Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 977

IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M. Singh, J.
Shyam Malik – Appellant
Versus
State & Ors. – Respondents
W.P.(C) 3607 of 2023 and CM APPL. 13964 of 2023
Decided On : 22-03-2023

Advocates appeared:
Ms. Stuti Gupta, and Ms. Kirti Mewar, Advocates, for the Petitioner.
Mr. Anupam Srivastava, ASC for GNCTD with Ms. Sarita Pandey, Advocate for R-1.

The legal vacuum created by the repeal of the Mental Health Act, 1987, and the absence of a prescribed procedure for appointing guardians under the Mental Healthcare Act, 2017 and RPWD-2016 influenced the court's decision.

Headnote:
Mental Health Act 1987 - Appointment of Guardian - Mental Healthcare Act 2017 - RPWD-2016 - Order XXXIIA CPC - [MENTAL HEALTH ACT 1987, MENTAL HEALTHCARE ACT 2017, RPWD-2016, ORDER XXXIIA CPC]
Fact of the Case:

The petitioner seeks permission to enter into a collaboration agreement and execute the same on behalf of his mentally incapacitated brother. The petitioner was appointed as the guardian and manager of his brother's properties under Sections 52 and 53 of the Mental Health Act, 1987. The petitioner is the owner of 4/5th share in the subject property, and his brother owns 1/5th share. The petitioner's application for execution of the collaboration agreement was rejected due to the repeal of the Mental Health Act, 1987.
Finding of the Court:

The court found that there is a legal vacuum in appointing guardians for the property of mentally ill persons due to the repeal of the Mental Health Act, 1987. The petitioner was permitted to execute the collaboration agreement and take steps to ensure the construction is completed, with the ground floor vested in his brother. The petitioner was also allowed to sell one floor of the newly constructed building, provided the ground floor is vested in his brother.
Issues: The issues revolved around the appointment of a guardian for the mentally incapacitated brother under the repealed Mental Health Act, 1987, and the legal vacuum created by the repeal in appointing guardians for mentally ill persons' property.
Ratio Decidendi: The court's decision was influenced by the legal vacuum created by the repeal of the Mental Health Act, 1987, and the absence of a prescribed procedure for appointing guardians under the Mental Healthcare Act, 2017 and RPWD-2016. The court emphasized the need to consider the 'wills and preferences' of the mentally ill person and the absence of guidance in the new legislations.
Final Decision: The petition was disposed of with the petitioner permitted to execute the collaboration agreement, ensure the construction is completed, and take steps for the rights of his brother. The petitioner was also allowed to sell one floor of the newly constructed building, provided the ground floor is vested in his brother.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The present petition has been filed by Mr. Shyam Malik, son of Late Mr. Roshan Lal Malik, who had four children, namely, the Petitioner - Mr. Shyam Malik, Mr. Deshbandhu Malik, Mrs. Vinod Sabharwal and Mrs. Kanchan Suri. The case of the Petitioner is that his father was the owner of the property bearing no. A- 319, measuring 217 sq. yds., situated at Defence Colony, New Delhi-110024 (hereinafter 'subject property'). Mr. Deshbandhu Malik, the brother of the Petitioner is stated to be mentally incapacitated and since his birth, he has various mental and physical disabilities.

3. The father of the Petitioner had passed away intestate on 24th October, 2007 leaving behind his wife - Late Mrs. Swaraj Kumari and his four children. The Petitioner was appointed as a guardian of his brother under Sections 52 and 53 of the Mental Health Act, 1987. The Petitioner has approached this Court in order to be able to enter into a collaboration agreement in respect of the subject property and execute the same on behalf of his brother.

4. Ld. counsel for the Petitioner submits that vide order dated 31st March, 2009, the Petitioner was appointed as the guardian and manager of the properties of Mr. Deshbandhu Malik in accordance with Section 52 and Section 53 of the Mental Health Act, 1987 by the ld. District Judge-III (West). The relevant extract of the said order reads as under:

"7. In view of the averments made in the petition and the testimony of the petitioner, it stands proved that Deshbandhu Malik is mentally challenged and cannot take care of himself and his property without the help of any other person. Petitioner is the brother of the mentally challenged Deshbandhu Malik. It can be safely held that the petitioner has no interest adverse to that of his brother. I find him to be a fit and suitable person to be appointed as a guardian of the person and the properties of the mentally challenged Deshbandhu Malik.

8. Accordingly, I allow the petition and appoint Sh. Shyam Malik as guardian of the person and Manager of the properties of the mentally challenged Deshbandhu Malik @ Billa. Necessary certificate be issued in favour of the petitioner on his furnishing necessary bond/undertaking."

5. Ld. Counsel for the Petitioner further submits that both the mother and the sisters of the Petitioner had executed a relinquishment deed on 8th January, 2008 in favour of the Petitioner. Thus, as on date, the Petitioner is the owner of 4/5th share in the subject property and the brother of the Petitioner is the owner of 1/5th share of the property. The Petitioner is also willing that his brother would be the owner of the ground floor of the property after construction of the property.

6. Ld. counsel appearing for the Respondent No.1 submits that if the other heirs have no objection, the State would have no objection in the Petitioner being permitted to be the guardian of the properties.

7. Mr. B. Kartik, Ld. counsel for the Respondent Nos.2 and 3 i.e., the sisters, submits that he represents the said Respondents and he would be filing his vakalatnama. He submits that the Respondent Nos. 2 and 3 who are the sisters of the Petitioner do not have any objection as they have already executed a relinquishment deed in favour of the Petitioner.

8. The Petitioner has approached this Court in view of the repeal of the Mental Health Act, 1987. An application was moved by the Petitioner before the ld. ADJ-07 South-East District seeking permission for execution of the collaboration agreement, under Section 59(2) of the Mental Health Act, 1987 and the same was rejected by order dated 6th March, 2023 in the following terms:

"Upon being informed about Section 126 of the Mental Healthcare Act, 2017, whereby the Mental Health Act, 1987, has been repealed by the Parliament, the Ld. Advocate for the petitioner has submitted that this case may be taken to be covered by clause (f) of