Before adjudging a person of unsound mind, a proper judicial enquiry must be conducted to ascertain the mental state of the person, and the evidence of an expert in the medical profession may be useful.

1. This civil revision petition is directed against the order dated 11.2.2010 passed by the District Munsif, Jayamkondam, in I.A.No.57 of 2007 in O.S. No. 64 of 2007.

2. The petitioners are the defendants in O.S.No.64 of 2007 on the file of the District Munsif, Jayamkondam. The respondents have filed the suit for declaration declaring that the suit properties are joint family properties and for consequential injunction. In the suit, the respondents filed an application in I.A.No.57 of 2007 to appoint the second defendant as guardian of the first defendant contending that the first defendant was an unsound mind person. The petitioners filed the counter and contested the petition. During enquiry, the learned District Munsif called for the first defendant to the Court and asked some questions to find out the understanding of the first defendant. When the first defendant was not in a position to understand the questions put by the Court, the learned District Munsif held that he was an unsound mind person and appointed the second defendant as guardian of the first defendant. Aggrieved by the order, the petitioners have filed the present revision.

3. The learned counsel for the petitioners submitted that as per Order 32 Rule 15 of C.P.C., before adjudging a person of unsound mind, the Court has to follow the procedure and only after categorical finding, the Court can come to the conclusion that the person is of unsound mind. But in this case, the learned Judge has observed that he asked some questions, but the first defendant was not in a position to understand and answer. The learned counsel submitted that the learned Judge did not incorporate in the order what was the questions put to the first defendant and what was the answers given by the first defendant, and before adjudging a person of unsound mind or mentally infirm, a proper enquiry should have been conducted, which is not done in this case. So, the order of the learned District Munsif is not sustainable in law. Further the consent of the 2nd defendant was not obtained before appointing her as guardian of the first defendant.

4. Per contra, the learned counsel for the respondent submitted that there are several categories of mental illness and in the present case, the first defendant was not even able to speak and he was not in a position to understand the questions. Therefore, the learned District Munsif had passed the order only in accordance with Order 32 Rule 15 and there is no illegality. The learned counsel further submitted that even the second defendant herself issued a notice dated 16.7.1991, which is enclosed as document No.77 in the suit, stating that the first defendant is a mentally unsound person. Therefore, he prays for dismissal of the revision.

5. This Court in the judgment reported in 2006 (4) MLJ 79 – Mavamani vs. Sivasubramanian, after relying on the judgments in (i) 1957 Kerala 51 – Balakrishnan v. Kalyani, (ii) AIR 1949 Mad 292 – A.S. Mohammad Ibrahim Ummal v. Shaik Mohammad Marakayar and another, (iii) AIR 1963 AP 160 – Duvvuri Rami Reddi v. Duvvudu Papi Reddi and (iv) AIR 1968 Mad 346 – S. Chattanatha Karayalar v. Vaikuntarama Karayalar and another, has held as under:

“24. The enquiry contemplated under Order 32, Rule 15 is mandatory, to ascertain the mental state of mind of a person, before he is adjudged as unsound or mentally infirm. The word “enquiry” used in the provision means, “to make an examination”, to adjudge a person judicially as a lunatic or mentally infirm. “Adjudge” means, “to decide or to determine judicially,” which means that there must be adequate materials to come to such conclusion, that a person has to be represented by a guardian.

25. When there is an allegation of unsound mind or mental infirmity, it is the duty of the Court to examine the individual and if necessary, seek the assistance of an expert to adjudge as to whether the individual is having a sound mind and capable of managing the affairs. As a precaution, the evid