H M MUHAMMAD IBRAHIM Vs. MRABDUL HAFEEZ SAHIB

JUDGEMENT

(1.) The only question that arises for consideration in this appeal is whether the District Judge of West Tanjore had or had not jurisdiction, to entertain an application under Section 62 of the Lunacy Act for directing a judicial inquisition regarding the lunacy of an idiot, Muhammad Ismail by name, aged 22 on the date of the petition. The petition was dismissed in limine by the District Judge on the ground that he had no jurisdiction to entertain it and that it would be open to the petitioner to renew the application if and when the idiot returned to the jurisdiction of that Court. According to the learned Judge the alleged idiot was a permanent resident in Mysore state and therefore, he had no jurisdiction to direct a judicial inquisition regarding the lunacy of the idiot. This order of the learned District Judge was confirmed on appeal by Horwill, J. The learned Judge was also of the same opinion as the learned District Judge- for the reason that, as the alleged lunatic was living for three years with the respondent who was a permanent resident of Mysore State it followed that the alleged lunatic also was a permanent resident of Mysore state and that therefore, he was not subject to the jurisdiction of the District Court of West Tanjore.

(2.) The petition under Section 62 of the Lunacy Act was filed by the father of the alleged lunatic and impleaded as party to that petition the respondent who was appointed the property guardian for the A schedule properties under a settlement deed of May 1936 executed by one Jainambi, maternal grandmother of the alleged lunatic whereunder the property was settled upon the alleged lunatic. Besides this A schedule property Jainambi left also B schedule property to which the alleged lunatic succeeded as her heir. The respondent according to the allegations in the petition was in possession and management of the A schedule property and was. also attempting to alienate the B schedule properties after kidnapping the lunatic from Tanjore, sometime in January 1944, and removing him to Mysore State where the respondent was residing. The petitioner seems to have taken the matter to the police to recover the custody of the boy but was unsuccessful. Notwithstanding the request of the petitioner the respondent refused to send back the toy to his father and as the properties were being mismanaged, the father filed the application under Section 62 of the Indian Lunacy Act for removing the respenoent from the guardianship in respect of the A schedule properties, for appointing the petitioner as the guardian of the person and property of the alleged lunatic and also for recovery of the custody of the idiot.

(3.) Under Section 3(5) of the Lunacy Act, the word "lunatic" is defined as meaning an idiot or a person of unsound mind. Therefore for purposes of the Act, an idiot is also a lunatic. The jurisdiction of the Courts to entertain proceedings for judicial inquisition as to lunacy is defined in part III of the Act. Chapter IV relates to proceedings in lunacy in presidency Towns and Chapter V relates to proceedings in Lunacy outside the presidency towns. In the presidency towns of Calcutta, Madras and Bombay the High Courts alone have jurisdiction, ide Section 37 of the Act. Under Section 38 of the Act, the High Court has jurisdiction over persons who are subject to the jurisdiction of the Court and who are alleged to be lunatics and to entertain an application for directing an inquisition as to the alleged lunacy of the person concerned. Section 43 of the Act seems to contemplate that even if a person is outside the jurisdiction of the High Court and is within the jurisdiction of the District Court, if otherwise the person was subject to the jurisdiction of the High Court, the High Court alone would have jurisdiction, to entertain proceedings but power is given under that section to direct inquisition to be made by the District Court within whose local jurisdiction the alleged lunatic may be residing. The jurisdiction outside the presidency towns is conferred upon District Courts and it depends upon the residence of the alleged lunatic. If the person is residing within the jurisdiction of the District Court that District Court would have jurisdiction but this jurisdiction is subject, however, to the exclusive . jurisdiction of the High Court if the said person happens to be also subject to the jurisdiction of the High Court. This question was considered by the Calcutta High Court in Anilabala Chowdhurani V/s. Dhirendra Math Saha (1920) I.L.R. 48 Cal. 577 (F.B.), in which the question was elaborately examined by that Court and the conclusion reached was that if a person was subject to the jurisdiction of the High Court, the District Court in whose jurisdiction the alleged lunatic was for the time being residing would have no jurisdiction to entertain proceedings notwithstanding the personal residence of the alleged lunatic.