ABDUL SALAM Vs. ISMAIL

JUDGEMENT

(1.) PETITIONER in O. P. (Lunacy) No. 159 of 1980 on the files of the District Court, Thiruvananthapuram is the appellant.

(2.) APPELLANT filed the above application under S. 40,41,42,62 and 63 of 'indian Lunacy Act IV of 1812 (hereinafter referred to as the Act), seeking to declare that his father's sister, Pathummal Beevi Kunju is a lunatic and to appoint the petitioner as the guardian of her person and properties. There is also a prayer in the petition to declare that the decree passed in O. S. No. 91 of 1975 on the file of the Munsiff's Court, Nedumangad is void and will not bind the lunatic or her properties. The application was dismissed by the learned District Judge stating that questions were put to her by him and on a perusal of the answers given by her, he was not satisfied that she was of unsound mind. In this M. F. Appeal, appellant has challenged the order of the court below.

(3.) IN this appeal, learned counsel for appellant submitted that the court below has not properly exercised jurisdiction vested in it under the Act. It is contended that there was no proper inquisition as contemplated under the law. Learned counsel further pointed out that in the plaint in O. S. 91/75, the plaintiff admitted that the aforesaid Pathummal Beevi Kunju was of unsound mind, but still no guardian or next friend under O. 32 R. 15 C. P. C. was appointed. Learned counsel submitted that the property involved in O. S. 91/75 measuring 43 cents was purchased by the lunatic under registered sale deed of Midhunam 1121 and that the lunatic is residing in a building in the said property and the respondents had taken steps to evict the lunatic from the property in execution of the decree in the above where she was set ex parte. IN the backdrop of the above circumstances, learned counsel submitted, the court should have made a proper inquisition before dismissing the application. Learned counsel also submitted that the answers of the alleged lunatic to the various questions put to her by the court itself would indicate that she is of unsound mind. He also complained that though an application was filed for getting the lunatic examined by an expert, that was not allowed by the court below.