ash 1 fa-205.06n1930.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.205 OF 2006 WITH FIRST APPEAL NO.1930 OF 2005 F.A.NO.205 OF 2006 Anna Vedu Salunkhe. .. Appellant Vs Kum. Srushti Sahebrao Salunkhe, through minor guardian Sakhubai Popat Sagar and Others. .. Respondents -- Ms Leena Patil for the Appellant. Ms M.S. Salekar i/by Shri N.R. Bubna for Respondent No.1. -- F.A.NO.1930 OF 2005 Sau. Sakhubai Popot Sagar. .. Appellant Vs Shri Anna Wedu Salunke & Another. .. Respondents -- Ms M.S. Salekar i/by Shri N.R. Bubna for Appellant. Ms Leena Patil for the Respondents. -- CORAM : A.S. OKA, J SUBMISSIONS WERE HEARD ON : 20TH AUGUST, 2011 JUDGMENT PRONOUNCED ON : 14TH OCTOBER, 2011 ash 2 fa-205.06n1930.05 JUDGMENT : . These Appeals can be conveniently disposed by by a common judgment and order. First Appeal No.205 of 2006 takes an exception to the judgment and order dated 23rd December, 2005 passed by the learned Civil Judge, Senior Division, Malegaon, on an application for grant of probate made by the first Respondent through the alleged guardian Mrs. Sakhubai Popat Sagar. 2. One Sahebrao was the father of the girl by name Srushti. The name of the mother of the said girl was Ashabai. Both of them were working as the Primary Teachers in the schools run by the Zilla Parishad. The mother of the girl died on 22nd April, 1999 and the father of the girl died on 22nd August, 1999. On 30th June, 1998 both, the father and the mother of the girl executed a joint registered Will in respect of the properties held by them. It is not in dispute that the said Srushti suffers from moderate mental retardation. The said Sakhubai happens to be the real sister of Srushti’s father. The Application of Probate was made by the said Sakhubai claiming to be the guardian of the said Srushti. In the application, the Letters of Administration/Probate was prayed for in respect of the said Will dated 30th June, 1998. ash 3 fa-205.06n1930.05 3. To the said Application, the present Appellant and others were made the parties. The said Petition was contested by the Appellant in First Appeal No.205 of 2006 by the name Anna Vedu Salunkhe. The said Anna is the younger brother of the deceased father of Srushti. In the reply, it was contended by him that both the parents were not in a proper frame of mind due to sickness. It was contended that the girl Srushti suffers from moderate mental retardation. It was contended that Sakhubai with the help of her husband got the Will signed from the parents of Srushti. It is contended that the said Anna along with his family members has been looking after the said Srushti. An Application for appointment of the guardian has been already made by him. The parties adduced evidence and by the impugned judgment and order, the learned Trial Court purported to grant probate. 4. The said Sakhubai filed an Application under Section 25 of the Guardians and Wards Act, 1890 against the said Anna seeking custody of the girl Srushti. By the judgment and order dated 27th July, 2005, the learned Additional District Judge, Malegaon, rejected the said Application. Being aggrieved by the said judgment and order, the First Appeal No.1930 of 2005 has been preferred by the said Sakhubai. 5. Before dealing with the submissions made by the learned counsel appearing for the parties, it will be necessary to make a ash 4 fa-205.06n1930.05 reference to the orders passed by this Court in the present Appeals. The Appeals were admitted by passing the order dated 11th August, 2006. At that time, the said Shrushti was a minor being born on 27th March, 1991. A detailed order was passed by this Court on that date. Paragraphs 1 to 7 of the said order read thus:- “1. First Appeal No.205 of 2006 arises out of an Application for probate filed by one Sakhubai Popat Sagar. The said Application for probate is filed on behalf of a minor Shrushti Sahebrao Salunkhe. The minor is the daughter of Ashabai and Sahebrao. Ashabai died on 24th April, 1999 and Sahebrao died on 22nd August, 1999. The case made out in the Probate Application is that on 30th June, 1998 the said Ashabai and Sahebrao had executed a joint registered Will in respect of the properties held by them. By the said Will, a bequest of all their properties was made in favour of minor daughter Shrushti. Under the Will the said Sakhubai was appointed as the guardian of the minor child. The minor is born on 27th March, 1991. The Appellant in First appeal No.205 of 2006 Anna Vedu Salunkhe is having the custody of the minor child at present. The said Sakhubai is the real sister of the deceased father of the minor child. As far as custody is concerned, there is no dispute between the parties that from the death of her parents, the minor girl is in the custody of the said Anna and his wife. 2. The Will makes a very peculiar provision. The Will records that the said Sakhubai has agreed that her son Jitendra will marry with the minor and the Will accordingly records that their marriage will be performed. Out of the property which is the subject matter of the Will, it is not in dispute that a sum of Rs.55,000/- has been realised by Sakhubai under the policies of ash 5 fa-205.06n1930.05 the Life Insurance Corporation held by the deceased parents. 3. It is also not in dispute that the minor child suffers from moderate mental retardation. By the order impugned in the First Appeal No.205 of 2006 probate has been granted in the name of the minor through her legal guardian Sakhubai. The said Sakhubai filed an Application under the Guardians and Wards Act for the custody of the minor child. The said Application has been rejected by order dated 27th July, 2005. The said Sakhubai has preferred First Appeal No.1930 of 2005. 4. The contention of the learned Advocate appearing for the Sakhubai is that both the orders are inconsistent. It is submitted that on one hand the court has appointed Sakhubai as the legal guardian of the minor child as per the provisions of the Will and on the other hand her Application for custody of the minor child has been rejected. 5. After hearing the submissions of the Advocates appearing for the parties, on 27th July, 2006, I directed that matter should be kept in chamber and parties shall remain present. When the parties remained present in the chamber on 08th August, 2006 the learned Advocate appearing on behalf of Sakhubai stated that her son was willing to marry with the minor. The said aspect cannot be gone into for more than one reason. Firstly, the son as well as the minor daughter are not at all of marriageable age and secondly there is a prima facie evidence on record to show that the minor child is suffering from moderate mental retardation. The learned Advocate appearing for the said Anna stated that all along he has been looking after the minor child. The learned Advocate further stated that he is willing to pay for medical treatment of the minor. At present the minor is in a boarding school and necessary fees are being paid by the said Anna and he has shown willingness to do so till the custody of the minor ash 6 fa-205.06n1930.05 child is kept with him. 6. So far as First Appeal No. 1930 of 2005 is concerned, the finding of the court is that the minor child is in the custody and care of the said Anna for last about 8 to 9 years and that he has been taking proper care of the minor child. He has secured admission of the minor child to a residential school for mentally retarded children at Malegaon, Taluka Malegaon, District Nasik. 7. After the minor child attains majority, other issues regarding the status of the child will have to be considered. Even after attaining majority if she continues to suffer from psychological disorder, the provisions of the Mental Health Act, 1987 will have to be examined. Therefore, the Appeals will have to be admitted and kept pending in this Court by continuing the custody of the minor child with the said Anna Salunkhe. The said Sakhubai has withdrawn a sum of Rs. 55,000/- payable under the policies of Life Insurance Corporation of India. The learned Advocate appearing for the said Sakhubai stated that the amount has been kept in fixed deposit. The said amount will have to be brought before this court and the same will have to be invested which can be utilised for the benefit of minor, if in future need arises.” 6. This Court proceeded to admit the Appeals. In Civil Application No.574 of 2006 in First Appeal No.205 of 2006, a prayer was made for stay. By the impugned order granting probate, the said Sakhubai was allowed to act as the guardian of the said Shrushti. On 11th August, 2006, this Court passed an ad-interim order. A sum of Rs. 55,000/- withdrawn by the said Sakhubai was ordered to be deposited in the Court. Accordingly the said amount has been deposited which ash 7 fa-205.06n1930.05 has been invested in a fixed deposit. By the said order, that part of the impugned order by which Sakhubai was allowed to act as the guardian was stayed till further orders. It will be necessary to make a note of the order passed by this Court in the said Civil Application made by the said Anna (Appellant in First Appeal No.205 of 2006). Paragraphs 3 to 5 of the said order passed on the Civil Application read thus:- “3. It is made clear that it will be the responsibility of the Applicant to maintain the properties in respect of which bequest has been made in favour of the minor child. He will not alienate, transfer or part with possession of the said properties in favour of the third party. 4. It is clarified that till further orders custody of the minor child will be with the Applicant- Anna. The minor child will continue to take education in the residential school for mentally retarded children at Malegaon, Taluka Malegaon, District Nasik and her admission to the said school should not be cancelled without permission of this court. 5. However the Applicant will have to provide access to the said Sakhubai to meet the child. The access will be given at the house of Shri Hiraman Avchit Wagh residing at village Zadi, Taluka Malegaon, District Nasik. The Applicant will bring the child to the house of Shri Hiraman Wagh on every first and third Sunday in the morning at 10.00 a.m. Subject to permission being granted by the residential school. The said Sakhubai will be permitted to meet the minor child at the said place for period of one and half hours.” ash 8 fa-205.06n1930.05 7. At that stage, Shrushti was taking education in a residential school for mentally retarded children. It appears that an allegation was made by the said Anna that the said Sakhubai had withdrawn amount payable towards superannuation benefit of the deceased parents of Shrushti. The said amount of Rs.5,97,925/- has been deposited in this Court by the said Sakhubai which has been invested. 8. The Civil Application No.1294 of 2010 was filed in First Appeal No.205 of 2006 by the said Sakhubai. By the said Civil Application, Sakhubai pointed out that a Sale Deed dated 11th June, 2007 was executed by the said Anna in his capacity as the guardian of Shrushti by which the land bearing Gat No.99/1, admeasuring 41 Ares at village Sawkarwadi, Taluka – Malegaon, District – Nasik was sold to a third party. It was pointed out that the said Shrushti has an undivided share in the said land. 9. The Appeals came up before this Court on 15th April, 2011 and 29th April, 2011. When the said Appeals were kept in chamber, at that time, apart from the parties, the girl Shrushti was also present. The said order records that Shrushti was no longer in the Boarding School and she was residing with the family of the said Anna. The ash 9 fa-205.06n1930.05 parties admitted that Shrushti was suffering from moderate mental retardation. When Shrushti appeared in chamber, it became apparent even to this Court that she was suffering from mental retardation. Considering her status and considering the fact that her age was 19 years, this Court expressed a view that she should be kept in a residential institution established to take care of mentally retarded persons. On the suggestion by the said Anna, this Court directed that Shrushti should be admitted to the residential institution by the name “Adhar” in Thakurwadi, District -Thane. A report was received from the Secretary of the Thane District Legal Services Authority stating that the institution “Adhar” could not admit Shrushti as there were no vacancies. Thus, Shrushti continued to be in the custody of Anna. 10. There is a further affidavit filed on 15th July, 2011 by the said Anna. He has stated that he approached the institution known as “Probodhini Vidya Mandir” at Sharanpur Road, Nasik. He stated that the said institution is having hostel at Ambad, Nasik and that the transport facilities are made available for travelling of the students from the hostel to the school premises. It appears that at the instance of the said Probodhini Vidya Mandir, the said Shrushti was sent for medical examination to the Civil Hospital, Nasik. A medical certificate dated 6th July, 2011 issued by the District Civil Surgeon in his capacity as the President of Medical Board has been annexed. The certificate has been ash 10 fa-205.06n1930.05 also signed by the Clinical Member and a Specialist in Psychiatry who were the members of the Board. The medical certificate records that Shrushti was suffering from moderate mental retardation and her IQ was 35 to 40. Her disability was assessed at 75%. So, at present Shrushti is residing in the hostel of the said Prabodhini Vidya Mandir. 11. It must be stated here that initially after filing of the appeals, there was a serious contest. However, from April, 2011 I noticed that the parties seem to have taken a reasonable stand after Shrushti attained majority. 12. The First Appeal No.1930 of 2005 takes an exception to the order passed on the Application made by Sakhubai claiming custody of the girl Shrushti. The Application was made under the provisions of the Guardian and Wards Act, 1980. Now, the girl has attained majority. Therefore, the said Appeal will not survive. However, something will have to be said about the issue of guardianship in First Appeal No.205 of 2006 filed by the said Anna. The main objection seems to be that the Application for Probate made by Sakhubai in her capacity as the guardian of Shrushti was not maintainable. The second contention is that the parents of Shrushti were not in disposable state of mind. They made the alleged Will when both of them were suffering from AIDS. The third contention is that the Will affects the ash 11 fa-205.06n1930.05 ancestral property in which the father of Srushti had only an undivided share. 13. As pointed out in the earlier part of the judgment, the girl suffers from moderate mental retardation. Therefore, somebody will have to take care of the minor. As of today, the minor is already in a residential institution of Probodhini Vidya Mandir. The report submitted by Psychologist of Prabodhini Vidya Mandir in July 2011 has been annexed to the affidavit of Shri Anna which shows that the girl is not able to look after herself even in her day to day affairs and she requires assistance. There are provisions under the Mental Health Act, 1987 ( hereinafter referred to as “the said Act of 1987”) for appointing guardian of a mentally ill person. However, it will be necessary to note the definition of ‘mentally ill person in Clause (l) of Section 2 of the said Act of 1987 which reads thus:- “(l) “mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation.” 14. Thus, a person who suffers from mental retardation is not included in the definition of a mentally ill person and hence the provisions of the said Act of 1987 are not applicable in the present case. ash 12 fa-205.06n1930.05 15. However, a note will have to be taken of the another enactment by the name “the National Trust for Welfare of Person with Austism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 ( hereinafter referred to as “the said Act of 1999”). The said Act of 1999 received an assent of the President on 30th December, 1999 and was published in the gazette of India dated 30th December, 1999. The preamble of the said Act of 1999 reads thus:- “An Act to provide for the constitution of a body at the national level for the Welfare of Persons with Austism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and for matters connected therewith or incidental thereto.” 16. Clause (g) of Section 2 of the said Act of 1999 defines mental retardation which reads as under :- “(g) “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub- normality of intelligence.” 17. Section 3 provides for constitution of the National Trust for Welfare of Persons with Austism, Cerebral Palsy, Mental Retardation and Multiple Disabilities. Section 13 of the said Act of 1999 provides that the Board which is defined to mean the Board of Trustees of the National Trust constituted under Section 3 of the said Act of 1999 shall constitute local level committees. It will be necessary to make a ash 13 fa-205.06n1930.05 reference to the provisions of Chapter VI of the said Act of 1999. 13. Constitution of local level committees..– (1) The Board shall constitute a local level committee for such areas as may be specified by it from time to time. (2) A local level committee shall consist of- (a) an officer of the civil service of the Union or of the State, not below the rank of a District Magistrate or a District Commissioner of a district ; (b) a representative of a registered organisation; and (c) a person with disability as defined in clause (t) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996). (3) A local level committee shall continue to work for a period of three years from the date of its constitution or till such time it is reconstituted by the Board. (4) A local level committee shall meet at least once in every three months or at such interval as may be necessary. 14. Appointment of guardianship.– (1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability. (2) Any registered organisation may make an application in the prescribed form to the Local Level Committee for appointment of a guardian for a person with disability. Provided that no such application shall be entertained by the local level committee, unless the ash 14 fa-205.06n1930.05 consent of the guardian of the disabled person is also obtained. (3) While considering the application for appointment of a guardian, the local level committee shall consider– (a) whether the person with disability needs a guardian; (b) the purposes for which the guardianship is required for person with disability. (4) The local level committee shall receive, process and decide applications received under sub-sections (1) and (2), in such manner as may be determined by regulations: Provided that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligations which are to be fulfilled by the guardian. (5) The local level committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations. 15. Duties of guardian. – Every person appointed as a guardian of a person with disability under this Chapter shall, wherever required, either have the care of such persons of disability and his property or be responsible for the maintenance of the person with disability. 16. Guardian to furnish inventory and annual accounts – (1) Every person appointed as a guardian under section 14 shall, within a period of six months from the date of his appointment, deliver to the authority which appointed him, an inventory of immovable property belonging to the person with disability and all assets and other movable property ash 15 fa-205.06n1930.05 received on behalf of the person with disability, together with a statement of all claims due to and all debts and liabilities due by such person with disability. (2) Every guardian shall also furnish to the said appointing authority within a period of three months at the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him. 17. Removal of guardian– (1) Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is– (a) abusing or neglecting a person with disability; or (b) misappropriating or neglecting the property. It may in accordance with the prescribed procedure apply to the committee for the removal of such guardian. (2) Upon receiving such application the committee may, if it is satisfied that there is a ground for removal and for reasons to be recorded in writing, remove such guardian and appoint a new guardian in his place or if such a guardian is not available make such other arrangements as may be necessary for the care and protection of person with disability. (3) Any person removed under sub-section (2) shall be bound to deliver the charge of all property of the person with disability to the new guardian, and to account for all moneys received or disbursed by him. Explanation – For the purposes of this Chapter, the expression "relative" includes any person related to the person with disability by blood, marriage or adoption. ash 16 fa-205.06n1930.05 18. Therefore, the parties to these Appeals or a registered organization will have to move under Section 14 of the said Act of 1999 for appointment of guardian and, therefore, I propose to issue necessary directions in that behalf. Therefore, the First Appeal No.1930 of 2005 will have to be disposed of with the aforesaid directions. 19. Now coming back to the First Appeal No.205 of 2006, reliance is placed on a joint Will dated 30th June, 1998 executed by Sahebrao and Ashabai. The joint Will makes a reference to the following properties : (a) 1/3rd undivided share of Sahebrao in Gram Panchayat House No.129 at village Sawkarwadi, Taluka-Malegaon, District- Nasik; (b) The land bearing Gat No.69, admeasuring 2 Hectares and 18 Ares out of which the area of 0.72 Ares in the share of Sahebrao with undivided share of Sahebrao in the Will; (c) LIC Policy No.967871542 in the sum of Rs. 10,000/-; ash 17 fa-205.06n1930.05 (d) LIC Policy No.968564238 in the sum of Rs. 25,000/-; (e) LIC Policy in the sum of Rs.10,000/- in the name of mother of the girl; (f) ½ plot standing in the name of the mother of the girl out of Plot No.26 Survey No.23/2B/1/2 at village Soyagaon, Taluka-Malegaon, District – Nasik; (g) Household like TV., cupboard, Tape Recorder, etc. in the rented premises on one Asaram Borade at village Babhulgaon, Taluka – Yeola, District – Nasik.