FAO 328/2015

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 13^th February, 2017

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FAO 328/2015 and C.M. Appl. 45044/2016

BHAGWAN

..... Appellant

Through:

Mr. Tarun Shokeen, Advocate

with appellant in person

versus

STATE & ORS

..... Respondents

Through:

Mr. Arjun Mitra, Addl.

Standing Counsel for GNCTD

with Ms. Jaskaran Kaur,

Advocate

CORAM:

HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT (ORAL)

1.

The appellant has challenged the impugned judgment whereby

the Trial Court has dismissed the appellant’s petition under Section 59

of the Mental Health Act, 1987.

2.

On 11^th January, 2013, the appellant, elder brother of Mukesh

(respondent no.7) filed a petition for permission to transfer the

property of respondent no.7 under Section 59 of the Mental Health

Act, 1987. The averments made in the petition are as under: -

2.1.Mukesh (respondent no.7) is a mentally ill person with severe

degree of mental retardation assessed as 75%. The appellant is looking

after and managing respondent no.7. Copy of the disability certificate

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FAO 328/2015

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dated 13^th August, 1999 issued by the Medical Board of Safdarjang

Hospital assessing the permanent disability of Mukesh as 75% due to

severe degree of mental retardation was annexed as Annexure B to the

petition.

2.2.The appellant has been appointed as guardian for maintenance,

residential care and management of properties of respondent no.7 by

the Deputy Commissioner, North-West on 23^rd December, 2006. The

copy of the certificate dated 23rd December, 2006 was annexed as

Annexure C to the petition.

2.3.Respondent no.7 is a permanent resident of H. No.281, Paana

Tihaai, Mangol Pur Kalan, Delhi-110085. The ration card containing

the address of the petitioner as well as respondent no.7 was placed on

record as Annexure A to the petition.

2.4.Respondent no.7 is the owner of undivided 1/7th share in

agricultural land measuring 155 bigha and 15 biswa in village Aawal,

Tehsil Kalanaur, District Rohtak, Haryana which was inherited by

respondent no.7 along with the petitioner and respondents no.2 to 6 in

equal shares.

2.5.The petitioner is taking care of respondent no.7 from the income

out of the share of respondent no.7 in the above mentioned agricultural

land. However, the expenses of maintenance has increased and the

income from the agricultural land is not sufficient to bear the medical

needs of respondent no.7 and therefore, the petitioner be permitted to

sell the agricultural land.

2.6.The petitioner and respondents no.2 to 6 have already sold their

share in the above mentioned property and only the share of

respondent no.7 remains to be sold. Copy of the agreement was

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FAO 328/2015

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annexed as Annexure D to the petition.

3.

The petition was taken up for consideration on 16^th May, 2013,

the Trial Court examined respondent no.7 who was unable to answer

any question. Respondent No.7 was not in a position to even respond

to the questions. The relevant portion of the statement of respondent

No.7 recorded by the Trial Court is reproduced hereunder:

“Examination of mentally ill person/Mukesh s/o Late Sh.

same has also been filed alongwith with the petition.”

4.

On 16^th May, 2013, after examining respondent no.7, the Trial

Court directed the Medical Superintendent, Institute of Human

Behaviour and Allied Sciences (IHBAS) to have respondent no.7

examined by a Board of Doctors and the case was fixed for 24^th

August, 2013. Relevant portion of the order dated 16^th May, 2013 is

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reproduced hereunder:

As prayed copy of the order be given dasti.”

5.

Vide letter dated 24^th August, 2013, IHBAS sought clarification

with respect to the opinion sought whereupon vide order dated 5^th

September, 2013, the Trial Court directed the Medical Board to opine

with respect to the current menta