Shanmughasundaram (unsound mind) by guardian mother Bagya Rathnammal vs C. Ponnusami Mudaliar and Another

V. Sethuraman, J.—This petition has been filed against an order in I A. No. 483 of 1976 in O. S. No. 149 of 1975 on the file of the

Subordinate Judge, Erode That I. A. came to be filed by the 1st defendant for her appointment as the guardian of the 3rd defendant, who, though

a major, was stated to be of unsound mind. There was no counter filed and when the matter came up for final orders the learned Subordinate

Judge by his order dated 28th April, 1976 cryptically observed:

The 3rd defendant appeared in person on 17th April, 1976. I found him on examination as a man quite sane. Hence, I do not find that the petition

is maintainable. Petition is dismissed.

The unsuccessful applicant has now come forward with the present revision.

The learned Counsel for the petitioner contended that the Court below was wrong in passing the Order in the manner it did. It was also

submitted that a regular judicial enquiry as to the lunacy or insanity should have been conducted and conclusion arrived at on that basis.

For this purpose, my attention was drawn to three decisions. The first one is P.P. Ar. Rm. Sp. Ramanathan Chettiar by mother and guardian

Meenakshi Achi Vs. A.R.R.M. Somasundaram Chettiar, wherein after the final disposal of the suit by the appellate Court, the major defendant''s

mother put in applications for her appointment as his guardian-ad-interim on the ground of the defendant''s mental in firmity and inability to manage

his affairs and for applying the provisions of the Madras Agriculturists Relief Act to the appellate decree. The applications were remitted to the

lower Court which instead of holding regular judicial inquiry contemplated by Rule 15 of Order 32 of the CPC thought it sufficient to rely on the

previous history of the litigation and on its own opinion formed after looking at the defendant and eliciting answers to some questions. The mother

was given no opportunity of adducing evidence specially in the shape of doctor''s certificate. It was held that it was incumbent on the Court to hold

a regular judicial inquiry and desirable to invite the parties to adduce proper evidence even if the parties were somewhat indifferent, especially

where the consequence of the dismissal of the petition would be to prevent the application of the provisions of the Madras Agriculturists'' Relief

Act. The fact that a person was a man of weak intelligence was held not to be a sufficient ground to hold that he is an insane person or to appoint a

guardian ad litem and that it depends on the degree of weakness of intelligence.

Panchapakesa Ayyar, J., in Balakrishnan Vs. N.B. Balachandran and Another, had also to consider a similar question and after referring to

Order 32, Rule 15, Civil Procedure Code, it was pointed out that:

The procedure involves a judicial enquiry which consists normally of two parts: (1) questioning the lunatic by the Judge himself in open Court, or in

chambers, in order to see whether he is really a lunatic and of unsound mind, and (2) as the Court is generally presided over by a layman, to send

the alleged lunatic to a doctor, for report about his mental condition after keeping him under observation for some days. That observation need not

necessarily mean detaining the man even in hospital. It is enough if the doctor applies the tests at periodical visits to him spread over two or three

days, and then gives his conclusions. When this elementary precaution of a judicial enquiry prescribed by law is not observed, I am afraid that the

laws of this country will not allow a man to be declared a lunatic and a guardian appointed for him on such basis.

It is true that in this decision the caution to be exercised before declaring a person as lunatic and appointing a guardian, is indicated. In other

words, the need for circumspection, before passing such an order is emphasised. However, the need for and scope of the enquiry to be conducted

are indicated in the decision and that is what is relevant here.

In S. Chattanatha Karayalar Vs. Vaikuntarama Karayalar and Another, the duty of a Court to act judicially in the interest of justice in a case of

this kind has been reiterated. It was pointed out that the Court has to give a clear finding that the person concerned by reason of his infirmity is

incapable of protecting his interest. In this case, also the caution that has to precede the declaration of a person as of insane mind is indicated, but

what is necessary to remember is the enunciation of the scope of the provisions of Order 32, Rule 15, Civil Procedure Code. As pointed out in

P.P. Ar. Rm. Sp. Ramanathan Chettiar by mother and guardian Meenakshi Achi Vs. A.R.R.M. Somasundaram Chettiar, the questions and

answers if reduced to writing would make it possible for a Court of revision to decide whether the conclusions arrived at on any aspect of the case

was justifiable.

In the present case, no judicial enquiry was conducted and the application for guardianship has been rejected, if I may say so unceremoniously. I

do not think the learned Subordinate Judge has exercised his jurisdiction or duty that is cast on him under Order 32, Rule 15, Civil Procedure

Code. The Civil Revision Petition is, therefore, allowed and the order of the Court below is set aside and the matter is remanded to the Court

below for fresh disposal in accordance with law. The respondents, if they are so advised, are permitted to file a counter and the matter would be

disposed of on the basis of the evidence that may be adduced by the parties. No costs.