MURTAZA NASIR Vs. NASIR AHMED WANI

JUDGEMENT

(1.) Impugned in this appeal is an order of District Judge Budgam dated 17-2-2005 passed in the inquisition proceedings initiated under Section 50 of the Mental Health Act, where under the learned Judge while modifying an earlier order of 5-2-2004, allowed release of part pension in favour of the mentally retarded person for the reason that same would be required for her maintenance etc. Ground pleaded is that the order has been passed mechanically and without providing opportunity of being heard to the appellant, and is totally uncalled-for in over all circumstances of the matter. During course of arguments, appellant's counsel has, besides reiterating the contents of appeal, argued that in circumstances of the case the impugned order was passed in total derogation to the facts and law attending the matter, in response whereto learned counsel for respondents 2 to 5 has contended that appellant has no genuine interest in the well being of the mentally retarded person and is only interested in her properties etc. Both the counsel have referred to other pending litigation between the parties.

(2.) I have heard learned counsel, gone through the records and considered the matter. It appears that on 31st of Jan. 2004, one Nazir Ahmed Wani, respondent No. 1 in the instant appeal instituted a petition under Mental Health Act for judicial inquisition in respect of one Wazira Begum, the mother of present appellant and respondents 2 to 5 and sought appointment of a manager for her properties on the ground that she was mentally unfit and thereby incapable of taking care of herself or her properties. This was objected to by respondents 2 to 5 mainly on the ground that said Wazira Begum was not mentally ill and thereby the petition could not be maintained, while first respondent, the appellant before this Court conceded the petition. On 5-2-2004, the matter came up before the learned trial Judge for consideration and while issuing notices to other side as also to Wazira Begum aforesaid, he directed maintenance of status-quo regarding all properties existing in the name of Wazira Begum, whereafter proceedings got stuck in the interlocutory applications filed by contestants without any tangible progress in the main petition. Under impugned order dated 17th of Feb. 2005, which along with the earlier order is to be deemed to have been passed under Sec. 65 of the Mental Health Act, learned trial Judge ordered the aforesaid modification, and hence this appeal.

(3.) Taken within purview of inquisition proceedings, in strict sense, the controversy is limited to the factum of the mental health of Wazira Begum and the consequently requisite action relating to her person and properties. But given the texture of pleadings and the litigative zeal of contesting parties, the conflict of their interest appears to overflow the contours of judicial inquisition relating to alleged mental retardation of Wazira Begum and touches their visible interest in her properties, which appears to have overlapped the inquisition proceedings with all the shades of conflict creeping therein causing inordinate delay in disposal thereof. However, apart from the ferocity of argumentation and multiplicity of proceedings pending elsewhere, the question involved in the present appeal, in simple terms, is whether the modification in the earlier order of 5-2-2004 ordered by learned trial Judge vide interim order dated 17-2-2005 was proper in given circumstances of the case. Plainly the answer has to be in affirmative, because in any case, the alleged mentally retarded person would naturally require some part of her pension for maintenance and in that much, the District Judge was right, even though he would perhaps have acted more correctly, had he devised a method to assure that part pension so released was not misused by any of the parties. The only aspect that appears to be an agitating factor is that the modification was ordered without notice to other parties who had already entered appearance by then which appears to be bad because the matter being contested to the hilt, any order having bearing on the subject matter modifying a previously accepted order should not have been passed without a proper hearing.