UMA KUMARI v. AMBIKA SHARMA @ AMBIKA SINGH

It is in this settled background that one has to test the correctness of the impugned

7.3.2009. The appellant, the daughter of the respondent, had claimed in her application that she was the only issue and daughter of the respondent and was married to one Surendra Sharma on 15th January, 1981 and when her mother died on 6.7.1992 she was the one who was taken care of her father alongwith her husband and four children. It has been claimed that even after her husband left his own house and was living as a Gharjamai in the house of the respondent, the mental condition of her father had deteriorated to the extent hat he was not capable of looking after himself or his properties. It is under these facts that the appellant had prayed before the court below for passing an order judicial inquisition as in respect of her 7 own father, the respondent to this appeal. The court below in view of the mandatory provisions in section 50(2) had issued notice seeking personal appearance of the respondent vide an order dated 16.1.2008 whereafter the respondent had appeared and had deposed before the court on 17.6.2008 wherein he had stated that he was two brothers and his elder brother Kamta Singh had died due to cardiac failure and thereafter a partition had taken place between them in the year 1989 and the family members of both the brothers had come in possession of their respective share. He had further stated that he had only one daughter Uma Kumari, the appellant, who was a teacher but she did not look after him (respondent) and was only interested in getting his properties transferred in her favour by use of force with the help of her husband. He has further stated before the court that he had given full financial support to his daughter, the appellant, but even then he did not receive any care or comfort from her and in this context he had explained that he is mentally and physically fit to look after 8 himself and cultivate his land. He has also explained to the court that after retirement he was taking pension from Punjab National Bank and the allegation of his daughter that that he (respondent) of being mentally ill was not correct and in fact was a plea for only taking forceful possession of his properties. From the impugned order it also appears that the court had put specific questions to judge the mental fitness of the respondent and he had stated that he had retired on 27.1.1995 and was drawing his pension from Punjab National Bank and the daughter of one Dinesh Singh was living with him out of love and affection. It is with these clear observations made by the court itself that a finding was recorded that the respondent Ambika Sharma was a mentally fit person with no ailment much less capable of being held as mentally ill person as defined under section 2(l) of the Act. Counsel for the appellant in fact has not disputed the recording of statement of the respondent by the court or aforementioned statement made by him before the court but then he would submit that the 9 court had no power to make such an assessment unless it had appointed assessors in terms of section 50(4) of the Act. In this context counsel had placed reliance on a medical certificate dated 10.12.2005 issued by one Dr. Arun Kumar Agrawal, Neurosurgeon and Professor of Head of Department of Neurosurgery of Patna Medical College dated 10.12.2005 which only records that the respondent was suffering from physical and mental diseases and had lost is power of understanding and had been advised to take complete rest and use essential medicines. In the opinion of this Court neither aforementioned medical certificate nor lame plea of the daughter appellant describing her father to be mentally ill person by itself can be a proof of mental illness. The power under section 50 has to be exercised by the court and if the court after issuing notice and securing personal appearance recorded statement which has not been controverted by the appellant, it cannot be said that such person like the respondent can be held to be 10 mentally ill. In this context the following statement of the respondent recorded by the court including the court question would leave nothing for speculation that the respondent was a normal person and the allegation made against him of being mentally ill person thus incapable of looking after himself or his properties by the daughter appellant was itself incorrect. Such statement reads as follows: ^^1- eSa nks HkkbZ FkkA cM+k HkkbZ dk uke derk flag Fkk] og g‘n; Qsy gksus ls ej x;sA 1989 dks ge nksuksa HkkbZ ds chp caVokjk gks x;k vius vius r[r ij n[ky dCtk gSA 2- eq>s ,d yM+dh mek dqekjh gS tks e/; fo|ky; es a f’kf{kdk gSA og esjk lsok Vgy ughas djrh gSA og eq>s tcjnLrh pkgrh gS fd iqjh lEifr ns nhft;sA vkfFkZd :i ls eSaus viuh csVh dks cgqr lgk;rk fd;k gSA 3- eSa fcYdqy ekufld :i ls LoLF; gS] eSa iwqjh rjg viuh [ksrh dk ns[k Hkky djrk gwW] eSa vodk’k izkfIr djus ds ckn iatkc cSad ls isa’ku ysrk gwWA 4- esjh csVh dk ;g dguk xyr gS fd eS viuh lEifr dh ns[kHkky ugha dj ldrk gwW] eSa o‘}k gwW] blfy, [ksr ls vkenuh djrk gwW esjh csVh us xyr dsl fd;k gSA 11 Vw dksVZ% esa 1995 esa 29 tuojh dks lsok fuo‘r gqvkA esjk [kkrk ua0 vHkh ;kn ughs gS tgkukckn iatkc us’kuy cSad ls eSa isa’ku ysrk gwW] fnus’k ’kekZ dh cPph vHkh esjk lsok djrh gSA** This Court would find that the appellant has also challenged an earlier order dated 16.1.2008 in Misc. Appeal No. 119/2008 whereby and whereunder it had passed an order for personal examination of the respondent in terms of section 50(2) of the Act. As a matter of fact the said appeal had already been dismissed today on account of it becoming infructuous but then from the tenor of the impugned order in that appeal dated 16.1.2008 it would be clear that there was an opportunity to the appellant to be heard in the matter of alleged mental ailment of her father, the respondent, and if she did not purposely or knowingly avail that opportunity she today cannot complain with regard to the impugned order being passed without affording any opportunity of hearing to her. It is really unfortunate for this Court to find that an old father in stead of 12 being helped in his last days of his life by his daughter is being made to run around the corridor of the court by labeling him to be a mentally ill person. From the material on record this Court is satisfied that it was somehow dubious design of the daughter appellant to grab the property of her father that such a frivolous application was filed by her claiming judicial inquisition of her father. This Court would not like to say anything more but then it must be held that the application filed by the appellant under section 50 of the Act was a frivolous to the core and was rightly dismissed by the court below. That being so, this Court would not find any merit in this appeal and the same is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/