Point of Law: Rule 8 deals with ‘qualification of person to be appointed as a limited guardian’.

JUDGMENT :

The appellant was the petitioner before the District Court, Wayanad. The petition was filed under Section 14 of the Rights of Persons with Disabilities Act, 2016 (for short, ‘the Act’) to appoint the appellant as the guardian of the person and property of one Sulaiman and also to grant permission to the appellant as guardian to execute the ratification/consent deed in respect of the petition schedule properties ratifying the execution of the deed of partition No.1627/2006 of SRO, Panamaram. The brief facts necessary for the disposal of this F.A.O. are as follows:

2. Respondents Nos.1 to 4 are the direct brothers and sisters of the appellant; respondents no.5 to 10 are the legal heirs of the late Ibrahim; respondents nos.11 to 13 are the children of one Nabeeza; and respondents nos.14 and 15 are the children of Sulaiman. The appellant is the brother of Sulaiman, who is aged 68 years and a mentally disabled person due to Sehizo-Phrenia and having 40% permanent disability. The Medical Board attached to the Department of Health Services, District Hospital, Mananthavadi, has issued a certificate showing the disability. The appellant averred that he is looking after the affairs of Sulaiman, and residing with him. Sulaiman was married and had two children, but subsequently, the wife divorced Sulaiman by exercising fasq. The petition schedule properties originally belonged to the mother of the appellant and the respondents as per the certificate of jenm purchase issued by the Land Tribunal, Sulthan Bathery. On the mother's death, the property devolved to the petitioner, Sulaiman, and the respondents nos.1 to 4 jointly, along with Ibrahim and Nabeesa. Later, Ibrahim and Nabeesa died, and their rights devolved upon respondents nos.5 to 13. In 2006, they executed a deed of partition No.1627 of 2006, and thereby, the entire property was partitioned, and C schedule was allotted to Sulaiman. Sulaiman is under the care and custody of the appellant, including the property allotted to him. He has no adverse interest against Sulaiman. Therefore, the petition was filed.

3. On the presentation of the petition, the O.P. was not entertained for the reason that the court did not have jurisdiction under the Mental Health Care Act 2017. Thereafter, the counsel for the appellant gave a reply on 12.07.2022, stating that the issue is covered under the Rights of Persons with Disabilities Act, 2016, as he is suffering from Sehizo-Phrenia and 40% disability. He relied on the judgment reported in 2021 (3) KHC 304. Thereafter, the learned Judge, by order dated 18.07.2022, returned the petition, stating as follows:

“Heard counsel for the petitioner and perused the gazette notification, SRO No.609/2020 dated 23.09.2020, which shows that the Govt. of Kerala has notified and designated the Sub Divisional Magistrate of the area as the designated authority for granting limited guardianship under sub Section 1 of Section 14 of the Rights of Persons with Disabilities Act, 2016 and therefore, the Court is not the competent authority to recourse the said jurisdiction. Hence, the petition is returned.”

4. The issue that arises for consideration is whether the District Court has the jurisdiction under Section 14 of the Act to entertain the petition for provision for guardianship. For a proper understanding of the case, Section 14 of the Act is extracted below:

“14. Provision for guardianship.-(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government:

Provided that the Di