TMI Blog2004 (9) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate to appoint a guardian ad litem under Order XXXII Rule 15. However, the Court is not bound to make a rigorous or formal enquiry as contemplated by the Lunacy Act, and is competent to pass an order as soon as it is satisfied as to the party's mental competence. There is a vast difference between mental unsoundness and incapacity by reason of mental infirmity, the latter being of a lesser degree. The Collins/Cobuild English Dictionary defines infirm as weak or ill and usually old. The Concise Oxford Dictionary states that infirm refers to a person who is not physically strong, especially through age. In Black's Law Dictionary infirm has been defined as - weak, feeble, lacking moral character or weak of health. Incapacity has been defined in the same treatise as want of legal ability of act. A person suffering from a low intellectual quotient (IQ) may not be viewable as of unsound mind, but there can be no gainsaying that he would be incapable of protecting his interests in a litigation. The Mental Health Act, 1987, in Section 2(l) defines 'mentally ill person' as one who is in need of treatment by reason of any mental disorder other than retardation, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or not. As no such inquiry was held, there cannot be any doubt whatsoever that the learned single Judge committed a jurisdictional error in passing the impugned judgment which, the Division Bench as noticed hereinbefore upheld. In recording this opinion the Court had obviously underplayed the palpable contradiction in that the person who was to be adjudged as mentally infirm had herself made this prayer, and Therefore, strictly speaking, was lucid and intelligent enough to arrive at this conclusion. Secondly, the Court took care to draw a distinction between the two legs of the Section; it differentiated between unsound mind and infirm mind. Thirdly, it underscored the need for the Court to make an enquiry on this issue. The Petitioner was duty-bound and to draw the attention of the Court to Respondent No. 4's mental retardation at the inception of the litigation so that the Court could complete its mandate of conducting an enquiry on this question, as has been observed in Om Prakash Sharma v. Union of India, 27(1985)DLT66 and Shri B.K. Khanna v. Shri K. N. Khanna and Ors., (1997) 2 Delhi 492. I think that it is imperative for the Court to first satisfy all doubts about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was well aware that Shri Brahm Prakash could not look after his own affairs and, Therefore, a Trust was required for his welfare. It is unheard of that the moment a misunderstanding between spouses or breakdown of a marriage occurs, the property of the Husband are put into a Trust. The formation of a Trust by the Mother of the parties is sufficient proof that Shri Brahm Prakash is of unsound mind in that he cannot properly and effectively safeguard his interests. It is also not in contention that a Probate Petition in respect of the Will of Late Muthri Devi is also pending adjudication in the District Court in which Shri Brahm Prakash was arrayed as one of the Petitioners, but has since been transposed as a Respondent. It is the common case of the parties that a Trust is sought to have been created by this Will whereby Shri Jai Prakash/Petitioner is to act as a Trustee for Shri Brahm Prakash. 4. Prima facie, it appears that the No-Objection had been filed by Shri Brahm Prakash since the Petitioner/Jai Prakash was then looking after Shri Brahm Prakash and his family. There seems to be a discord in this relationship which has resulted in the first salvo of the litigation, that is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at a Dhaba where he has to take his meals because these are not available to him either through his Brothers or his Wife. This also goes to show that all the relatives had shunned the company of Shri Brahm Prakash quite probably because of his mental malady. Mr. Andley, learned Senior Counsel for the Petitioner has also emphasised that a Ration Card exists in the name of Shri Brahm Prakash but this cannot, in itself, indicate that he was in a state of mind or intelligence which would enable him to effectively and fully protect his interests in litigation. It has also been submitted that Shri Brahm Prakash had appeared before the Sales Tax Authorities; but the complete circumstances have to be seen before one can arrive at the conclusion that Shri Brahm Prakash had effectively protected his interests in those proceedings. Mr. Andley has further vehemently argued that Shri Brahm Prakash has filed Affidavits from time to time. The argument is totally without justification since this cannot also indicate soundness of mind. At the time when he filed his No-Objection Shri Brahm Prakash was admittedly under the influence of and in the protection of the Petitioner and the mother of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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