AISHABAI Vs. ISMAIL SAKHI

JUDGEMENT

(1.) This is tin appeal from an order made by Mr. Justice Blackwell dismissing the petition of a wife to have her husband adjudicated a lunatic. The appellant is the wife, and a preliminary point is taken that from such an order she has no right of appeal. That question involves in the first place the question whether the order is a judgment within Clause 15 of the Letters Patent, a question which has very frequently been considered in this Court. I may for convenience refer to a short summary of the decisions in a judgment of mine in Ramanlal V/s. Chunilal (1931) 34 Bom. L.R. 252, where at page 253 I said :- ...putting it shortly, the view which has always prevailed in this Court since the decision in Miya Mahomed V/s. Zorabi (1909) 11 Bom. L.R. 241 is that any order affecting the merits of the question between the parties by determining some right or liability is a judgment within Clause 15 of the Letters Patent. In that case, and in the cases on which the summary was based, the question arose in a suit inter partes, but references to the order affecting the merits of the question between the parties must not be taken as meaning that there can be no judgment within Clause 15 of the Letters Patent except in some proceeding inter partes. It is, I think, clear that there is nothing in Clause 15 which would justify such a limitation, and indeed I feel no doubt whatever that a judgment of the Court declaring a person to be a lunatic would be a judgment within the meaning of Clause 15 of the Letters Patent. But the question with which we have to deal is whether an order refusing to declare a person lunatic is a judgment within that clause, and if it is, whether the wife of the alleged lunatic can exercise the right of appeal.

(2.) Mr. Taraporewala for the appellant puts his case in two ways. He says, first of all, that the wife has certain contingent rights in the property of the lunatic, because the Court might make an order giving her some right of maintenance out of the property of the lunatic under Section 46 of the Indian Lunacy Act, and that the order affects those rights. There is, I think, no force in that contention. The Court of Lunacy acts in the interests of the lunatic, and not in the interests of the relative of the lunatic. When an order is made giving the wife or other relative A right to maintenance out of the lunatic's property, the Court acts on the footing that the lunatic himself would desire such an order to be made. But, in my opinion, neither the wife nor any other relative can bo said to have any right in the property of the lunatic which is interfered with by the order of the Court adjudicating or refusing to adjudicate a person a lunatic.

(3.) Then Mr. Taraporewala puts his case on an alternative ground, which offers a more hopeful prospect. He says that the alleged lunatic has a right to the protection afforded to him by the Indian Lunacy Act, and that the order made by Mr. Justice Blackwell deprives him of that right. I think the answer to that is that the order of the learned Judge refusing to adjudicate a man a lunatic cannot be treated as a judgment at all, because it leaves the parties in precisely the same position as they were in before, and does not affect anybody's rights. All that the order does is to hold that at the date of the petition there was no sufficient evidence of lunacy. I think, therefore, that the order is not a judgment within Clause 15 of the Letters Patent, but, even if it be, I fail to see how the wife of the alleged lunatic can appeal from it. The only possible appellant, I think, would be the alleged lunatic himself, who is not likely to prefer an appeal. The man in question not having been proved to be a lunatic or incapable of managing his affairs, it is not competent, in my opinion, for his wife or anybody else to act on his behalf. Under Section 39 of the Indian Lunacy Act express power is given to a relative of the alleged lunatic or the Advocate General to apply for an inquisition. That is the section under which the wife applied in the present case. But there is no section in the Indian Lunacy Act which enables a relative or the Advocate General to prefer an appeal against an order made on the inquisition. If a man be adjudged lunatic there are rules under which a next friend can. be appointed, but, in my opinion, in the absence of some statutory provision neither the wife nor any other relative nor the Advocate General is competent to prefer an appeal on behalf of a man against whom no order has been made. That being so, I think the preliminary objection must be uphold and the appeal must be dismissed. Rangnekar, J.