SAHEBZADA MAHAMMAD MUNWAR SULTAN Vs. SAHEBZADI SHAMSUNNESSA BEGUM

JUDGEMENT

(1.) I am of opinion that the course taken in the Court below affords not a little just grievance to the lady against whom the proceedings were taken but it affords none whatever to the present appellant. The smallest attention to the words of the Indian Lunacy Act whether they be the words of Section 62 or the words of Section 38 shows this that the Legislature appreciates that to have an inquisitition into the state of health, the state of mind, the state of property and general capacity of a person is a thing which affects that person so prejudicially that it ought not to be taken except it be first ordered upon a careful consideration of evidence. It was said in a case, which is, I think, the case to which some reference is made in the judgment of the Court below [Muhammad Yaqub V/s. Nazir Ahmad 68 Ind. Cas. 617 : 12 A. 501 : 18 A.L.J. 557]. "It is true that nothing is contained in the Act itself to direct or guide a Judge as to how he shall consider applications for an inquisition and probably no rules exist for dealing with the matter; but ordinary common sense would appear to dictate to a tribunal before whom such an application comes that care should be exercised in a painful matter of this kind, namely, an inquiry into a man's or woman's state of mind; specially in the case of people in comfortable circumstances who merely wish to lead a quiet life, care should be exercised that they are not suddenly flung without sufficient reason into an elaborate inquisition which after all is nothing more or less than a trial involving sometimes the history of a person's life back for many years, medical evidence, and all sorts of family witnesses." Now, in this case, an application was presented to the learned District Judge and was registered on the 31 of March 1922. In May of that year the lady against whom it was made who appears to be an old lady and a purdanashin lady filed a sworn statement in reply and certain documents having been filed, the first order made is Order No. 5 of the 15 of May. "Pleader for Petitioner appears and states that a very lengthy written statement has been filed by the Opposite Party and that until he has had time to consider the objections, it will not be possible for issues to be framed." Now, that shows that the pleader for the Petitioner had entirely omitted to notice that, before anything like an enquiry involving framing of issues should be undertaken, the learned Judge had a most important duty to perform as regards this lady. He had no business whatever to tumble into an inquisition. His business was carefully to consider whether there were any grounds for holding an inquisition. The order goes on: "It is desirable, however, that the hearing of this case should be expedited as much as possible. Issues will be settled on the 22nd of May." That seems to me to show that the learned Judge had entirely omitted to notice what the duty was that rested heavily on his shoulders. On the 22nd May, in pursuance of the attitude disclosed by the order of the 15 an issue was framed being no less than a complete issue as to whether the lady was of unsound mind and incapable of managing herself and her affairs. Accordingly the Judge said: "It will now be necessary to have a report of the mental capacity and condition of the alleged lunatic"; and then, after some little time, on the 31st, two eminent medical practitioners were appointed to make an examination. Thereupon, the lady filed an application and it is rather interesting to see the attitude of mind disclosed by this application. I propose to take the narrative as regards this from the judgment of the learned Judge himself. " Therefore, on the 16 June last, an application was filed on behalf of Shamsunnessa Begum praying that the inquisition which had been ordered to be held by two medical officers"--this may be a mere quotation bub it shows a considerable confusion of mind on the part of somebody--"might not be proceeded with on the ground that it would involve considerable expense and inconvenience and praying that instead thereof the Court would be pleased to fix a date for personal examination of the alleged lunatic in camera with a view to ascertaining whether she is, in fact, a lunatic and whether there is any need for holding an inquisition." A more proper application than that I find it difficult to conceive. I should have thought that the lady was entitled to apply to this Court in revision to have the proceedings in the Court below stopped. She applied, however, to the Trial Court asking it to do its duty to consider whether there was any need for holding an inquisition and, in support of that application, she called attention of the Court to tie case of Muhammad Yaqub V/s. Nazir Ahmad 68 Ind. Cas. 617 : 12 A. 501 : 18 A.L.J. 557 which rightly or wrongly advises the Judges before ordering an inquisition to take steps, if possible, to see the alleged lunatic in person. The learned Judge in the present case appreciated the force of the lady's application and accordingly an order was made directing that she should be examined in camera and the learned Judge's order says: "In these circumstances," he has referred to some matters of suspicion, "it is the more desirable that the Court should see the alleged lunatic and satisfy itself whether there are any grounds for ordering the inquisition formerly prayed for." Those are the words of the learned Judge's own order. He did see the alleged lunatic and her answers are in the paper-book. He came to the conclusion having regard to the allegations in the petition that the whole application of the applicant was a piece of oppression and was mala fide, and he dismissed the application then and there. It is said that the learned Judge had begun the inquisition. I quite appreciate the force of the criticism that is made in this connection but here the learned Judge had slid into the proceedings proper to an inquisition without knowing it and without making any order or coming to any decision which would entitle him to commence it. It is arguable that the power conferred by Section 41 of the Indian Lunacy Act is a power which only arises when an inquisition has been ordered. The present case is not a case of the Court exercising a power to require the lunatic to come before it personally. This is a case where the alleged lunatic herself asked to be examined and the learned Judge had at any rate some authority in his support in examining the lady in the presence of the parties, even on the assumption that there was no inquisition. In these circumstances, what happened was that owing to the lady's taking a very reasonable step in making her well-founded application on the 16 of June, the learned Judge saw his error. He came to the conclusion that there was no ground for ordering an inquisition and he must have, I think, repented of the fact that he had not with sufficient care followed the statute and let himself slide into holding an inquisition which he had no jurisdiction to hold. In these circumstances it seems to me that while the alleged lunatic may have some grievance in the matter, the present appellant has none, and that his appeal should be dismissed with costs, hearing fee two gold mohurs.