Mentally ill person's lack of consent and non-pending litigation are invalid grounds to reject limited guardianship application; must reconsider afresh.

JUDGMENT

The brother-in-law of a mentally ill person has approached this Court with a grievance that Ext.P4 application filed before the 2ndrespondent to grant limited guardianship to him to dispose of the property of the mentally ill person was dismissed by the 2ndrespondent by Ext.P5 order based on incorrect and irrelevant considerations. Respondents 3 to 5 are the other siblings of the mentally ill person.

2. According to the petitioner, his brother-in-law Muhammed Ali is suffering from Schizophrenia; that Ext.P1 certificate was issued from the Government District Hospital, Kannur, certifying his mental illness. The mentally ill person was admitted to the 6^th respondent center for care and control. The expenses relating to him comes to ₹18,000/- per month and an amount of ₹15,24,534/- was due to the 6^th respondent as on 30.11.2011 Ext.P4 application was filed before the Sub Divisional Magistrate to appoint the brother-in-law of the mentally ill person as a limited guardian to dispose of the property to clear off the liabilities. The mentally ill person is incapable to dispose of the property without appointing a guardian. But the 2^nd respondent dismissed Ext.P4 application citing two reasons. One of the reason stated in Ext.P5 order is that the mentally ill person has not given consent and the other reason stated is that the issue relating to the guardianship of the mentally ill person is pending before the District Court.

3. According to the petitioner, the said two reasons are incorrect and Ext.P4 application was dismissed by the 2^nd respondent on irrelevant considerations. No consent can be given by the mentally ill person on account of his disability and he is incapable of making a decision. Likewise, petition is pending before the District Court for appointing a guardian for the mentally ill person. Therefore, according to the petitioner, Ext.P5 order is to be set aside and a direction to be issued to the 2^nd respondent to dispose of Ext.P4 afresh.

4. Heard the learned counsel for the petitioner and the learned Government Pleader and also Advocate Sri.Ramkumar Nambiar, the learned Amicus Curiae.

5. The limited prayer sought in this writ petition is to direct the

2^nd respondent to dispose of Ext.P4 application afresh on the ground that the reasons stated therein that a petition is pending before the District Court regarding the guardianship of the mentally ill person, is incorrect and no such litigation is pending before the District Court as stated in Ext.P5 order.

6. The learned counsel for the petitioner submitted that the petitioner is ready to file an affidavit before the 2^nd respondent that no litigation is pending before any other forum regarding the appointment of a guardian for the mentally ill person.

7. In the above circumstances, this Court is of the view that a direction can be given to the 2^nd respondent to consider and pass orders afresh in Ext.P4 application.

8. Accordingly, this writ petition is allowed, Ext.P5 order is set aside; there shall be a direction to the 2^nd respondent to consider Ext.P4 application afresh in accordance with law, after affording necessary opportunity to the petitioner and respondents 3 to 5.

9. It is made clear that this Court has not gone into the merits of the need stated in the petition for sale of the property of the alleged mentally ill person.