MAHIPATI Vs. MT. CHANGUNA

JUDGEMENT

(1.) 1. This is an appeal against the order of the District Judge of West Berar, in which he has recorded a finding under Section 65(2), Lunacy Act, 1912, that Mahipati is of so Unsound mind as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others. Under Section 38(1) the Court may upon application by order direct an inquisition whether a parson subject to the jurisdiction of the Court who is alleged to be a lunatic, is of unsound mind and incapable of managing himself and his affairs. As has been pointed out in Muhammad Yaqub v. Nazir Ahmad AIR 1920 All 80 and Saroj Basini Debi v. Mahendra Nath Bhaduri AIR 1927 Cal 636, an order directing an inquisition into a man's state of mind is a very serious thing and such an order is intended by the statutes to bo a judicial determination carefully made upon adequate materials. If the Judge considers that the case calls for an order directing an inquisition, then it is his obvious duty to record an order directing an inquisition and he may then proceed under Sections 40, 41 and 42, Lunacy Act. In the present case he does not appear to have considered whether the present case calls for an order directing an inquisition or not, and it is therefore at least doubtful whether the subsequent proceedings had any validity. As was remarked by Rankin, C.J., in the Calcutta case above cited, Now an order having been duly made directing an inquisition, the date having arrived and proper notices having been given, the inquisition itself proceeds The whole thing is bottomed upon the previous order directing an inquisition and if there is no such order, then, in my judgment, the officer purporting to hold the inquisition is not holding an inquisition at all. He is merely a worthy gentleman wasting his own time and other people's. The proceedings in such a case, so far as I can see, have no validity or effect.

(2.) I now turn to the case on the merits. "Lunatic" is defined in Section

(3.) THIS Act would not have been required if "defectives" fell within the definition of "lunatics," and it is clear from Section 16 of the Act which provides for transferring persons from institutions for defectives to institutions for lunatics and vice versa, that a "defective" is something different from a "lunatic," and that imbeciles and feeble minded persons, as defined in Section 1 of the Act, are not lunatics. The learned District Judge seems to be under the impression that a person who is not sufficiently intelligent to manage his own affairs must necessarily be of unsound mind. That is not so; under Section 65, Lunacy Act, there must be a finding that the alleged lunatic is (a) of unsound mind and (b) incapable of managing himself and his affairs. The law has been stated correctly, in my opinion, in George P. 0. Sherman v. Edwin Sherman Sohorn (1875) 24 WR 124 and cited with approval in Mazaharuddin Khan v. Serajuddin Khan (1906) 4 CLJ 115 as follows: It would appear therefore that unsoundness of mind taken by itself is not sufficient to bring a person within the term "lunatic," unless it would incapacitate him from managing his own affairs; nor, on the other hand, will a person who is incapable of managing his affairs be a lunatic, unless that incapacity is produced by unsoundness of mind.