Patent for the High Court of
Judicature at Fort William in Bengal, appears to be the only answer in such
cases where High the Court has the authority to intervene in cases in
relation to persons and estates of infants, idiots and lunatics within the
jurisdiction vested with the High Court. (Clause 17 is set out below:)
“Clause 17: Jurisdiction as to infants and lunatics-And we do further
ordain, that the said High Court of Judicature at Fort William in Bengal
shall have the like power and authority with respect to the persons and
estates of infants, idiots, and lunatics within the Bengal Division of the
Presidency of Fort William as that which was vested in the said High
Court immediately before the publication of these presents.”
7.Since the petitioner is the only legal heir of Deepa Asani, this Court
considers it fit to pass appropriate orders upon being satisfied, prima facie,
from the material on record that Deepa Asani is indeed in a critical mental
condition and requires sufficient protection from the applicant who is her
sole surviving legal heir.
8. It is relevant to trace the use of the word ‘Inquisition’ to The Mental Health
Act, 1987, under which an application for judicial inquisition could be made by
a class of persons for ascertaining the mental condition of a mentally ill, who
holds property, for a direction for admission of that person in a psychiatric
hospital. Clause 17 of The Letters Patent evokes the power of the High Court as
a guardian-protector to preserve the rights of those who are disenfranchised - by
way of mental incapacity - to approach the courts. Barring the words which are
seen as inappropriate in the present times, it is a wonderfully inclusive provision
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which empowers the High Court to take up the cause of persons on the
periphery of society.
16. Infact, the decision rendered supra in Deepa Asani's case
reported in 2021 SCC Online 2148, the learned Judge of the Calcutta
High Court has observed that there is a vaccum eversince the repeal of
the Mental Health Act, 1987 as there is no provision under the Mental
Healthcare Act, 2017 for appointment of a legal guardian for a mentally
retarded person. Whenever there is a Legislative vacuum and there is
utmost necessity as in the instant case, the Court will have to fill up the
lacuna by giving appropriate legal relief though within the parameters of
law. Since Clause 17 of Letters Patent empowers this Court to exercise
lunacy jurisdiction, the hands of this Court are not tied to grant the relief
as prayed for in this petition. In a case of this nature, this Court cannot
be a mute spectator when there is no specific prohibition for the exercise
of power under Clause 17 of the Letters Patent. “Parens Patriae”
jurisdiction also empowers this Court to appoint a Legal guardian for a
Mentally retarded person when there is a legislative lacuna and further
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there being no statutory bar.
17. The learned Single Judge of the Calcutta High Court in the
aforesaid reported decisions have also exercised the power under Clause
17 of the Letters Patent for the purpose of appointment of a legal
guardian for a lunatic.
18. Since idiot is a colloquial term for a person affected with
mental retardation, the term “idiot” found in Clause 17 of the Letters
Patent is applicable to a mentally retarded person also as in the instant
case. In future, Registry shall entertain petitions filed seeking to appoint
legal guardian for a mentally retarded person under Clause 17 of the
Letters Patent. Infact, a learned Single Judge of this Court in
S.Annapoorni's case referred to supra had also exercised powers under
Clause 17 of the Letters Patent though it was a case where the petitioner
was residing outside the jurisdiction of this Court but that case was in
respect of a child custody matter. Though it was a child custody matter,
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the logic behind the applicability of Clause 17 of the Letters Patent by
this Court was also followed in the said decision.
19. For the foregoing reasons, I am of the considered view that
the Registry ought not to have returned the Original Petition filed by this
petitioner but anyway since a direction was given by this Court to the
Registry to number this petition, they have numbered the same leaving
the maintainability issue open. After numbering the petition, this Court
had also directed the petitioner to let in oral and documentary evidence
before the learned Master. Accordingly, the petitioner has also let in oral
and documentary evidence before the learned Master which has been
recorded.
20. Now coming to the merits of the petitioner's request for
appointment of legal guardian for R. Balaji is concerned, this Court's
discussion is as follows :-
21. The petitioner claims that both the parents of the mentally
retarded person R. Balaji, who was born on 13.11.1987 are no more.
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O.P.No.731 of 2021
The father of R. Balaji, K. Ravi died on 25.05.2021 and the mother R.
Meenakshi died on 12.04.2013. The petitioner is the first cousin of the
mentally retarded person R. Balaji. The father of the petitioner died on
11.10.2020 and his mother is still alive. According to the petitioner,
eversince the death of K.Ravi, the father of the mentally retarded person
Balaji , he has been taking care of R.Balaji. According to the petitioner
R. Balaji, the mentally retarded person is now admitted in the “Care and
Care Clinic” at New No.23, East Avenue, Near UCO Bank, Korattur,
Chennai. and the said clinic is taking care of his day-to-day needs.
According to the petitioner a sum of Rs.15,000/- is paid by the petitioner
to the said Clinic as special fees for this service for every three months.
According to the petitioner, the mentally retarded person R. Balaji has
been suffering from mental retardation which has been assessed at 60%
by the State Commissioner for disabled, Government of Tamil Nadu.
According to the petitioner excepting for him, there is no other person
amongst his kith and kin to take care of the mentally retarded person
R.Balaji. He has also pleaded that he is of sound health and he is willing
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O.P.No.731 of 2021
to act as a guardian for the mentally retarded person R. Balaji till his life
time. He has also given the list of assets standing in name of the parents
of the mentally retarded person which has now been inherited by R.Balaji
after their death and he has also filed those documents along with the
petition.
22. Before the learned Master, the petitioner was examined as a
witness (PW1). In his deposition, he has reiterated the contents of the
petition filed in support of O.P. No.731 of 2021. Through PW1, the
following documents were marked as Exhibits :
Exhibits Nature of documents
P1 Photocopy of the General Power of Attorney dated
28.12.2004 executed by Mrs.Meenakshi Somasundaram in
favour of B.Mahadevan
P2 Photocopy of the Release Deed dated 31.08.2006 in favour
of Mrs.R. Meenakshi
P3 Photocopies of the disability Certificates of R. Balaji
(Series 2
Nos)
P4 Photocopy of the Sale Deed dated 31.10.2008 executed in
favour of K.Ravi
P5 Computer generated death certificate of R. Meenakshi, who
died on 12.04.2013
P6 Computer generated death certificate of Sellappan, who
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Exhibits Nature of documents
died on 11.10.2020.
P7 Computer generated death certificate of Kamatchi, who
died on 21.05.2021
P8 Computer generated death certificate of K.Ravi, who died
on 25.05.2021
P9 Computer generated Legal Heirship certificate dated
06.08.2021 in respect of K.Ravi
P10 Photocopy of the front page of Indian Bank account
passbook bearing account No.705371237 in respect of
K.Ravi
P11 Photocopies of the fixed deposit receipts bearing
(Series 4 Nos.92027, 91873, 92028 and 92026.
Nos)
23. As seen from the evidence available on record, it is clear
that excepting for the petitioner, there is no other person amongst the kith
and kin of the mentally retarded person to support him. It is also evident
that both the parents of the mentally retarded person viz., R.Meenatchi
and K.Ravi are no more as seen from their respective death certificates,
which have been marked as Exs.P5 and P8. The certificate given by the
State Commissioner for disabled, Government of Tamil Nadu for the
mentally retarded person R. Balaji dated 26.10.2005 has also been
marked as Ex.P3, which confirms that R. Balaji has been suffering from
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O.P.No.731 of 2021
mental retardation which has been assessed at 60%. The said certificate
was issued based on the medical report submitted by the Kilpauk
Medical College which is reflected in the said certificate. The father of
the petitioner Sellappan, who is the brother of the mentally retarded
person's father (K.Ravi) is also no more as evident from his Death
Certificate which has been marked as Ex.P6 which reveals that he died
on 11.10.2020. The Legal Heirship certificate of K.Ravi, the father of the
mentally retarded person R.Balaji has also been marked as Ex.P9, which
confirms that the mentally retarded person R.Balaji is his only Legal
Heir. Being a mentally retarded person and that too when both his
parents are no more and he does not have any siblings, this Court is of
the considered view that the petitioner who is the first Cousin of the
mentally retarded person is an apt person to be appointed as legal
guardian.
24. The details of the assets standing in the name of the father
of the mentally retarded person viz., K.Ravi has also been marked as
Exhibits viz., Ex.P4, P10 and P11. The title deeds pertaining to the
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property owned by the mother of the mentally retarded R. Meenakshi has
also been marked as Ex.P2. The petitioner has sought for appointment of
a legal guardian for the person and property of the mentally retarded
person R. Balaji. He has also let in oral evidence reiterating the contents
of the petition filed in support of OP No.731 and has undertaken to
maintain the mentally retarded person in his beneficial interest and
welfare. However being a mentally retarded person, this Court is of the
considered view that the petitioner will have to submit regular accounts
in respect of the assets owned by R. Balaji, the mentally retarded person.
25. After giving due consideration to the pleadings and the
evidence available on record as well as after hearing the submissions of
the learned counsel for the petitioner, this Court is inclined to grant the
relief as prayed for and the petitioner is appointed as a legal guardian for
the mentally retarded person Mr.R. Balaji subject to the fullflilment of the
following conditions by the petitioner, which are as follows :-
(a) The guardian appointed by this Court shall disclose the
particulars of the properties both movable and immovable owned by
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Mr.K.Ravi, the father and Mrs.R.Meenakshi, the mother of the mentally
retarded person R. Balaji, before the Registry of this Court within a
period of four weeks from the date of receipt of a copy of this order.
(b) R. Balaji, the mentally retarded person shall be examined
by a Government Doctor and a report to that effect from the said
Government Doctor shall be filed before the Registry of this Court every
six months.
(c) The guardian appointed by this Court shall file a statement
before the Registry of this Court every six months, disclosing the bank
balances of Mr.R. Balaji, the mentally retarded person with various
banks/financial institutions.
(d) The guardian appointed by this Court shall render true
accounts of the funds belonging to Mr.R. Balaji, the mentally retarded
person and shall file a report before the Registry of this Court every six
months.
(e) If it is brought to the notice of any Court / any statutory
authority about misuse of funds belonging to Mr.R. Balaji, the mentally
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O.P.No.731 of 2021
retarded person, the said Court / authority is empowered to cancel the
guardianship after holding a proper enquiry.
(f) The transactions in respect of the property of the mentally
retarded person by the guardian shall be strictly in accordance with the
relevant provisions of law.
(g) If the guardian appointed by this Court is found to be
abusing the power or neglects or acts contrary to the best interest of
Mr.R. Balaji, any relative or next friend may apply to the appropriate
Court for removal of such guardian.
27.01.2022
Index:Yes/No
Internet : Yes / No
Speaking Order: Yes/No
vsi2
ABDUL QUDDHOSE, J.
vsi2
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O.P.No.731 of 2021
O.P. No.731 of
27.01.2022
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