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Bombay High Court
Vahbiz Pervez Dumasia vs Niloufer Pervez Dumasia on 8 May, 2025
Author: Abhay Ahuja
Bench: Abhay Ahuja
2025:BHC-OS:8208
903-GP-8-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
GUARDIANSHIP PETITION NO.8 OF 2025
Vahbiz Pervez Dumasia & Niloufer Pervez Dumasia ...Petitioners
WITH
INTERIM APPLICATION NO.1768 OF 2025
IN
GUARDIANSHIP PETITION NO.8 OF 2025
Mr. Jahangir Jeejeebhoy with Ms. Nupur Desai i/b M/s Markand
Gandhi & Co. for the Petitioners.
CORAM : ABHAY AHUJA, J.
DATE : 8th MAY 2025
ORAL JUDGMENT:
1. When the matter is called out, Mr. Jeejeebhoy, learned Counsel
appearing for the Petitioners submits that the Interim Application No.
1768 of 2025 is wrongly on board as the same has been disposed of by
order dated 24th April, 2025.
2. Accordingly, remove the Interim Application No. 1768 of 2025
from the board.
3. Mr. Jeejeebhoy further submits that as permitted by this Court by
order dated 24th April, 2025, the Guardianship Petition has been
amended and that this Petition be treated as a Petition under Clause
XVII of the Letters Patent.
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4. I have heard Mr. Jeejeebhoy, learned Counsel for the Petitioners
at length.
5. But before proceeding further, I deem it apposite to set out
Clause XVII of the Letters Patent as under:-
“17. Jurisdiction as to infants and lunatics : And We do further ordain
that the said High Court of Judicature at Bombay shall have the like
power and authority with respect to the persons and estates of infants,
idiots and lunatics, within the Bombay Presidency, as that which was
vested in the said High Court immediately, before the publication of
these presents.”
6. As can be seen under Clause XVII of the Letters Patent, this Court
has power and authority with respect to the person and estate of
infants, idiots and lunatics within the Bombay presidency.
7. A Letters Patent is the Charter of the High Court ( Vinita M.
Khanolkar Vs. Pragna M. Pai and Ors 1, Sharda Devi Vs. State of Bihar2).
A Letters Patent is the specific law under which a High Court derives its
powers (Shah Babulal Khimji Vs Jayaben D. Kania and Anr. 3). It is not a
subordinate piece of legislation. Further, it is settled law that until and
unless a legislation specifically excludes the applicability of the Letters
1.AIR 1998 SC 424
2.AIR 2002 SC 1357
3.AIR 1981 SC 1786
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Patent, the Letters Patent is applicable i.e. it cannot be excluded by
implication. Special law will always prevail over general law. A Letters
Patent is a special law for the High Court and the Code of Civil
Procedure, 1908 in the general law. That in the event of conflict
between a special law and a general law, the special law will always
prevail.
8. An “idiot” as per the Black’s Law Dictionary as referred to in
clause XVII of the Letters Patent means a person who is afflicted with
profound mental retardation.
9. Under the Mental Health Act, 1987, which has since been
repealed, there was a specific provision under Section 53 of the said
Act empowering the District Court to appoint a legal guardian for a
mentally ill person. Section 53 of the said repealed Mental Health Act,
1987 reads as under:-
“53. Appointment of guardian of mentally ill person.-(1) Where the
mentally ill person is incapable of taking care of himself, the District
Court or, where a direction has been issued under sub-section (2) of
section 54, the Collector of the District, may appoint any suitable
person to be his guardian.
(2) In the discharge of his functions under sub-section (1), the
Collector shall be subject to the supervision and control of the State
Government or of any authority appointed by it in that behalf.”
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10. The Mental Health Act, 1987 was repealed and replaced by the
Mental Healthcare Act, 2017, which came into effect from 7 th July,
2018. Under the Mental Healthcare Act, 2017, there is no provision
available for appointment of a guardian of a mentally ill person, which
was very much available under the repealed Mental Health Act, 1987.
Though the National Trust for Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple Disabilities Act, 1999, under
Section 14 empowers the Local Level Committee to appoint a parent or
a relative as a legal guardian of a person with disability, the said
legislation has not curtailed the powers of this Court to appoint a legal
guardian for a mentally ill person exercising its powers under Clause
XVII of the Letters Patent.
11. “Disability is defined under Section 2(i) of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation), Act, 1995 to mean:-(i) blindness; (ii) low vision; (iii)
leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi)
mental retardation; (vii) mental illness.
12. Under the Mental Healthcare Act, 2017, “Mental illness” is
defined under Section 2(s) to mean a substantial disorder of thinking,
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mood, perception, orientation or memory that grossly impairs
judgment, behaviour, capacity to recognize realty or ability to meet the
ordinary demands of life, mental conditions associated with the abuse
of alcohol and drugs but does not include mental retardation.
13. Section 2(q) of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995
(the “Equal Opportunities Act”) defines mental illness to mean any
disorder other than mental retardation or a mentally disabled person.
14. An idiot as per the Black’s Law Dictionary as referred to in Clause
XVII of the Letters Patent means a person who is afflicted with
profound mental retardation. But that is not what we are concerned
with in the facts of this case.
15. In the facts of the present case as recorded earlier, Mr. Pervez
Dumasia, who was on the date of the Petition, 72 years old, in July,
2024 suffered from Hypoxis Ischemic Encephalopathy, a brain injury
resulting from deprivation of oxygen and blood supply during a cardiac
arrest. As a consequence, he has been in a semi-conscious and
incapacitated state and is bedridden and is suffering from long term
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neurological disability. Pervez is incapable of communication, cannot
take care of his basic personal needs and is undergoing treatment at
home at 701, Garden Court, 7th Floor, 39 Lallubhai Park Road, Opp.
Andheri Telephone Exchange, Andheri (W), Mumbai-400 058, which
has been converted into an Intensive Care Unit (ICU) and requires
constant care and assistance from nurses and attendants. It has also
been pointed out to this Court that the monthly expenses as set out in
the Petition are between Rs. 5,24,000/- to 5,54,000/- per month. I have
no reason to disbelieve the same.
16. The expert doctors and physicians had certified that Pervez is
unable to understand the nature, extent or probable consequences of
actions or take informed decisions nor is able to make a rational
evaluation of the burdens, risks and benefits of any decisions, while
being incapable of communicating as noted above. He is incapable of
taking care of his basic personal needs and in fact requires constant
care and attention in the performance of even simplest bodily
functions. Obviously, therefore, he is not capable of managing his assets
and properties.
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17. This is, therefore, definitely not a case of mental retardation.
Therefore, the condition suffered by Mr. Pervez Dumasia cannot be said
to be that of an idiot.
18. However, applying the above definitions to the condition suffered
by Mr. Pervez Dumasia, it can be said that his is a case of mental illness
although the same may have arisen as a result of a cardiac arrest.
19. Lunacy refers to unsoundness of mind sufficient to incapacitate a
person from civil transactions. It can also refer to a mental disorder as
described in the definition of mental illness. Mr. Pervez Dumasia
suffered Encephalopathy, which is a brain injury resulting from
deprivation of oxygen and as a consequence, he has been in a semi-
conscious and incapacitated state and is bedridden and is unable to
even take care of his basic personal needs requiring constant care and
attention even for the performance of simplest bodily functions,
although, the incapacity or inability to meet ordinary demands of life
has arisen as a result of cardiac arrest. The said disorder is a substantial
one with respect to thinking, perception, orientation as well as memory
which has impaired his judgment, behaviour, capacity to recognize
reality or ability to meet ordinary demands of life. This is certainly not
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mental retardation, but a case of mental illness, as also defined under
the Mental Health Care Act, 2017. Under the Equal Opportunities Act
also mental illness means any disorder other than mental retardation or
mentally disabled person. Such mental illness or disorder or disability
or incapacity, as discussed above, where the person is incapable of
taking care of himself or managing his property, can be said to be a
state of lunacy and by virtue of Clause XVII of the Letters Patent this
Court would have authority and jurisdiction with respect to the person
and the estate of such a lunatic within Bombay Presidency.
20. Mr. Jeejeebhoy has submitted that in the above circumstances,
this Petition has been filed by Pervez’s two daughters, who have taken
upon themselves the moral, ethical and financial duty to look after and
care for their father including managing his assets, properties and
finances in a fair, transparent and proper manner.
21. As also recorded earlier, Mr. Jeejeebhoy has also drawn this
Court’s attention to a consent affidavit at Exhibit A to the Petition
where Pervez’s wife Zenobia and the Petitioners’ mother being of
advanced age has consented to the appointment of the Petitioners as
guardians of Pervez’s person and managers of his properties, submitting
that she is of advanced age and it is not feasible for her to
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independently manage the extensive medical treatment, continuous
care of Pervez’s person and the affairs concerning his assets, properties
and finances.
22. Mr. Jeejeebhoy, learned Counsel for the Petitioners has also
drawn this Court’s attention to Exhibit-H to the Petition with respect to
the movable and immovable properties and assets owned by Pervez.
Learned Counsel has submitted that Pervez also holds interests in
partnership / LLP firms and private limited company. That the said
firms are actively engaged in architectural consultation and real estate
development and Pervez ‘s share in the firms constitute a valuable and
essential component of his estate.
23. It has been submitted that there is no other guardian or manager
appointed in respect of Pervez’s person or property nor is there any
other person capable of being appointed as such, except the Petitioners
as the two of them are his daughters residing with him and the mother,
who is also present in court has given her consent as she is also of
advanced age.
24. Mr. Jeejeebhoy would submit that, therefore, this Court appoint
the Petitioners as guardians of the person and managers of all the
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properties of Pervez and to declare that they are authorised to do all
acts, deeds and things necessary for the proper medical treatment,
nursing care, welfare and benefit of the person of Pervez and also be
authorised to take decisions in accordance with prayer Clause (c).
25. Mr. Jeejeebhoy submits that the Petitioners would apply the
assets and properties owned by Pervez towards his ongoing and future
medical expenses to ensure his well-being and that an undertaking to
that effect has been furnished to this Court by the Petitioners and also
that the undertaking to submit statements of accounts to the
Prothonotary and Senior Master of this Court setting out the details of
the expenses incurred and income received, be on a half yearly basis
instead of quarterly basis as directed at the time of the interim order.
26. Mr. Jeejeebhoy has submitted that, therefore, this Court appoint
the Petitioners as guardians in terms of prayer Clauses 36(a) to (c).
27. On 23rd January, 2025, after hearing Mr. Jeejeebhoy, learned
Counsel for the Petitioners and after considering the submissions made
by him and considering the urgent need to meet Petitioners’ costs and
expenses of specialized care and medical treatment, this Court had
granted interim reliefs until further orders as under:-
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“Accordingly, until further orders, in the interim, and subject
to furnishing undertaking as under, this Court appoints the
Petitioners as guardians of the person Pervez Nadir Dumasia
and managers of his assets and properties with powers to
(jointly and severally) do all acts, deeds and things necessary
for his proper medical treatment, nursing care, welfare and
benefit as well as to : (i) operate all bank accounts in the
name of Mr. Pervez Nadir Dumasia, whether singly or jointly,
(ii) invest the monies of Mr. Pervez Nadir Dumasia, (iii)
utilize the monies of Mr. Pervez Nadir Dumasia for his proper
upkeep and for fulfilling his needs and requirements, (iv)
represent Mr. Pervez Nadir Dumasia before all persons,
authorities, including civic bodies, (v) sign where required as
the guardian(s) of Mr. Pervez Nadir Dumasia, all deeds,
documents, cheques and instruments and (vi) to file
returns,etc, before the tax authorities.”
28. Since, this Court had expressed its apprehension about granting
the final reliefs sought for in this Petition on the basis that the Petition
was under the Guardians and Wards Act, 1890, which is an Act under
which a guardian can be appointed for the welfare of a minor alone
and that a minor would mean a person who under the provisions of the
Indian Majority Act, 1875, would be a person who has not attained the
age of majority, which is the beginning of the 18 th anniversary, Interim
Application No. 1768 of 2025 was filed to amend the Petition, so that
the Petition could be decided under Clause XVII of the Letters Patent,
which Clause XVII of the Letters Patent not only refers to infants but
also idiots and lunatics. Accordingly, pursuant to the order dated 24 th
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April, 2025, the Petition has been amended and therefore, this Court is
considering this Petition under Clause XVII of the Letters Patent.
29. I have already held that Pervez’s condition as described in the
Petition as well as above, is of mental illness, disorder, disability and
incapacity and a person in a state of lunacy who is incapable of taking
care of himself or managing his property, over whose person and estate,
this Court can exercise power and authority under Clause XVII of the
Letters Patent.
30. The higher Courts of our country exercise the parens patriae
jurisdiction as they cannot be mute spectators to a real life situations of
the nature before this Court. Since as noted above, Clause XVII of the
Letters Patent empowers this Court to exercise jurisdiction over
mentally incapacitated persons, in the absence of any statutory or
legislative bar and to fill up the vacuum, in the facts and circumstances
of this case, I am inclined to allow the Petition as prayed for.
31. My approach is fortified by decisions of two other Chartered High
Courts viz. the High Court of Madras as well as the High Court of
Calcutta.
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32. The Calcutta High Court in the case of Deepa Asani and
Another… Petitioners4 has while considering a similar Petition under
Clause XVII of the Letters Patent observed in paragraphs 5 to 8 as
under:-
” 5. Upon hearing learned Counsel and perusing The Mental Health
Act, 1987 which was repealed by The Mental Healthcare Act of 2017,
this Court is prima facie satisfied that the said enactments did not
contain any enabling provision for a family member to apply for
declaratory relief in respect of persons exhibiting behavioural patterns
which warrant protection.
6. The 2017 Act provides for the rights of persons who are being
treated in mental healthcare establishments and guidelines for the
functioning of these establishments. Clause 17 of the Letters Patent for
the High Court of Judicature at Fort William in Bengal, appears to be
the only answer in such cases where High the Court has the authority
to intervene in cases in relation to persons and estates of infants, idiots
and lunatics within the jurisdiction vested with the High Court. (Clause
17 is set out below:)
“Clause 17: Jurisdiction as to infants and lunatics – And we do
further ordain, that the said High Court of Judicature at Fort
William in Bengal shall have the like power and authority with
respect to the persons and estates of infants, idiots and lunatics
within the Bengal Division of the Presidency of Fort William as that
which was vested in the said High Court immediately before the
publication of these presents.”
7. Since the petitioner is the only legal heir of Deepa Asani, this
Court considers it fit to pass appropriate orders upon being satisfied,
prima facie, from the material on record that Deepa Asani is indeed in
a critical mental condition and requires sufficient protection from the
applicant who is her sole surviving legal heir.
8. It is relevant to trace the use of the word ‘Inquisition’ to The
Mental Health Act, 1987, under which an application for judicial
inquisition could be made by a class of persons for ascertaining the
mental condition of a mentally ill, who holds property, for a direction
for admission of that person in a psychiatric hospital. Clause 17 of The
4 2021 SCC OnLine Cal 2148
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Letters Patent evokes the power of the High Court as a guardian-
protector to preserve the rights of those who are disenfranchised – by
way of mental incapacity – to approach the courts. Barring the words
which are seen as inappropriate in the present times, it is a wonderfully
inclusive provision which empowers the High Court to take up the
cause of persons on the periphery of society.”
33. The Madras High Court also in the case of C. Raghuraman Vs.
Nil5 also relying upon the decision of the Calcutta High Court in the
case of Deepa Asani and Another… Petitioners (supra) has after
elaborately considering the law on the point albeit in the case of a
person who was mentally retarded and particularly with respect to the
jurisdiction of a Chartered High Court under Clause XVII of the Letters
Patent as in the case of an idiot, observed in paragraphs 12 to 23 as
under:-
“12. The Mental Health Act, 1987 was repealed and was
replaced by the Mental Healthcare Act, 2017 which came into
effect from 07.07.2018. As seen from the Mental Healthcare
Act, 2017, there is no provision available for appointment of a
guardian of a mentally ill person, which was very much
available under the repealed Mental Heealth Act, 1987.
Though the National Trust for Welfare of persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities
Act, 1999 under Section 14 empowers the Local Level
Committee to appoint a legal guardian for a mentally retarded
person, the said legislation has not curtailed the powers of this
Court to appoint a legal guardian for a mentally retarded
person exercising its powers under Clause 17 of the Letters
Patent. The decision rendered by a learned single Judge of this
Court in G. Nithyanandam v. Tmt. D. Saritha, (2013) 3 LW5 AIR 2022 Mad 118
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the Registry of this Court is in the context of a petition filed
under the Guardians and Wards Act and not under Clause 17
of the Letters Patent. The only reason for holding that the said
petition was not maintainable by the learned single Judge in
the reported decision of G. Nithyanandam‘s case referred to
supra was that under the Guardians and Wards Act, a person
cannot be appointed as a legal guardian for a mentally
retarded person. Therefore, I am of the considered view that
the reason for return of the Original Petition filed by this
petitioner under Clause 17 of the Letters Patent seeking for
appointment of a legal Guardian for a mentally retarded
person by the Registry is erroneous.
13. In similar circumstances, a learned single Judge of the Calcutta
High Court in the case of Kala Chand Chunder v. Fatehdin, AIR 1949
Cal 166 and in the case of Deepa Asani, 2021 SCC OnLine Cal
2148 : (AIROnline 2021 Cal 455) exercised powers under Clause 17
of the Letters Patent and appointed a legal guardian for a mentally
ill/lunatic person.
14. The relevant paragraphs of the aforesaid decisions of the
Calcutta High Court are extracted hereunder:
a) Kala Chand Chunder v. Fatehdin, AIR 1949 Cal 166.
14. Even if there be any doubt as to the powers of the District
Courts in the matter of making interim orders in pending lunacy
proceedings, I entertain no doubt whatever as to the powers of
this High Court to do so. This High Court has lunacy jurisdiction
under clause 17 of the Letters Patent of 1865. That clause confers
on this Court the like power and authority with respect to the
persons and estates of infants, idiots and lunatics within the
Bengal Division of the Presidency of Fort William as that which
was vested in the said High Court immediately before the
publication of these presents. This takes us back to the Letters
Patent of 1862 which was in force immediately before the
publication of the Letters Patent of 1865. Clause 16 of the Letters
Patent of 1862 ordained that the High Court should have the like
jurisdiction as to infants and lunatics as was then vested in the
Supreme Court. This provision takes us further back to the
Charter of 1774 establishing the Supreme Court at Fort William
in Bengal. Under clause 4 the Chief Justice and Judges of the
Supreme Court were given the same powers as the Judges of
King’s Bench, of England had and under clause 18 the Supreme
Court was constituted as a Court of Equity with “full power and
authority to administer justice in a summary manner, as nearly, as
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may, according to the rules and proceedings of our High Court of
Chancery in Great Britain.” Clause 25 of that Charter authorised
and empowered the Supreme Court “to appoint guardians and
keepers for infants, and their estates according to the order and
course observed in that part of Great Britain called England and
also guardians and keepers of the persons and estates of natural
fools or of such as are, or shall be deprived of their understanding
or reason by the act of God, so as to be unable to govern
themselves and their estates” and also authorised and
empowered mat Court “to inquire, hear and determine by
inspection of the person, or by such other ways and means by
which the truth may best be discovered and known.” From what I
have stated it follows that this High Court as the successor to the
Supreme Court has all, the powers, authority and jurisdiction of
the English Courts referred to above. There can be no doubt that
the English Courts frequently make interim orders in lunacy
proceedings before a person is actually found to be a lunatic on
inquisition. Reference may be made to Ex parte Whitfield [(1742)
2 ATK 315 : 26 E.R. 592.], In re: Pountain [[L.R.] 37 Ch.D. 609],
Seager Hunt [[1900] 2 Ch. 54.] and Re A.G. [(1909) 53 Sel J
615.]. The position is summarised in Theobald’s Law relating to
Lunacy at page 401 in the following words:
“In an urgent case an interim receiver may be appointed for
the protection of a lunatic’s property, upon sufficient medical
evidence, and without service or security. The order provides
for giving security as soon as possible and for notice of the
order to the lunatic with liberty to him to apply to discharge it
on short notice.
It is not necessary to refer to Rule 83 of the Rules of 1892
for power to appoint an interim receiver; it is part of the
inherent jurisdiction to protect the property of lunatics. The
powers conferred by the Act of 1908 are also sufficient to meet
the case. Interim orders have frequently been made; see, for
instance, Seager Hunt [[1900] 2 Ch. 54.].
These interim orders have also been recognised by the
Lords Justices. It was found that an elderly lady of weak mind
was living in her own house in a state of neglect, and it was
necessary, at once to have her properly cared for. The matter
being urgent, an interim receiver was appointed by the Master.
W., January 17, 1922.
When the receiver went to the house to carry out the order
he was refused admission by a person who had been allowed
to occupy the basement. Application was thereupon made to
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recognising in the clearest way the validity of the interim
order. W., Sterndale, M.R., Younger, L.J., 1st February, 1922.”
15. It has been argued that the provisions of the Letters Patent
are by clause 44 thereof made subject to the legislative powers of
the Indian Legislature. It is contended that the Indian Legislature
has, by the Lunacy Act, altered the law. Reference is made to
Section 2 of the Lunacy Act which provides that nothing
contained in Part II will affect the powers of the High Court. It is
urged that this section clearly shows that the other provisions
contained in other parts of the Act affect the powers of the High
Court. Part II provides for the reception, care and treatment of
lunatics and gives certain powers to certain persons or tribunal. It
was, therefore, necessary to make it clear that those provisions
did not affect the powers of the High Court over any person
found on inquisition to be a lunatic or over the property of such
lunatic. Part III, Ch. IV, however, deals with lunacy proceedings in
the High Court. In so far as express provisions have been made in
that part they are certainly intended to be binding on the High
Court and ex hypothesi there could be no occasion for preserving,
the powers of the High Court as against those provisions. But it is
quite a different thing to say that even in matters on which the
Act is silent the powers of the High Court must be deemed to
have been taken away. I readily agree that the provisions of the
Lunacy Act, in so far as they are expressly contrary to or
inconsistent with the powers of the High Court under its Letters
Patent, must prevail but I am not prepared to countenance the
contention that the Legislature has, by a side wind, taken away
the inherent powers of this Court, which, I consider, are
essentially necessary in the ends of justice. While sitting as a
Judge of this Court I for one shall not, in the absence of
unambiguous provision enacted by a competent legislative
authority, readily give up ancient and time-honoured powers,
authority and jurisdiction which this Court has inherited from the
Supreme Court. In my opinion, for the reasons mentioned above,
the order of September 3, 1945, was a valid order and Mr. B.P.
Chunder as the receiver and manager of the estate of Kala Chand
Chunder can legally convey the latter’s half share and pass a good
title to the purchaser. I, however, agree with Mr. Mukherjee that
the records of this suit should be suitably amended either by
substituting Mr. B.P. Chunder as such receiver and manager in the
place of Kala Chand Chunder or by describing Kala Chand
Chunder as a person who, though not adjudged to be a lunatic, is
by reason of unsoundness of mind or mental infirmity incapable
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of protecting his interests and suing by a next friend appointed
under Or. 32, R. 15 of the CPC. Even for the purposes of this
application such amendment is necessary. Mr. Banerjee agrees
that the register of this suit should be amended in the latter way.
Relying on the materials on which the order of April 25, 1945,
was made and the materials on which an order under Or. 32, R.
15 was made by me in another proceeding on September 3, 1945,
which related to the mental state of Kala Chand Chunder and all
of which are now filed of record of this Court I find that the
Plaintiff Kala Chand Chunder is by reason of unsoundness of
mind or mental infirmity incapable of protecting his interests and
acting under Or. 32, R. 15 of the CPC. I appoint Mr. B.P. Chunder
as the next friend of Kala Chand Chunder to continue this suit to
its termination and execute and register the conveyance on behalf
of Kala Chand Chunder. Let the register of this suit be amended
accordingly and let the sale be now completed.
b) Deepa Asani, 2021 SCC OnLine Cal 2148.
6. The 2017 Act provides for the rights of persons who are being
treated in mental healthcare establishments and guidelines for
the functioning of these establishments. Clause 17 of the Letters
Patent for the High Court of Judicature at Fort William in Bengal,
appears to be the only answer in such cases where High the Court
has the authority to intervene in cases in relation to persons and
estates of infants, idiots and lunatics within the jurisdiction
vested with the High Court. (Clause 17 is set out below:)
“Clause 17: Jurisdiction as to infants and lunatics-And we do
further ordain, that the said High Court of Judicature at Fort
William in Bengal shall have the like power and authority with
respect to the persons and estates of infants, idiots, and
lunatics within the Bengal Division of the Presidency of Fort
William as that which was vested in the said High Court
immediately before the publication of these presents.”
7. Since the petitioner is the only legal heir of Deepa Asani, this
Court considers it fit to pass appropriate orders upon being
satisfied, prima facie, from the material on record that Deepa
Asani is indeed in a critical mental condition and requires
sufficient protection from the applicant who is her sole surviving
legal heir.
8. It is relevant to trace the use of the word ‘Inquisition’ to the
Mental Health Act, 1987, under which an application for judicial
inquisition could be made by a class of persons for ascertaining
the mental condition of a mentally ill, who holds property, for a
direction for admission of that person in a psychiatric hospital.
Clause 17 of the Letters Patent evokes the power of the High
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Court as a guardian-protector to preserve the rights of those who
are disenfranchised – by way of mental incapacity to approach the
courts. Barring the words which are seen as inappropriate in the
present times, it is a wonderfully inclusive provision which
empowers the High Court to take up the cause of persons on the
periphery of society.
15. Infact, the decision rendered supra in Deepa Asani’s case, 2021
SCC OnLine Cal 2148, the learned Judge of the Calcutta High Court
has observed that there is a vaccum eversince the repeal of the
Mental Health Act, 1987 as there is no provision under the Mental
Healthcare Act, 2017 for appointment of a legal guardian for a
mentally retarded person. Whenever there is a Legislative vacuum
and there is utmost necessity as in the instant case, the Court will
have to fill up the lacuna by giving appropriate legal relief though
within the parameters of law. Since Clause 17 of Letters Patent
empowers this Court to exercise lunacy jurisdiction, the hands of
this Court are not tied to grant the relief as prayed for in this
petition. In a case of this nature, this Court cannot be a mute
spectator when there is no specific prohibition for the exercise of
power under Clause 17 of the Letters Patent. “Parens Patriae”
jurisdiction also empowers this Court to appoint a Legal guardian
for a Mentally retarded person when there is a legislative lacuna
and further there being no statutory bar.
16. The learned single Judge of the Calcutta High Court in the
aforesaid reported decisions have also exercised the power under
Clause 17 of the Letters Patent for the purpose of appointment of a
legal guardian for a lunatic.
17. Since idiot is a colloquial term for a person affected with mental
retardation, the term “idiot” found in Clause 17 of the Letters Patent
is applicable to a mentally retarded person also as in the instant
case. In future, Registry shall entertain petitions filed seeking to
appoint legal guardian for a mentally retarded person under Clause
17 of the Letters Patent. Infact, a learned single Judge of this Court
in S. Annapoorni’s case referred to supra had also exercised powers
under Clause 17 of the Letters Patent though it was a case where the
petitioner was residing outside the jurisdiction of this Court but that
case was in respect of a child custody matter. Though it was a child
custody matter, the logic behind the applicability of Clause 17 of the
Letters Patent by this Court was also followed in the said decision.
18. For the foregoing reasons, I am of the considered view that the
Registry ought not to have returned the Original Petition filed by
this petitioner but anyway since a direction was given by this Court
to the Registry to number this petition, they have numbered the
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same leaving the maintainability issue open. After numbering the
petition, this Court had also directed the petitioner to let in oral and
documentary evidence before the learned Master. Accordingly, the
petitioner has also let in oral and documentary evidence before the
learned Master which has been recorded.
19. Now coming to the merits of the petitioner’s request for
appointment of legal guardian for R. Balaji is concerned, this Court’s
discussion is as follows:–
20. The petitioner claims that both the parents of the mentally
retarded person R. Balaji, who was born on 13.11.1987 are no
more. The father of R. Balaji, K. Ravi died on 25.05.2021 and the
mother R. Meenakshi died on 12.04.2013. The petitioner is the first
cousin of the mentally retarded person R. Balaji. The father of the
petitioner died on 11.10.2020 and his mother is still alive.
According to the petitioner, eversince the death of K. Ravi, the father
of the mentally retarded person Balaji, he has been taking care of R.
Balaji. According to the petitioner R. Balaji, the mentally retarded
person is now admitted in the “Care and Care Clinic” at New No. 23,
East Avenue, Near UCO Bank, Korattur, Chennai. and the said clinic
is taking care of his day-to-day needs. According to the petitioner a
sum of Rs. 15,000/- is paid by the petitioner to the said Clinic as
special fees for this service for every three months. According to the
petitioner, the mentally retarded person R. Balaji has been suffering
from mental retardation which has been assessed at 60% by the
State Commissioner for disabled, Government of Tamil Nadu.
According to the petitioner excepting for him, there is no other
person amongst his kith and kin to take care of the mentally
retarded person R. Balaji. He has also pleaded that he is of sound
health and he is willing to act as a guardian for the mentally
retarded person R. Balaji till his life time. He has also given the list
of assets standing in name of the parents of the mentally retarded
person which has now been inherited by R. Balaji after their death
and he has also filed those documents along with the petition.
21. Before the learned Master, the petitioner was examined as a
witness (PW1). In his deposition, he has reiterated the contents of
the petition filed in support of O.R. No. 731 of 2021. Through PW1,
the following documents were marked as Exhibits:
(Tabular matter omitted…Ed.)
22. As seen from the evidence available on I record, it is clear
that excepting for the petitioner, there is no other person
amongst the kith and kin of the mentally retarded person to
support him. It is also evident that both the parents of the
mentally retarded person viz., R.Meenatchi and K. Ravi are no
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more as seen from their respective death certificates, which
have been marked as Exs.P5 and P8. The certificate given by
the State Commissioner for disabled, Government of Tamil
Nadu for the mentally retarded person R. Balaji dated
26.10.2005 has also been marked as Ex.P3, which confirms
that R. Balaji has been suffering from mental retardation which
has been assessed at 60%. The said certificate was issued based
on the medical report submitted by the Kilpauk Medical
College which is reflected in the said certificate. The father of
the petitioner Sellappan, who is the brother of the mentally
retarded person’s father (K. Ravi) is also no more as evident
from his Death Certificate which has been marked as Ex.P6
which reveals that he died on 11.10.2020. The Legal Heirship
certificate of K. Ravi, the father of the mentally retarded
person R. Balaji has also been marked as Ex.P9, which
confirms that the mentally retarded person R. Balaji is his only
Legal Heir. Being a mentally retarded person and that too
when both his parents are no more and he does not have any
siblings, this Court is of the considered view that the petitioner
who is the first Cousin of the mentally retarded person is an
apt person to be appointed as legal guardian. The details of the
assets standing in the name of the father of the mentally
retarded person viz., K. Ravi has also been marked as Exhibits
viz., Ex.P4, P10 and P11, The title deeds pertaining to the
property owned by the mother of the mentally retarded
R.Meenakshi has also been marked as Ex.P2. The petitioner
has sought for appointment of a legal guardian for the person
and property of the mentally retarded person R. Balaji. He has
also let in oral evidence reiterating the contents of the petition
filed in support of OP No. 731 and has undertaken to maintain
the mentally retarded person in his beneficial interest and
welfare. However being a mentally retarded person, this Court
is of the considered view that the petitioner will have to submit
regular accounts in respect of the assets owned by R. Balaji,
the mentally retarded person.
23. After giving due consideration to the pleadings and the
evidence available on record as well as after hearing the
submissions of the learned counsel for the petitioner, this Court
is inclined to grant the relief as prayed for and the petitioner is
appointed as a legal guardian for the mentally retarded person
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Mr. R. Balaji subject to the fullflilment of the following
conditions by the petitioner, which are as follows:–
(a) The guardian appointed by this Court shall disclose the
particulars of the properties both movable and immovable
owned by Mr. K. Ravi, the father and Mrs. R. Meenakshi, the
mother of the mentally retarded person R. Balaji, before the
Registry of this Court within a period of four weeks from the
date of receipt of a copy of this order.
(b) R. Balaji, the mentally retarded person shall be examined
by a Government Doctor and a report to that effect from the
said Government Doctor shall be filed before the Registry of
this Court every six months.
(c) The guardian appointed by this Court shall file a statement
before the Registry of this Court every six months, disclosing
the bank balances of Mr. R. Balaji, the mentally retarded
person with various banks/financial institutions.
(d) The guardian appointed by this Court shall render true
accounts of the funds belonging to Mr. R. Balaji, the mentally
retarded person and shall file a report before the Registry of
this Court every six months.
(e) If it is brought to the notice of any Court/any statutory
authority about misuse of funds belonging to Mr. R. Balaji, the
mentally retarded person, the said Court/authority is
empowered to cancel the guardianship after holding a proper
enquiry.
(f) The transactions in respect of the property of the mentally
retarded person by the guardian shall be strictly in accordance
with the relevant provisions of law.
(g) If the guardian appointed by this Court is found to be
abusing the power or neglects or acts contrary to the best
interest of Mr. R. Balaji, any relative or next friend may apply
to the appropriate Court for removal of such guardian.
Order accordingly.”
34. Considering that there are decisions of two other Chartered High
Courts and there is no decision of this Court under Clause XVII of the
Letters Patent, although the Petitions of this nature were being
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considered and allowed, this Court has deemed it appropriate to
elaborate on the law on the subject to fill up the vacuum for the benefit
of persons, who are mentally incapacitated.
35. In view of the above discussion, however, subject to continuing
the undertaking given to this Court at the time of the Interim Order
dated 23rd January, 2025, in terms of paragraph 21 of the said order,
except to the extent that statements undertaken to be given be given on
a six monthly basis, the Petition is allowed in terms of Clauses (a) to
(c), which read thus:-
“(a) That this Hon’ble Court be pleased to appoint the
Petitioners, acting jointly and/or severally, as the Guardians of
the person and the Managers of the properties of Pervez Nadir
Dumasia;
(b) That this Hon’ble Court be pleased to declare that as the
guardians of Pervez Nadir Dumasia, the Petitioners, acting
jointly and/or severally, are authorized to do all acts, deeds
and things for the proper medical treatment, nursing care,
welfare and benefit of Pervez Nadir Dumasia;
(c) That this Hon’ble Court be pleased to declare that as
Managers of Pervez Nadir Dumasia, the Petitioners, acting
jointly and/or severally, are authorised to take all such
decisions necessary and incidental for the welfare and benefit
of Pervez Nadir Dumasia, and maintenance of his property and
assets, including to deal with the properties set out at Exhibit
“H” and Exhibit “I” hereto, and to utilise the proceeds thereof
solely for the benefit and upkeep of Pervez Nadir Dumasia,
including the power to:
i) operate all bank accounts in the name of Pervez Nadir
Dumasia;
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ii) deal with shares, bonds, debentures and other securities in
the name of Pervez Nadir Dumasia;
iii) take possession and charge of all moveable and
immovable properties of Pervez Nadir Dumasia;
iv) manage, sell, transfer or otherwise deal with Pervez’s
properties;
v) invest the monies of Pervez Nadir Dumasia;
vi) utilize the monies of Pervez Nadir Dumasia for his proper
upkeep and for fulfilling his needs and requirements;
vii) represent Pervez Nadir Dumasia before all persons,
authorities, civic bodies;
viii) sign where required as the guardian(s) of Pervez Nadir
Dumasia;
ix) sign all deeds, documents, cheques and instruments as
guardian(s) of Pervez Nadir Dumasia; and
x) to file returns, etc, before the tax authorities.
xi) to sign all documents, deeds of the Partnership
firms/companies in which he has stakes as per Exhibit “I”
hereto and sign on his behalf all the documents, cheques, etc.
for the bank accounts associated with these companies.”
36. The Petition is accordingly allowed and stands disposed as above.
37. All to act on an authenticated copy of this order/judgment.
38. This Court appreciates the assistance rendered by Mr. Jeejeebhoy
in filling up the lacuna in this area of law and procedure for the benefit
of persons similarly placed as Mr. Pervez Dumasia.
(ABHAY AHUJA, J.)
Digitally
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signed by
NIKITA
NIKITA YOGESH
YOGESH GADGIL
GADGIL Date:
2025.05.20
16:49:07
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