FAO No.3035 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.3035 of 2010 (O&M) Decided on: 30.11.2010 **** Inder Sain . . . .Appellant Versus Om Parkash and others . . . .Respondent **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.P.S. Dhaliwal, Advocate for the appellant. Mr.Ravish Bansal, Advocate for Mr.Jatinder Singla, Advocate for the respondents No.1 to 4. Mr.Harkesh Singh Sidhu, Deputy Commissioner, Sangrur – respondent No.6 in person **** RAKESH KUMAR JAIN, J. (ORAL) The important question of law involved in this appeal is “as to whether in case of a dispute between the brothers with regard to their appointment as manager of a mentally ill person, the Court can appoint the District Collector/Deputy Commissioner as the manager?” This appeal has arisen out of an order dated 18.2.2010 passed by the District Judge, Sangrur by which a petition filed by the appellant under Sections 52 and 54 of the Mental Health Act, 1987 (for short ‘the Act’) has been dismissed. The case revolves around the property of a mentally ill person namely, Kaka Ram son of late Kapoor Chand. FAO No.3035 of 2010 (O&M) -2- The brief facts of the case are that the appellant-Inder Sain filed a petition under Sections 52 and 54 of the Act against his three brothers, one of his brother’s son and the tenant on the land, for appointing him as manager of the property of his mentally ill brother Kaka Ram on the ground that he is incapable of taking care of himself and managing his property including the bank deposits. The properties owned by Kaka Ram, mentioned in the petition, are as follows: (i) 1/2 share in the land comprising in Khewat No.2191 Khasra No.174//25/8-0 and Khewat No.3173 Khasra No.173//21/1/4-9 as per jamabandi for the year of 2004-2005 situated in the revenue estate of Sangrur-A. (ii) 2/7 share in the land measuring 71 kanals 18 marlas comprising in Khewat No.547 Khasra No.12//21/7-4, 13//14/3-9, 16/5-15, 17/8-0, 18/3-16, 23/2/2-12, 24/8-0, 25/8-0, 29//3/2/2-9, 4/7-11, 5/6-11, 26/1-0, 30//1/7- 11 as per jamabandi for the year of 2004-2005 situated in the revenue estate of Mehlan-B. (iii) Bank deposit in Oriental bank of Commerce, Sangrur branch in saving bank account No.2319. (iv) Bank deposit in account No.CDR-5173 to CDR- 5178 in Oriental Bank of Commerce, Branch Sangrur and in State Bank of Patiala, New Grain Market Branch, Sangrur. (v) 1/6 share in the property/estate left behind by late Kapoor Chand, who died intestate on 21.02.2007. FAO No.3035 of 2010 (O&M) -3- It is further alleged that earlier Kapoor Chand father of Kaka Ram had filed an application No.4 under Sections 52, 53 and 54 of the Act for his appointment as a gurdian of Kaka Ram, which was allowed by the Court of Sh.B.S. Mangat, Addl. District Judge, Sangrur on 24.9.2003 with the following observations: “in the light of the aforesaid discussion and in view of my findings on issues No.1 and 2, I appoint Shri Kapoor Chand, petitioner, as guardian of his mentally ill son Kaka Ram, with the directions that he will not withdraw any amount from his CDRs lying deposited in the Oriental Bank of Commerce, Sangur, without the permission of the Court. Manager of the Bank is directed to renew these CDRs automatically. However, he would be at liberty to spend the amount, which he will get any way of chakota pertaining to the share of the land of Kaka Ram. It is further obtained that Kapoor Chand will not sell any immovable property belonging to his mentally ill son Kaka Ram without the permission of the Court. In case, Kapoor Chand feels that income from the land of Kaka Ram and interest income, if any, already accruing from the deposits of Kaka Ram is not adequate for looking after and for providing medical treatment to kaka Ram, he can file an application in the Court for permitting him to withdraw interest amount from the CDRs of Kaka Ram by depicting complete facts and figures.” FAO No.3035 of 2010 (O&M) -4- Unfortunately, Kapoor Chand died on 21.02.2007 which led to the filing of the present petition at the instance of his brother Inder Sain in which he alleged that earlier Kaka Ram had gone somewhere on 25.6.2006 regarding which DDR No.29 dated 28.6.2006 was recorded and on information, he was brought back but now again he is missing from home since 03.02.2007 and his whereabouts are not known regarding which a missing report was lodged by his brother Om Parkash in Police Station, Sangrur. It is also alleged that 2/7 share of Kaka Ram is in possession of Jagroop Singh son of Arjan Singh (respondent No.5) as choktedar at the rate of Rs.19,500/- per acre. The applicant/appellant further alleged that respondents No.1 to 4 had claimed themselves to be the successor of the entire property left by late Kapoor Chand on the basis of registered Will dated 07.06.1994 and one unregistered Will dated 18.5.2006 and were claiming chakota amount of the land of Kaka Ram as well and were further claiming that they have been authorized by Kaka Ram to operate his bank accounts after the death of Kapoor Chand. It was alleged that respondents No.1 to 4 are neither the guardians nor managers and have not been authorized to operate the bank accounts of Kaka Ram and are trying to usurp his property. On this pretext, the petition was filed that since whereabouts of Kaka Ram are not known, therefore, the appellant may not be appointed as guardian but insofar as his property is concerned, he may be appointed as manager. The other three brothers of Inder Sain and Kaka Ram filed a joint reply in which they had accused the appellant that in the garb of the present petition he wanted to grab the property of Kaka Ram. It was alleged that being real brothers they have been looking after Kaka Ram in all respects. The amount of chakota pertaining to the share of Kaka Ram was spent in order to trace him. The appellant then filed rejoinder. Both the parties led their respective evidence on the issue as to whether appellant FAO No.3035 of 2010 (O&M) -5- is entitled to be appointed as manager regarding the property of Kaka Ram. The learned Court below vide its impugned order dismissed the petition filed by the appellant on the ground that when Kaka Ram, at the time of petition, was missing, the petition filed under Sections 52 and 54 of the Act was not maintainable. Learned counsel for the appellant has submitted that judicial inquisition in terms of Section 50 of the Act had already been carried out in view of the order passed by Mr.B.S. Mangat, Addl. District Judge, Sangrur on 24.9.2003 when late Kapoor Chand was appointed as a guardian and manager of the property of Kaka Ram. In the present case, the question is only as to who should be the manger of the property of Kaka Ram in his absence because there is no dispute that Kaka Ram was a mentally ill person and his whereabouts are not known at present. Initially, both the sides, who happened to be the real brothers of Kaka Ram were claiming their rights to be appointed as the manager of his property but during the course of hearing on 28.10.2010, it transpired that they are not averse to the appointment of the Collector of the District as the manager to look after the property of Kaka Ram. Thus, in view thereof, the Deputy Commissioner/Collector, Sangrur was impleaded as respondent No.6 and notice was issued to him for 15.11.2010. Since, the Collector did not appear on 15.11.2010, despite service, therefore, this Court had directed him to be personally present on 30.11.2010. Today on 30.11.2010, Mr.Harkesh Singh Sidhu, Deputy Commissioner, Sangur has appeared in the Court. As the real brothers of Kaka Ram are at logger’s head, whether there is a provision under the Act for the appointment of the Collector/Deputy Commissioner as the manager of the property of the mentally ill person. In this regard, learned FAO No.3035 of 2010 (O&M) -6- counsel for the appellant has referred to Section 52, 54 & 55 of the Act, which reads as under: - “52. Provision for appointing guardian of mentally ill person and for manager of property - (1) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of taking care of himself and of managing his property, it shall make an order for the appointment of a guardian under Sec. 53 to take care of his person and of a manager under Sec. 54 for the management of his property. (2) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of managing his property but capable of taking care of himself, it shall make an order under Sec.54 regarding the management of his property. (3) Where the District Court records a finding that the alleged mentally ill person is not mentally ill, it shall dismiss the application. (4) Where the District Court deems fit, it may appoint under sub-section (1) the same person to be the guardian and manager.”“ “54. Appointment of manager for management of property of mentally ill person – (1) Where the property of the FAO No.3035 of 2010 (O&M) -7- mentally ill person who is incapable of managing it is such as can be taken charge of by a Court of Wards under any law for the time being in force, the District Court shall authorise the Court of Wards to take charge of such property, and thereupon notwithstanding anything contained in such law, the Court of Wards shall assume the management of such property in accordance with that law. (2) Where the property of the mentally ill person consists in whole or in part of land or of any interest in land which cannot be taken charge of by the Court of Wards, the District Court may, after obtaining the consent of the Collector of the District in which the land is situate, direct the Collector to take charge of the person and such part of the property or interest therein of the mentally ill person as cannot be taken charge of by the Court of Wards. (3) Where the management of the property of the mentally ill person cannot be entrusted to the Court of Wards or to the Collector under sub-section (1) or sub-Section (2), as the case may be, the District Court shall appoint any suitable person to be the manager of such property.” “55. Appointment of manager by Collector.-Where the property of a mentally FAO No.3035 of 2010 (O&M) -8- ill person has been entrusted to the Collector by the District Court under sub-section (2) of Sec. 54, he may, subject to the control of the State Government or of any authority appointed by it in that behalf, appoint any suitable person for the management of the property of the mentally ill person.” As already observed that judicial inquisition under Section 50 of the Act is already there that Kaka Ram is a mentally ill person and has property in his name. Section 52 of the Act provides the jurisdiction to the District Court to give finding that the mentally ill person is incapable of taking care of himself and his property. Section 55 of the Act further enables the Collector of the District appointed under Section 54(2) of the Act to appoint any suitable person for the purpose of management of the property of the mentally ill person. Section 56 of the Act requires the person, who is appointed as manager to enter into a bond of some sum, in such form and with such sureties as that authority, may specify, to account for all receipts from the property of the mentally ill person. Section 57(2) of the Act provides for some remuneration to the manager out of the property of the mentally ill person. Section 58 of the Act lays down the duties of guardian and the manager. Section 59 of the Act provides the powers of the manager. Section 66 of the Act further provides for furnishing of an inventory and annual accounts of all immoveable property belonging to the mentally ill person. Section 61 of the Act says that manager may execute conveyances and contracts of transfers with the permission of the District Court and so on and so forth. As a matter of fact Chapter VI of the Act provides a complete procedure with regard to judicial inquisition, appointment of guardian of the person and manager of the property of the mentally ill person. FAO No.3035 of 2010 (O&M) -9- In terms of Section 54(2) of the Act, this Court had taken the consent of the Collector, Sangrur within whose jurisdiction, the entire property belonging to mentally ill person Kaka Ram is situated. Mr.Harkesh Singh Sidhu, District Collector, Sangrur has given his consent to the Court for his appointment as the manager of the immoveable and moveable property of Kaka Ram but he has also prayed that keeping in view his other engagements, he may be given permission to appoint some responsible person to act as a manager in terms of Section 54(2) of the Act. Both the counsel for the parties have given their consent for the appointment of the Collector/Deputy Commissioner, Sangrur as the manager of the property of mentally ill person Kaka Ram. In view of the above facts and circumstances, this Court, while answering question posed in the beginning of the judgment in affirmative hold that in case of dispute between the legal heirs of a mentally ill person regarding their appointment as manager of his property, the Court can appoint Collector/Deputy Commissioner as his guardian after obtaining his consent in terms of Section 54(2) of the Act. Accordingly, the following directions are being issued: (i) The Deputy Commissioner/Collector, Sangrur is appointed as the manager of the property of mentally ill person Kaka Ram. (ii) He is at liberty to appoint a suitable person to manage the property of Kaka Ram, if so desired, who shall be under his control. (iii) The manger so appointed shall execute a bond in terms of Section 56 of the Act and FAO No.3035 of 2010 (O&M) -10- shall be paid suitable allowance out of the income of the property of Kaka Ram in terms of Section 57(2) of the Act. The manager so appointed shall furnish inventory and annual accounts in terms of Section 60 of the Act and shall discharge his duties as enshrined under the Act. (iv) The Deputy Commissioner/Collector, Sangrur is further directed to ensure that the immoveable and moveable property of Kaka Ram shall not be usurped and wasted. Before parting with this judgment, this Court strongly feels that the Deputy Commissioner/Collector, Sangur, at his own level, should make all efforts to trace out the whereabouts of Kaka Ram, who is allegedly unheard of w.e.f. 03.02.2007 regarding which a missing report has already been registered by his brother Om Parkash (respondent No.1) in Police Station, Sangrur as alleged in para No.4 of the petition filed by Inder Sain (appellant). (RAKESH KUMAR JAIN) 30.11.2010 JUDGE Vivek