IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.209 of 2009 UMA KUMARI Versus AMBIKA SHARMA @ AMBIKA SINGH ----------- 2. 21.4.2009 Heard counsel for the appellant. By the impugned order the court below in exercise of its power under section 50 of the Mental Health Act, 1987 (hereinafter referred to as „the Act‟) has rejected the prayer of the appellant for appointing her as a legal certificated guardian for looking after her father Ambika Sharma, the respondent, as also for managing his estate. Mr. Pramod Kumar Singh, learned counsel for the appellant, would submit that in exercise of such power the court below had violated the provisions of section 50(4) of the Act which according to him mandates for appointment of two or more persons to act as assessors. Mr. Singh submits that after filing of the application by the appellant the court has straightway proceeded to decide the matter after issuing notice and hearing the respondent without taking recourse to section 50(4) of the Act. In the considered opinion of this 2 Court the plea taken by the learned counsel for the appellant and the reliance placed on the provisions of section 50(4) of the Act is wholly misconceived. In order to appreciate the purpose and relevance of section 50(4) of the Act one will have to go into the entire scheme under section 50 of the Act, which reads as follows: “50. Application for judicial inquisition.-(1) Where an alleged mentally ill person is possessed of property, an application for holding an inquisition into the mental condition of such person may be made either- (a) by any of his relatives, or (b) by a public curator appointed under the Indian Succession Act, 1925 (39 of 1925), or (c) by the Advocate General of the State in which the alleged mentally ill person resides, or (d) where the property of the alleged mentally ill person comprises land or interest in land, or where the property or part thereof is of such a nature as can lawfully be entrusted for management to a Court of Wards established under any law for the time 3 being in force in the State, by the Collector of the District in which such land is situate, to the District Court within the local limits of whose jurisdiction the alleged mentally ill person resides. (2) On receipt of an application under sub-section (1), the District Court shall, by personal service or by such other mode of service as it may deem fit, serve a notice on the alleged mentally ill person to attend at such place and at such time as may be specified in the notice or shall in like manner, serve a notice on the person having the custody of the alleged mentally ill person to produce such person at the said place and at the said time, or being examined by the District Court or by any other person from whom the District Court may call for a report concerning the mentally ill person: Provided that, if the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may cause her to be examined by issuing a commission as 4 provided in the Code of Civil Procedure, 1908 (5 of 1908). (3) A copy of the notice under sub- section (2) shall also be served upon the applicant and upon any relative of the alleged mentally ill person or other person who, in the opinion of the District Court, shall have notice of judicial inquisition to be held by it. (4) For the purpose of holding the inquisition applied for, the District Court may appoint two or more persons to act as assessors.” From a plain reading of section 50 of the Act it would be clear that the court has been vested power to direct for judicial inquisition only in respect of mentally ill person. This becomes more significant on appreciation of the provisions of section 51 of the Act which reads as follows: “51. Issues on which finding should be given by District Court after inquisition.- On completion of the inquisition, the District Court shall record its findings on,- (i) whether the alleged mentally ill person is in fact mentally ill or not, and (ii) Where such person is mentally ill, whether he is 5 incapable of taking care of himself and of managing his property, or incapable of managing his property only.” A conjoint reading of section 50 with 51 of the Act would, therefore, go to show that it is the court which has to be satisfied with regard to mental ailment of the person and also whether he is incapable of taking care of himself and/or managing his property or incapable of managing his property only. It is in this context that the expression „mentally ill person‟ becomes significant. The Act defines under section 2(l) „mentally ill person‟ to mean a person who is in need of treatment by reason of any mental disorder other than mental retardation. A question, therefore, would arise that if the court on an application filed by any person claiming other person to be mentally ill person issues notice and the person appears before him, is the court shut out of his power to find as to whether the person is mentally ill or not. In the opinion of this Court sub-section (4) of 6 section 50 of the Act is the only enabling provision where the court finds itself incapable or in doubt with regard to the status of mental illness of the person concerned that it may choose to take help of assessors. It is in this settled background that one has to test the correctness of the impugned order dated 7.3.2009. The appellant, the daughter of the respondent, had claimed in her application that she was the only issue and daughter of the respondent and was married to one Surendra Sharma on 15th January, 1981 and when her mother died on 6.7.1992 she was the one who was taken care of her father alongwith her husband and four children. It has been claimed that even after her husband left his own house and was living as a Gharjamai in the house of the respondent, the mental condition of her father had deteriorated to the extent hat he was not capable of looking after himself or his properties. It is under these facts that the appellant had prayed before the court below for passing an order judicial inquisition as in respect of her 7 own father, the respondent to this appeal. The court below in view of the mandatory provisions in section 50(2) had issued notice seeking personal appearance of the respondent vide an order dated 16.1.2008 whereafter the respondent had appeared and had deposed before the court on 17.6.2008 wherein he had stated that he was two brothers and his elder brother Kamta Singh had died due to cardiac failure and thereafter a partition had taken place between them in the year 1989 and the family members of both the brothers had come in possession of their respective share. He had further stated that he had only one daughter Uma Kumari, the appellant, who was a teacher but she did not look after him (respondent) and was only interested in getting his properties transferred in her favour by use of force with the help of her husband. He has further stated before the court that he had given full financial support to his daughter, the appellant, but even then he did not receive any care or comfort from her and in this context he had explained that he is mentally and physically fit to look after 8 himself and cultivate his land. He has also explained to the court that after retirement he was taking pension from Punjab National Bank and the allegation of his daughter that that he (respondent) of being mentally ill was not correct and in fact was a plea for only taking forceful possession of his properties. From the impugned order it also appears that the court had put specific questions to judge the mental fitness of the respondent and he had stated that he had retired on 27.1.1995 and was drawing his pension from Punjab National Bank and the daughter of one Dinesh Singh was living with him out of love and affection. It is with these clear observations made by the court itself that a finding was recorded that the respondent Ambika Sharma was a mentally fit person with no ailment much less capable of being held as mentally ill person as defined under section 2(l) of the Act. Counsel for the appellant in fact has not disputed the recording of statement of the respondent by the court or aforementioned statement made by him before the court but then he would submit that the 9 court had no power to make such an assessment unless it had appointed assessors in terms of section 50(4) of the Act. In this context counsel had placed reliance on a medical certificate dated 10.12.2005 issued by one Dr. Arun Kumar Agrawal, Neurosurgeon and Professor of Head of Department of Neurosurgery of Patna Medical College dated 10.12.2005 which only records that the respondent was suffering from physical and mental diseases and had lost is power of understanding and had been advised to take complete rest and use essential medicines. In the opinion of this Court neither the aforementioned medical certificate nor lame plea of the daughter appellant describing her father to be mentally ill person by itself can be a proof of mental illness. The power under section 50 has to be exercised by the court and if the court after issuing notice and securing personal appearance has recorded the statement which has not been controverted by the appellant, it cannot be said that such person like the respondent can be held to be 10 mentally ill. In this context the following statement of the respondent recorded by the court including the court question would leave nothing for speculation that the respondent was a normal person and the allegation made against him of being mentally ill person thus incapable of looking after himself or his properties by the daughter appellant was itself incorrect. Such statement reads as follows: ^^1- eSa nks HkkbZ FkkA cM+k HkkbZ dk uke derk flag Fkk] og g`n; Qsy gksus ls ej x;sA 1989 dks ge nksuksa HkkbZ ds chp caVokjk gks x;k vius vius r[r ij n[ky dCtk gSA 2- eq>s ,d yM+dh mek dqekjh gS tks e/; fo|ky; esa f'kf{kdk gSA og esjk lsok Vgy ughas djrh gSA og eq>s tcjnLrh pkgrh gS fd iqjh lEifr ns nhft;sA vkfFkZd :i ls eSaus viuh csVh dks cgqr lgk;rk fd;k gSA 3- eSa fcYdqy ekufld :i ls LoLF; gS] eSa iwqjh rjg viuh [ksrh dk ns[k Hkky djrk gwW] eSa vodk'k izkfIr djus ds ckn iatkc cSad ls isa'ku ysrk gwWA 4- esjh csVh dk ;g dguk xyr gS fd eS viuh lEifr dh ns[kHkky ugha dj ldrk gwW] eSa o`}k gwW] blfy, [ksr ls vkenuh djrk gwW esjh csVh us xyr dsl fd;k gSA 11 Vw dksVZ% esa 1995 esa 29 tuojh dks lsok fuo`r gqvkA esjk [kkrk ua0 vHkh ;kn ughs gS tgkukckn iatkc us'kuy cSad ls eSa isa'ku ysrk gwW] fnus'k 'kekZ dh cPph vHkh esjk lsok djrh gSA** This Court would find that the appellant has also challenged an earlier order dated 16.1.2008 in Misc. Appeal No. 119/2008 whereby and whereunder it had passed an order for personal examination of the respondent in terms of section 50(2) of the Act. As a matter of fact the said appeal had already been dismissed today on account of it becoming infructuous but then from the tenor of the impugned order in that appeal dated 16.1.2008 it would be clear that there was an opportunity to the appellant to be heard in the matter of alleged mental ailment of her father, the respondent, and if she did not purposely or knowingly avail that opportunity she today cannot complain with regard to the impugned order being passed without affording any opportunity of hearing to her. It is really unfortunate for this Court to find that an old father in stead of 12 being helped in his last days of his life by his daughter is being made to run around the corridor of the court by labeling him to be a mentally ill person. From the material on record this Court is satisfied that it was somehow dubious design of the daughter appellant to grab the property of her father that such a frivolous application was filed by her claiming judicial inquisition of her father. This Court would not like to say anything more but then it must be held that the application filed by the appellant under section 50 of the Act was a frivolous to the core and was rightly dismissed by the court below. That being so, this Court would not find any merit in this appeal and the same is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/