The High Court has jurisdiction to appoint guardians for mentally incapacitated individuals under Clause XVII of the Letters Patent, even in the absence of specific legislative provisions following the repeal of the Mental Health Act.

ORAL JUDGMENT:

1. When the matter is called out, Mr. Jeejeebhoy, learned Counsel appearing for the Petitioners submits that the Interim Application No. 1768 of 2025 is wrongly on board as the same has been disposed of by order dated 24^th April, 2025.

2. Accordingly, remove the Interim Application No. 1768 of 2025 from the board.

3. Mr. Jeejeebhoy further submits that as permitted by this Court by order dated 24^th April, 2025, the Guardianship Petition has been amended and that this Petition be treated as a Petition under Clause XVII of the Letters Patent.

4. I have heard Mr. Jeejeebhoy, learned Counsel for the Petitioners at length.

5. But before proceeding further, I deem it apposite to set out Clause XVII of the Letters Patent as under:-

“17. Jurisdiction as to infants and lunatics : And We do further ordain that the said High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics, within the Bombay Presidency, as that which was vested in the said High Court immediately, before the publication of these presents.”

6. As can be seen under Clause XVII of the Letters Patent, this Court has power and authority with respect to the person and estate of infants, idiots and lunatics within the Bombay presidency.

7. A Letters Patent is the Charter of the High Court ( Vinita M. Khanolkar Vs. Pragna M. Pai and Ors , [2.AIR 2002 SC 1357], Sharda Devi Vs. State of Bihar²). A Letters Patent is the specific law under which a High Court derives its powers ( Shah Babulal Khimji Vs Jayaben D. Kania and Anr. , [3.AIR 1981 SC 1786] ). It is not a subordinate piece of legislation. Further, it is settled law that until and unless a legislation specifically excludes the applicability of the Letters Patent, the Letters Patent is applicable i.e. it cannot be excluded by implication. Special law will always prevail over general law. A Letters Patent is a special law for the High Court and the Code of Civil Procedure, 1908 in the general law. That in the event of conflict between a special law and a general law, the special law will always prevail.

8. An “idiot” as per the Black’s Law Dictionary as referred to in clause XVII of the Letters Patent means a person who is afflicted with profound mental retardation.

9. Under the Mental Health Act, 1987 , which has since been repealed, there was a specific provision under Section 53 of the said Act empowering the District Court to appoint a legal guardian for a mentally ill person. Section 53 of the said repealed Mental Health Act, 1987 reads as under:-

“53. Appointment of guardian of mentally ill person.-(1) Where the mentally ill person is incapable of taking care of himself, the District Court or, where a direction has been issued under sub-section (2) of section 54, the Collector of the District, may appoint any suitable person to be his guardian.

(2) In the discharge of his functions under sub-section (1), the Collector shall be subject to the supervision and control of the State Government or of any authority appointed by it in that behalf.”

10. The Mental Health Act, 19