Back
2025 Supreme(Bom) 781
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GAURI GODSE, J.
Shivamma Shankar Wale - Appellant
Versus
Ramesh Virpakshappa Wale - Respondents
First Appeal No. 1272 of 2019
Decided on : 17-04-2025
Mr. I. M. Khairdi for the Appellant
Mr. Niranjan Shimpi for the Respondent
The court ruled that the respondent failed to prove the validity of allegations against the appellant regarding guardianship and property management, leading to the reinstatement of the guardianship order.
Headnote:
(A) Indian Lunacy Act, 1912 - Section 62 - Mental Health Act, 1987 - Sections 60 and 69 - Guardianship order cancellation - Appellant appointed as guardian in 1980; respondent sought cancellation alleging forged death certificate and property mismanagement - District Judge found appellant acted against Shivshankar's interest, leading to removal as guardian. (Paras 1, 5, 12, 34)
(B) Burden of proof - Under Sections 107 and 108 of the Evidence Act, the burden lies on the party alleging death to prove it, which the respondent failed to do. (Paras 30, 32)
Facts of the case:
The appellant was appointed guardian of her husband due to his insanity. After his death in 1990, the respondent alleged the appellant sold property using a forged death certificate. The District Judge ruled against the appellant, leading to this appeal.
Findings of Court:
The learned District Judge's findings were based on insufficient evidence and misinterpretation of the death certificate.
Issues: Whether the appellant's guardianship order should be canceled based on allegations of property mismanagement and the validity of the death certificate.
Ratio Decidendi: The court held that the respondent failed to prove that Shivshankar was alive or that the death certificate was forged, thus the cancellation of the guardianship order was not justified.
Result: Appeal allowed; the impugned order quashed and set aside.
JUDGMENT:
GAURI GODSE, J.
1. This first appeal is preferred by the original opponent to challenge the cancellation of the Order appointing her as a guardian of her husband under the Indian Lunacy Act, 1912 (“Lunacy Act”). By order dated 27th March 1980, the appellant’s Civil Miscellaneous Application No. 55 of 1977 filed under Section 62 of the Lunacy Act was allowed, and the appellant was appointed as guardian of her husband Shivshankar Wale (“Shivshankar”). The respondent filed an application under Section 65 of the Mental Health Act, 1987 (“the 1987 Act”) for cancelling the guardianship order issued in the appellant's name and prayed for directing the appellant to submit accounts of the properties of Shivshankar. Respondent’s application is allowed by the impugned order. The respondent is the son of Shivshankar’s brother.
Facts in brief:
2. The appellant is the wife of Shivshankar. Due to his insanity, he was unable to look after himself and his property. Hence, the appellant applied Section 62 of the Lunacy Act. Shivshankar’s mother and two brothers opposed the said application. After considering the objections raised to the appellant’s application, the application was allowed on 27th March 1980, and the appellant was appointed as guardian of the person and property of Shivshankar. Based on the guardianship order, the appellant filed a suit for partition and separate possession against Shivshankar’s mother and two brothers. The said suit was decreed, and Shivshankar was granted his one-third share.
3. Shivshankar’s mother and brothers had preferred an appeal challenging the partition decree. The appeal was dismissed, and the partition decree was confirmed. The decree was challenged in this court by filing Second Appeal No. 260 of 1989. In the meantime, Shivshankar expired in 1990. Hence, the appellants in the second appeal had filed an application to bring on record the names of Shivshankar’s wife and two daughters as heirs and legal representatives of Shivshankar. However, the said application was allowed to be withdrawn with a clarification that if information regarding Shivshankar was available, the appellants in the second appeal were granted liberty to file a fresh application. Inspite of the liberty granted, no such application was filed in the second appeal. Hence, the second appeal stood abated. Thus, by Order dated 16th January 2025, the second appeal is dismissed as abated.
4. During the pendency of the second appeal, the respondent filed an Application under Section 65 of the 1987 Act seeking cancellation of the guardianship order. The respondent alleged that by obtaining a forged death certificate of Shivshankar, the appellant and her daughters sold some of Shivshankar's property without the court’s permission. The appellant contested the application and denied all the allegations. She contended that Shivshankar expired on 4th May 1990 and that the allegations against the appellant were false and baseless.
5. The learned District Judge held that Shivshankar was alive and that the appellant did not obtain permission to dispose of Shivshankar's property. Hence, according to the learned District Judge, in view of the provisions of Section 60 of the 1987 Act, it was the bounden duty of the appellant to furnish inventory and annual accounts of Shivshankar’s property. By referring to the documentary and oral evidence led by the respondent, the learned Judge concluded that the appellant had not acted in the interest of Shivshankar. Hence, the learned District Judge held that in view of sub-section (1) of Section 69 of the 1987 Act, the appellant was liable to be removed as guardian of Shivshankar. Thus, the learned District Judge set aside the guardianship order issued on 27th March 1980, appointing the appellant as Shivshankar’s guardian. By the impugned order, the appellant is directed to furnish accounts of Shivshankar’s property. Being aggrieved by this judgment, Shivshankar’s wife has preferred this first appeal.
Submiss
