SIMHACHALA MAHANTI Vs. BHAGIRATHI MAHANTI

JUDGEMENT

(1.) This is an appeal by the 1st respondent in O.P. No. 11 of 1971 on the file of the court of the District Judge, Srikakulam. The respondent herein filed O.P. No. 11 of 1971 under Section 71 of the Indian Lunacy Act for his being appointed as the property guardian of the property described in the A schedule of the petition belonging to the alleged lunatic The petitioner in the O.P. was examined as P.W. 1 and the appellant herein (1st respondent therein) was examined as R.W. 1. A few documents were marked in the case.

(2.) The facts necessary for the disposal of the appeal may be briefly stated. One Malathi Mahantiani, the alleged lunatic, is the widow of the brother of the petitioner Bhagirathi Mahanthi. In settlement of the widow's claim for maintenance, under the original of Exhibit A-1, on 26-6-1950 certain property was settled on Malalthi Mahanthiani. Under the terms of the settlement deed, an extent of four acres of wet land described in the A schedule to the petition was given to Malathi Mahantiani towards her maintenance for life. After her death, the property was to go back to the petitioner. It would appear that at the instance of her brother M.P. No. 253 of 1967 on the file of the court of the First Class Magistrate, Sompeta was filed under Sections 5 and 6 of the Lunacy Act praying that a reception order might be passed with reference to Malathi. An order was passed on 23-8-1967 for receiving Malathi into the Mental Hospital at Visakhapatnam on the ground that she was a violent and dangerous lunatic. Exhibit B-2 is the certified copy of the petition and the order in M.P. No.253 of 1967. As Malathi was in the Mental Hospital at Visakhapatnam her property given to her under Exhibit A-1 was in the possession of her brother. The lower court quite correctly fund that the petitioner could not be appointed as the guardian of the property of the alleged lunatic on the ground that his interests were adverse to those of the lunatic because he stood to benefit by her death, in that the property would revert to him. The lower Court also found that her brother the 1st respondent in the petition, was also not a fit and proper person to be appointed as a guardian. However, that court on an oral examination of Malathi in court had stated that it was satisfied that she was a lunatic incapable of looking after herself and her affairs. The result was that the Court appointed an Advocate of Sompeta as Manager of the A schedule properties belonging to the alleged lunatic. It is the order of the District Court as made above that is now challenged by the brother of the alleged lunatic.

(3.) The learned counsel contended that the application under Section 71 filed by the petitioner was incompetent inasmuch as there was no inquisition and there was no judicial finding that Malathi is a lunatic. It is contended that in the absence of an inquisition, the Court had no jurisdiction to appoint any receiver or manager for the properties of the alleged lunatic. The learned counsel contended that the fact that there was a magisterial reception order would not clothe the District Court with jurisdiction to deal with the properties of the alleged lunatic by appointing a guardian. It is therefore contended that the impugned order of the Court below was made without jurisdiction. I find considerable force in the submission of the learned counsel of the appellant.