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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.K. TATED, J.
Dynacraft Machine Co. Ltd. - Appellant
Versus
Vinod Shenoy - Respondent
First Appeal No. 366 of 2017
Decided On : 19-11-2019
Constitution of India, 1950 - Article 227 - Mental Health Act, 1987 - Sections 50, 51, 52, 53, 54, 55, 56, 57, 59, 61, 65, 69 and 76 - Specific Relief Act - Section 31 - Companies Act, 1956 - Section 457 - Guardian Of A Mentally Ill Person - Petitioner states that has soon thereafter shown signs of mental incapacity diagnosed as impaired cognitive functioning with significant impairment in memory and executive functioning indicating neuro-degeneration of brain suggestive of disease known as advanced dementia most like disease - Petitioner states that disease was treated initially by general physicians and thereafter by consulting psychiatrist and neurologist who referred to clinical neuro psychologist - Petitioner states that also referred case to group of hospitals where she is undergoing medical examination - Hereto annexed and marked is copy of neuropsychology report by clinical neuropsychologist - Petitioner states that as a result of said mental condition she has done such acts which run contrary to her own interest apart from filing absurd complaints against various persons including building society office bearers where she resides a case in point is a letter addressed to chairman of society by said making in cohesive charges against him a copy whereof is annexed hereto and marked petitioner craves leave to refer to and rely upon such other documents as and when produced - Held, No person who is legal heir of a mentally ill person shall be appointed to be guardian of such mentally ill person or as case may be manager of his property unless district court or as case may be collector for reasons to be recorded in writing considers that such appointment is for benefit of mentally ill person - Guardian of a mentally ill person or manager of his property or both appointed shall be paid from out of property of mentally ill person such allowance as appointing authority may determine - If court comes to conclusion that legal heir is required to be appointed as a guardian in that case district court or as case may be collector has to give reasons in writing - Bare reading of impugned order clearly shows that trial court has failed to consider at time of passing impugned order - On this ground also said order is liable to be set aside - It is to be noted that even high court has specifically held that if procedure as required is not followed then order is liable to be set aside - Authorities cited by advocate for respondent in matter of collector of collector land acquisition are not applicable in facts and circumstances of present case - Appeal is allowed.
JUDGMENT :
1. Heard. By consent of both the parties and as per order dated 12.07.2019, the matter is taken on board for final hearing. The Registry has called R & P, which is duly received.
2. By this First Appeal the Appellant is challenging the oral order dated 10.04.2015 passed by the Bombay City Civil Court at Mumbai in Mental Health Petition No.4/2015 (hereinafter referred to as the "said petition") in the matter of appointment of guardian u/s.53 of the Mental Health Act 1987 (hereinafter referred to as the said Act) allowing the application filed by the Respondent - original Petitioner and appointed him as a guardian of Ms. Jessica Iqbal Lukmani (Jessica Shenoy) (hereinafter referred to as Ms. Jessica) to take care of her, under the provisions of the said Act.
3. The First Appeal is filed by the Appellant - third party being aggrieved by the impugned order dated 10.04.2015.
4. The Appellant had filed Civil Application No.1042/2017 for leave to appeal against the impugned order which was allowed by this court by order dated 13.04.2017.
5. The Appellant had also filed Civil Application No.1297/2017 for an order of stay to the effect, operation and implementation of the impugned order which was allowed by this court by order dated 13.04.2017 part of which reads thus:
"6. In the premises, the civil application is allowed in terms of prayer clause (c), subject to the right of the Respondent to intervene and appear as a claimant or as a purported constituted attorney of Jessica Lukmani before the NCLT in the pending company petition, without prejudice to his right in the present appeal, or otherwise generally, that is to say, in all cases other than the pending company petition, to claim as a legal guardian of Jessica Lukmani. The civil application is disposed of in the above terms.
7. In the meantime, the parties, including NCLT, to act on the authenticated copy of this order. Needless to add that these observations made by the court are for the purpose of deciding the three civil applications and considering the admission of the first appeal and these observations shall not influence the NCLT whilst determining the company petition.
8. First Appeal (Stamp) No.9457/2017 shall be tagged along with First Appeal No.243/2017. The Appellant to remove all office objections and get the first appeal numbered within two weeks from today.
9. Certified copy expedited."
Few facts of the matter are, as under:
6. The Respondent - son of Jessica Iqbal Lukmani, filed the petition for appointing him as a guardian of his mother u/s.53 of the said Act, before the Bombay City Civil Court at Mumbai on the ground that her mother, since 1995, was showing signs of mental incapacity diagnosed as impaired cognitive functioning indicating neuro-degeneration of the brain suggestive of the disease known as Advanced Dementia most like Alzheimer's disease. In support of this contention, the Respondent has placed on record before the Trial Court the certificate dated 23.02.2015 issued by the Grant Medical College and Sir J.J.Group of Hospitals, Mumbai. The Respondent also placed on record other documents. In support of his contention, the Respondent has specifically stated in the said petition, that it is necessary in the interest of justice to declare and appoint the Petitioner as a guardian in respect of the person and properties of Ms. Jessica. Some of the relevant paragraphs 3, 4, 5, 14, 21, 30 of the said petition are as under:
"3. The Petitioner states that Mrs. Jessica Lukmani (hereinafter for the sake of brevity be referred to as the said "Mother - Mrs. Jessica") has soon thereafter from the year 1995 shown signs of mental incapacity diagnosed as impaired cognitive functioning with significant impairment in memory and executive functioning indicating neuro-degeneration of the brain suggestive of the disease known as Advanced Dementia most like Alzheimer's d
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