The court must establish unsoundness of mind and incapacity to manage affairs, and the absence of a provision in the Lunacy Act similar to Section 109, Lunacy Act of 1890, limits the court's discretion in ordering costs.

Beasley, C.J.

1. This is an application under the Indian Lunacy Act by a wife for an order directing an inquisition whether her husband is of unsound mind and incapable of managing himself and his affairs. The application was heard by Anantakrishna Ayyar, J. He himself examined the respondent and questioned him for more than an hour and heard the medical evidence and came to the conclusion that the respondent was not of unsound mind, though subnormal and was not quite capable of managing his affairs though he was capable of managing himself. What has to be found under the Act is that the person is of unsound mind and that the unsoundness of mind is such as to make him incapable of managing his affairs. A person who is incapable of managing his affairs is not necessarily of unsound mind and a person of unsound mind may not be incapable of managing his affairs. The Court must hold that both unsound-ness of mind and incapacity to manage his affairs are present and that the latter is due to the former. Here the evidence is that the respondent, 33 years of age, has an intellectual development of a, boy of not more than twelve due to an attack of an infantile paralysis when aged three which has arrested his mental development but it does not follow that because that is so he is of unsound mind. We have been referred to the medical evidence in the case and we have the advantage of the learned trial Judges comments on the answers and demeanour of the respondent when under examination by the Court. The learned trial Judge was in a far better position to weigh up that evidence by reason of having the witnesses before him and we here, having ourselves read through the evidence and seen the comments thereon of the learned trial Judge, see no reason whatever for differing from the opinion which he has given. It must be made quite clear that the first finding to be arrived at is with regard to unsoundness of mind. When once that has been proved then the Court has to consider whether that unsoundness of mind is of such a nature as to render the respondent incapable of managing his affairs. Here we have got a finding that the respondent was not of unwound mind and it was therefore not necessary to proceed beyond that point, for these reasons this appeal must be dismissed. On the question of costs, the appellant asks us to order that the appellants costs are to be paid out of the estate of the husband respondent because although the appeal has failed the application for an inquisition was a bona fide one made in the best interests of the husband respondent, and the appeal a reasonable one; and our attention has; been drawn to In re Cathcar (1892) 1 Oh. D. 549. There a petition had been presented by a husband for an enquiry into the mental condition of his wife. The result of the enquiry was that the petitioners wife was found to be of sound mind and capable of managing herself and her affairs. An application was made by the petitioner for a direction that all the costs of the proceedings should be paid by his wife and it was held, by the Court of appeal that upon the evidence there were sufficient ground to justify the petitioner in instituting the inquiry and an order was made for the petitioner to receive two-thirds of the amount of his costs of all the proceedings out of the property belonging to his wife. It is clear from the judgments that the Court would not have been able to make such an order but for Section 109, Lunacy Act of 1890, which invested the Court with such a discretion. Otherwise, the Court would have had no discretion to order a successful defendant or respondent to pay any of the costs of an unsuccessrul plaintiff or petitioner. We are of the opinion that the application hero was a bona fide one and made in the best interests of the husband respondent and that the appeal was a reasonable one despite its failure. We are however unable to make such an order as to costs as was made in In re Cathcar (1892) 1 Ch. D. 549