IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 468 of 1980 Date of Decision : January 28, 2009 Gurdev Singh .....Appellant Versus Puran Singh and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Sukant Gupta, Advocate for the appellant. None for the respondents. T.P.S. MANN, J. Application filed by Puran Singh-respondent No. 1 under Section 46 of the Indian Lunacy Act, 1912 (for short ‘the Act’) for the appointment of Manager to the property of Chuhar Singh, a lunatic, was accepted by 1st Additional District Judge, Ferozepur vide judgement dated 26.4.1980 and Harbans Singh Sandhu, Advocate-respondent No. 3 was appointed as Manager of the estate of aforesaid Chuhar Singh, so as to collect and pay all just claims, debts and liabilities, due to or by the estate of the lunatic and not to mortgage, charge or transfer by sale, gift, exchange or otherwise the immovable property of the lunatic without permission of the Court nor to give such property on lease for more than F.A.O. No. 468 of 1980 -2- five years. The Manager was further called upon to deliver in the said Court, inventory of immovable property belonging to the lunatic and of all such money or other immovable property he might have received on account of the estate together with the statement of debts due by or to the same. The Manager was also required to furnish to the Court every year within three months of the close of the year an account of the property of the lunatic, exhibiting the sums received and disbursed by him on account of the estate and the balance remaining in his hands. The Manager was to receive 10% of the income from the estate of the lunatic as his commission. Aggrieved of the same, present appeal was filed by the appellant, brother of aforementioned Chuhar Singh, lunatic. In his application, Puran Singh-respondent No. 1 had alleged that Gurdev Singh-appellant was out to grab the property of Chuhar Singh, lunatic, and it would be in the interest of the lunatic if a Manager to his property was appointed by the Court. Surprisingly, Gurdev Singh- appellant was not impleaded as party-respondent in the said application. Only Chuhar Singh was made the sole respondent. Notice of the application was given to the respondent and the general public. Shri B.K. Sharma, Advocate was appointed as guardian of the lunatic to represent him in the case. No one, however, came forward from the public to contest the application despite publication in the press. Shri B.K. Sharma, Advocate, however, filed the reply. F.A.O. No. 468 of 1980 -3- The following issues were framed by the lower Court:- 1. Whether Chuhar Singh is a lunatic ? 2. Whether Chuhar Singh has earned disability necessitating for appointment of Manager of his estate ? 3. Relief. In support of his case, Puran Singh-respondent No. 1 examined AW1 Dr. Baldev Kishore, Medical Superintendent, Punjab Mental Hospital, Amritsar, AW3 Ruldu Singh, besides himself stepping into the witness-box as AW2. He also tendered in evidence, copy of the Jamabandi Ex. A1 and copy of Khasra Girdawari Ex. A2. However, no evidence was led by Shri B.K. Sharma, Advocate. After going through the testimony of Dr. Baldev Kishore AW1, lower Court held that Chuhar Singh was a lunatic, who was not capable of managing his estate. It was also proved that he owned landed property in village Chima, which was in possession of the appellant. As no one was spending anything on the treatment of the lunatic, therefore, it was apparent that the appellant was not looking after the maintenance and welfare of the lunatic. Accordingly, Shri Harbans Singh Sandhu, Advocate-respondent No. 3 was appointed as Manager of the estate of Chuhar Singh, lunatic. The appeal came up for preliminary hearing before this Court on 14.8.1980, when after hearing learned counsel for the appellant, the F.A.O. No. 468 of 1980 -4- Court admitted the appeal and granted ad interim stay of the impugned order. Puran Singh-respondent No.1 and Shri Harbans Singh Sandhu, Advocate-respondent No. 3 were duly served in the appeal. However, in view of the fact that Shri Harbans Singh Sandhu, Advocate already stood appointed as guardian of the lunatic for the purpose of managing his property, the Court vide order dated March 16, 1981 held that there was no need of appointing fresh guardian ad litem. On 31.1.2007, notice of hearing of the appeal was again sent to Shri Harbans Singh Sandhu, Advocate for April 25, 2007. As per the office report, Shri Harbans Singh Sandhu, Advocate had already expired. Under these circumstances, notice was issued to Incharge, Mental Hospital, Amritsar to apprise the Court about the latest whereabouts of Chuhar Singh, lunatic-respondent No. 2, who stood admitted in Mental Hospital, Amritsar in the year 1980. Vide letter dated 27.11.2007, Director, Institute of Mental Health (Government Mental Hospital), Amritsar informed the Court that Chuhar Singh was admitted in Mental Hospital, Amritsar on 19.1.1957 on the basis of reception orders issued by Magistrate 1st Class, Moga under the Act. The patient was taken on parole by Gurdev Singh (appellant) on 29.1.1981 and, thereafter, was never brought back to the hospital. On receiving the above report/letter, notice was issued to the appellant for 14.11.2008 for the reason that no one had put in appearance on his behalf. The appellant then filed an application under Section 151 CPC (C.M. No. 4894-CII of 2008) for F.A.O. No. 468 of 1980 -5- placing on record the affidavit of the appellant so as to bring to the notice of this Court certain facts which arose subsequent to the admission of the appeal. The said application was allowed on 14.11.2008. In his affidavit, the appellant stated that Chuhar Singh, lunatic-respondent No. 2 had died on 7.4.1988. In support of the said fact, the appellant placed on record the Death Certificate Annexure A.1. It was also stated that ever since his release from Institute of Mental Health, Amritsar on 29.1.1981, Chuhar Singh lived with the appellant till he passed away on 7.4.1988. Said Chuhar Singh was survived by his sister Karnail Kaur and brother Gurdev Singh-appellant. Even Karnail Kaur died in the year 2006, when she was aged about 85 years. It was further mentioned that Chuhar Singh left behind an unregistered Will dated 20.10.1986 bequeathing his property (including 1/3rd share of the property of his father Jaimal Singh that had fallen to his share) to his nephews, namely, Sarabjit Singh and Gurdip Singh, sons of the appellant. After the death of Chuhar Singh, his Will was produced before the Sub Divisional Magistrate at Zira. Both, Karnail Kaur and the appellant, sister and brother of Chuhar Singh–respondent No. 2, who were the only surviving natural heirs of Chuhar Singh, appeared before the Sub Divisional Magistrate and they made statements that they did not have any objection to the transfer of the property of Chuhar Singh in the names of his nephews in consonance with his Will. Accordingly, the share of Chuhar Singh, lunatic, in the property which he inherited from as his father was mutated in the names of his two nephews vide mutation No. 2389 dated 22.7.1988. In para 11 of the affidavit, it was mentioned F.A.O. No. 468 of 1980 -6- that even Puran Singh-respondent No. 1, at whose behest the proceedings under the Act began, had also died on 30.8.1994. Even if Puran Singh- respondent left behind any natural or legal heirs, the right to sue or to be sued did not survive to them in the facts and circumstances of the case. In fact, all the three respondents in the appeal have died during the pendency of the appeal. Learned counsel for the appellant submitted that Chuhar Singh, lunatic, was the real brother of the appellant. He was unmarried and of unsound mind. Therefore, he was got admitted in the Mental Hospital, Amritsar by his mother in the year 1957 and, at that time, the appellant was a minor, aged about 11 years. Said Chuhar Singh had remained in Mental Hospital since 1957, but during this period, the appellant had been visiting him there and also bringing him on parole periodically during his lucid intervals to the village and Chuhar Singh would stay with the appellant during the period of parole. It was also submitted that Puran Singh-respondent No. 1, who filed the application under Section 46 of the Act for appointment of the Manager of the estate of Chuhar Singh, lunatic, was not related to him nor he was interested in his welfare in any manner. Said Puran Singh was inimical towards the appellant and he filed the application out of sheer spite, and, that too, without impleading the appellant, who was real brother of Chuhar Singh lunatic, and, thus, no notice of the application was given to the appellant. Notice to Chuhar Singh, lunatic and also to the general public was served F.A.O. No. 468 of 1980 -7- through publication made in a paper ‘ Daily Chardikala ’ published from Patiala, which was not widely read in the area in which the appellant and Chuhar Singh, lunatic, resided and as such none of them, especially the appellant, had any notice of the application. Accordingly, it was prayed that the appeal be accepted, impugned order be set aside and the application filed for appointment of Manager to the estate of Chuhar Singh, lunatic, be set aside. A perusal of the application submitted by Puran Singh under Section 46 of the Act would reveal that according to him, it was the appellant, who was out to grab the property of Chuhar Singh lunatic. He did not mention anywhere that Gurdev Singh, who, according to him, was grabbing the property of Chuhar Singh, was none else than his real brother. Under these circumstances, Puran Singh was required to implead the appellant as a party so that the appellant could have explained to the Court that he had not been grabbing the property of his brother Chuhar Singh. Though, according to the trial Court, notice was issued to Chuhar Singh, a lunatic and the general public, which was duly published in the ‘Daily Chardikala’ published from Patiala, the parties in the application, besides the appellant, were residents of village Chima, Tehsil Zira, District Ferozepur. There is no material available on the file from which it could be inferred that aforementioned Daily was widely read in the area of the parties. Therefore, the appellant was handicapped in F.A.O. No. 468 of 1980 -8- appearing before the trial Court and to oppose the application of Puran Singh-respondent. It is the case of the appellant that Chuhar Singh, lunatic was unmarried and of unsound mind. In the year 1957, he was got admitted in Mental Hospital, Amritsar by his mother and at that time the appellant was a minor, aged about 11 years. Later on, it was the appellant, who had been visiting Chuhar Singh lunatic, in the Mental Hospital and as and when the latter had lucid intervals, used to be brought by the appellant on parole to the village where he would stay with the appellant. As is mentioned in the affidavit of the appellant, which has been taken on record vide order dated 14.11.2008, Chuhar Singh, lunatic has died on 7.4.1988. Puran Singh, who had filed the application before the lower Court, has also died on 30.8.1994. As Puran Singh-respondent had no personal interest in the estate of Chuhar Singh, lunatic, the right to sue or to be sued did not survive to any natural or legal heirs of said Puran Singh. Shri Harbans Singh Sandhu, Advocate-respondent No. 3, who was appointed as the Manager of the estate of Chuhar Singh, lunatic vide impugned order had also died, as was reported by the office, when notice was issued for serving him in the appeal. In paras 9 and 10 of the affidavit dated 10.3.2008, the appellant has also stated about the fact that after the death of Chuhar Singh, lunatic, his property stands transferred in the names of his nephews F.A.O. No. 468 of 1980 -9- in consonance with the Will dated 20.10.1986 and mutation No. 2389 dated 22.7.1988 stands sanctioned in that regard. Moreover, while admitting the appeal on 14.8.1980, a Division Bench of this Court granted ad interim stay of the impugned order. Therefore, for all intents and purposes, it was the appellant, who had been looking after the welfare of Chuhar Singh, lunatic as well as his estate till he finally expired on 7.4.1988. In view of the above, the impugned order passed by the Court below cannot be sustained. Resultantly, the appeal is accepted. Judgement passed by the 1st Additional District Judge, Ferozepur on 26.4.1980 is set aside and the application of Puran Singh-respondent under Section 46 of the Indian Lunacy Act, 1912, is dismissed. No costs. ( T.P.S. MANN ) January 28, 2008 JUDGE satish