JUDGMENT Mushtaq Ahmad, J.
1. This is an appeal under Section 83, Lunacy Act, IV [4] of 1912, against an order of the learned District Judge of Banaras holding the appellant as of unsound mind and incapable of managing his affairs within the meaning of Section 65 (2) of the said Act.
2. One Joshi Bhawani Shanker, father of the appellant Joshi Ram Krishna, died in 1931, leaving the latter as the surviving member of his joint Hindu family and leaving property alleged to be worth about ten lacs including cash deposits in various Banks. He also left a widow Mt. Rukmini Bai.
3. On 18th December 1942, Rukmini Bai, the appellant's mother, who is the respondent in this case, applied under Section 63, Lunacy Act, for an inquisition to be made that the appellant, being a man of unsound mind, was incapable of managing his affairs, and praying for the appointment of a guardian of the latter's person and property. This application was not accompanied either by any affidavit or medical certificate. Were it not for the fact that the order of the learned District Judge under appeal was passed in pursuance of an order of this Court in a previous appeal, to be referred to later, it would have been necessary to consider the value of this application in the absence of an affidavit or a medical certificate in support thereof. It would not, however, be necessary to go into that question now.
4. On 9th July 1948, the appellant filed a reply to the said application denying the respondent's allegations with regard to his being of unsound mind and his inability to manage his affairs. This reply appears to have been signed by him in English, in what may be called a set hand. On 25th August 1943 he appeared in Court and his statement was recorded on the back of the respondent's application of 18th December 1942. This statement was as follows:
I have zamindari in three villages and pay Rs. 6000 or so in land revenue. My munib keeps the accounts and I do not supervise them, unless I think necessary to do so. I read the "Aj." I cannot say as to how many annas there are in the sum of Rs. 5. I gave Rs. 12,000 to the Sadhoo Ranjan Bahadur for the Jantar ordered. I paid him the sum for the spiritual benefit conferred on me thereby. Our annual expenditure is about Rs. 12,000. I cannot say that 'five plus ten amounts to how much. I do cot understand how the Munib keeps my accounts-he just explains them to me, whenever he thinks necessary to do so. I cannot be cheated by the munib (word not legible) is a supervisor over him. I cannot say whether the sum of annas 9 is larger than the sum of 17 pies or not. I do not understand how monetary transactions are done. I have no idea of financial matters. I, in fact, exercise no control over my munib or over my money matters.
5. The appellant was not cross-examined on the above statement, as a note made by the learned District Judge under the same would show. No other evidence either by the applicant, Mt. Rukmini Bai, or the opposite party, the present appellant, was then produced on the question of the latter's mental unsoundness and incapacity.
6. The learned District Judge, on 27th August 1943, allowed the application of Mt. Rukmini, relying on the above statement of the appellant which he quoted verbatim in his order. This means that he took the statement as disproving his mental soundness and capacity to manage his affairs.
7. On 2nd December 1948, the appellant filed F.A.F.O. 307 of 1943, against the above order in this Court, During the pendency of that appeal, he filed a medical certificate from Col. J. B. Vaidya, the then Civil Surgeon of Banaras, which is paper No. 71c on the record and is dated 22nd February 1945. That was to the effect that I examined Joshi Ram Krishna Joshi s/o Joshi Bhawani Shankar today. I had examined him on three different occasions before this and had talked with him on his affairs and general matters. I am of opinion that his mental condition is good. He appeared to be ration: and able to understand his affairs.
8. The Bench hearing the appeal allowed on 31st January 1946, and remanded the case for a fresh decision by the learned District Judg after taking such medical evidence as the parties chose to offer. This obviously meant that the learned Judges had not considered the statement made by the appellant, and recorded on the back of the respondent's application of 18th December 1942, as sufficient to negative his mental sound-ness and capacity to manage his affairs, as the learned District Judge had done. This is matter to which I shall refer later in great detail, as considerable emphasis has been laid 1 the respondent's counsel on that statement) proving the appellant's state of mind, so as justify the order now under appeal.
9. After the case had reached the Court below, Col. Vaidya was examined in support his certificate of 22nd February 1945, and the was also examined one Chandrama Prasad, the manager of the appellant's estate, both on the appellant's behalf. No evidence, again, was adduced by the respondent on the point in question. It is necessary to quote from the evidence of these two witnesses in some detail.
10. Col. Vaidya, inter alia, stated that ...He appeared before me on three differs occasions and was with me perhaps for 15 or 20 minutes each time. I talked to him on his affairs and gene matter and my opinion is that his mental condition was sound and that he was rational and able to under-stand his affairs.... I must have asked him his name etc, the property he possessed, his income and the manner in which he managed his property. His answer were consistent and sane.... I do not remember have put any arithmetical questions to the to.... As I had come to a definite conclusion as to state of the man's mind after three days' examination, I did not consider it proper to examine him over a longer period.... If a man is unable to say whether a sum of 7 annas is greater or smaller than a sum of 14 pies, I would conclude that he does not know the value of anna or has lost his memory or is insane. I cannot conceive of a man who is of sound mind but is incapable of learning simple arithmetic, except when a man may be living in a place where such arithmetic is unnecessary. I would not apply that to the man whom I have examined. He did not appear to come from such a primitive stock.
If this man failed to answer the question '1 many annas are contained in Rs. 5,' I would say that he is a man of low mental calibre.... The fact that the man lived in Banaras city and belonged to a fat of zamindars and jewellers would make no difference to my conclusion, unless his answers on other quest of a general nature revealed the Same degree of mental weakness. I would in that case call him an idiot, or imbecile or an insane. .
The other witness Chandrama Prasad, inter alia, deposed that ...Joshi Ram Krishna has read for a short time in a school. He knows very little English knows some Sanskrit and Hindi and can read writs Hindi.... I, however, give him (Joshi Bhawan Shankar's son) whatever help he asks me, the reason, and I make enquiries. Ram Krishna has never examined the daily, monthly or annual accounts, so far as I am aware. He, however, makes enquiries such as mentioned above...., Ram Krishna is not capable of managing his kothi and financial affairs alone without help. He lacks the capacity as well as the desire to do so. The lack is natural.
In considering the statement of Chandrama Prasad just quoted, we shall have to remember that so far as his version of the appellant's incapacity of managing his kothi and financial affairs alone is concerned, it cannot be accepted, without all reserve, inasmuch as the witness was certainly interested in safeguarding the continuity of his associations with the property and his management of the same as an inevitable necessity in view of the suggested inability of the appellant to manage it without anyone's aid. We, however, have to examine his statement only from one point of view at present, namely as to how far it affords corroboration to the certificate and the evidence of Col. Vaidya on the question of the appellant's mental capacity. The learned District Judge rejected all these materials and, accepting the respondent's case, held the appellant as of unsound mind and incapable of managing his affairs under Section 65 (2), Lunacy Act. This appeal is directed against that order.
11. A scrutiny of the order under appeal would dearly show that, apart from the corroboration of the appellant's mental condition, which the learned District Judge inferred from the aforesaid medical certificate and statements, the main circumstance which influenced his mind was the appellant's inability to have given accurate answers to the three arithmetical questions put to him by the learned Judge. A consideration of the matter would resolve itself into the question whether that circumstance taken by itself could be taken as evidence of the appellant's unsoundness of mind and incapacity to manage his affairs within the meaning of Section 65 (2), Lunacy Act, or whether it only showed his weakness of intellect, which did not come within the requirements of that section. We have obviously to consider the appellant's inability in this behalf along with the rest of his statement of 18th December 1942, and also in the light of Col. Vaidya's certificate and evidence, together with the evidence of the other witness Ghand-drama Prasad.
12. So far as the learned District Judge is concerned, there is no doubt that he did attach , considerable importance to the appellant's inanity to answer the three questions of arithmetical calculation, as would appear from the following passages in his judgment:
(1) A perusal of the statement shows that he was capable of giving rational answers to the questions that were put to him, but at the same time it reveals his utter inability to answer even the simplest numerical or arithmetical questions.
(2) It remains strange that a person who should have been in a school for a short time and can read and write Hindi and possesses some knowledge of Sanskrit, if not English, should be so incapable of answering the simplest numerical and arithmetical questions. He belongs to a family possessed of considerable zamindari property and money-lending business. His father was also a jeweller. If living in such surroundings and in spite of a certain amount of schooling he utterly lacks the capacity to answer the simplest numerical or arithmetical questions, it must obviously be due to some great natural mental deficiency.
(3) The words, "unsoundness of mind" have not been defined anywhere and there is no reason why a man with the mental equipment such as that of the opposite party should not be regarded as a person of unsound mind so as to be incapable of managing his affairs, For obviously he is an idiot or a person of unsound mind with respect to at least one particular aspect of his mind and such mental deficiency is the cause of his incapacity to manage his own affairs.
By this "one particular aspect" was obviously meant the appellant's inability to answer the questions of arithmetic.
13. No doubt the learned Judge also took the circumstance of the appellant having paid Rs. 12,000 to a person for a Jantar for the sake of his spiritual benefit also as showing his incapacity of "forming an independent judgment or of managing his affairs."
14. In addition to Col. Vaidya's certificate, as affirmed also by his evidence and the evidence of Chandrama Prasad, this Bench had the advantage of observing the appellant in Court and satisfying itself with regard to his mental condition by putting him a number of questions about various matters concerning himself, his family and his property. I shall deal with my reaction to the answers he gave later.
15. It has, at the very outset, to be realised that an order declaring a person to be of unsound mind and incapable on that account of managing his affairs is an order of a very serious character. It has the effect of disqualifying him from using his own property in the manner he desires and placing a drastic check on his rights and privileges which as a normal individual, he would be entitled to enjoy. In Mt. Teka Devi v. Gopal Das A.I.R. (17) 1930 Lab. 289 it was observed that It is, therefore, the duty of the Court before proceeding further, to determine judicially whether the person alleged to be incapable of managing himself or his affairs, is really a 'lunatic' in this sense. Secondly, it roust be remembered that this finding has got very far-reaching consequences and must be given after very great care and deliberation. It may have the immediate effect of putting a human being under restraint. It might deprive him for a time, or for ever of the possession and management of his property. It will be prima facie evidence of his 'lunacy,' and may be read in proof of it in other proceedings. The Legislature has, therefore, laid down an elaborate procedure for conducting an enquiry into this matter, and this procedure 'must be strictly followed. The Court cannot and ought 'not to deal light-heatedly with this important question, and it should not consider itself relieved of its responsibility by the mere circumstance that some or all the relatives of the person concerned have declared that he is 'lunatic'.
The above is undoubtedly an accurate statement of the policy underlying the precaution enjoined by the Legislature in the various provisions of 'the Act as a preliminary condition to the final exercise of jurisdiction by the Court in declaring a person as a lunatic, and I am inclined to consider the present case in the light of the principle so enunciated.
16. Before I refer to the probable inferences that one can draw from the materials on the record regarding the appellant's mental condition, it is necessary to summarise the legal position with a view to evolve the test to be applied in such cases. It is in the light of that test that I shall have to consider the effect of those materials on the question in hand.
17. The expression "mental unsoundness" has not been defined in the Indian Lunacy Act itself. It was, however, explained in the case of Lalita Devi v. Nathuji Joshi AIR (26) 1939 All 333 on which great reliance has been placed by the learned Counsel for the respondent. It was there pointed out on the authority of Taylor that the term "denoted an incapacity to manage affairs" and relying on In Re: Cowasjee Beramji Lilaoovala, 7 Bom. 15, it was observed that in Section 1 of Act XXXIV of 1858 it comprehended imbecility whether congenital or arising from old ago as well as lunacy or mental alienation resulting from disease.
The learned Judges further accepted the die-turn, of Lord Eldon in Bidgeumy v. Darwin (1802) 8 Ves. 65 that the test was not whether the person in question was absolutely insane, but the Court has thought itself authorised to issue a commission, provided it be made out that the party is unable to act with any proper or providential management, liable to be robbed by any one; under that imbecility of mind, not strictly insanity, but as to the mishchief calling for as much protection as actual insanity.
18. It may be safely stated that the expression implies some unusual feature of the mind as has tended to make it different from the normal and has in effect impaired the man's capacity to look after his affairs in a manner in which another person without such mental irregularity would be able to do in a matter of his own. The idea suggests some derangement of the mind, whatever be its degree, and it is not to be confused with or taken as analogous to a mere mental weakness or lack of intelligence.
19. In Rameshwar Tewari v. Nageshwar Tewari 2 A.L.J. 154 it was held that a mere finding that the man is of "undeveloped mind or incapable of managing a large estate" was not enough, but that "it must be shown that he is subject to delusions". Again, in Upendra Mohan Roy Chodhury v. Narendra Mohan Boy Chodhury A.I.R. (13) 1926 Cal. 155 it was pointed out that a person whose mental condition had been affected by the stroke of paralysis by which he suffered, and, both owing to this and owing to his age his memory has been seriously affected, and he was unable to recognise his relations, but was able to answer questions with regard to his estate with certain amount of intelligence and also questions with regard to his family, could not be said to be of unsound mind and incapable of managing his affairs. In Mahipati v. Mt. Changuna A.I.R. (21) 1934 Nag. 27 Pollock A.J.C. observed that a person who was not sufficiently intelligent to manage his own affairs was not necessarily of unsound mind. Tek Chand J. in the case of Mt. Teka Devi v. Gopal Das A.I.R. (17) 1930 Lab. 289 already referred to by us emphasised that in assuming transaction under the Lunacy Act the Court must keep in view the distinction between mere weakness of intellect and 'lunacy' as understood in the Act. It is only with lunatics as defined in Section 3 (5) that the Act is concerned.
20. The main factor, as I have already pointed out, which influenced the learned District Judge in granting the application of Mt. Rukmini respondent was the appellant's inability to return accurate answers to some arithmetical questions put to him in the course of his statement on 18th December 1942. The learned Judge himself remarked in his judgment that "He was capable of giving rational answers to the other questions that were put to him." If a man is able to understand and answer questions on various matters except those relating to arithmetical calculations, he cannot in my opinion, be regarded as mentally unsound although he would be held as having a weak or undeveloped mind. This, I think, is the necessary inference to be drawn from the medical certificate of Col. Vaidya and the evidence given by him and the other witness Chandrama Prasad, extracts from which I have already quoted in an earlier part of this judgment. It must, at the same time, be remembered that no evidence, either in the shape of a medical certificate, or of any other form, was even attempted to be given by the respondent, so that our consideration of the matter is necessarily confined to the material brought on the record on behalf of the appellant alone. A man may find it difficult to answer questions of a particular class but if he intelligently answers questions of various other sorts concerning himself, his family and property, he cannot be classed with men of unsound mind being unable to manage their affairs. As I have already mentioned, the Bench had the opportunity of calling the appellant into its presence in Court, and put to him various questions which also partly involved some calculation of time. He no doubt said that, although his father had died in 1981 and that the current year was 1948, he could not say how many years had elapsed since the death of his father. If this statement had stood by itself, I might have found it difficult to differ from the view taken by the learned District Judge, but I put to the appellant a large number of questions and observed him carefully for about 20 minutes in Court, and he appeared to be rather a quiet and sober looking person able to answer those questions which related to his parents, his children, his property and the management thereof. I could have no such feeling in the course of his statement in Court as to justify a conclusion that he was a man of unsound mind. As I have already mentioned, his reply to the respondent's application of 18th December 1942, and some other documents on the record bore his signatures in English in a set hand, which did not give the slightest indication that those signatures, were by any irrational person who was not aware that he was signing documents in the course of judicial proceedings.
21. I cannot also dismiss from my mind the fact that, although Col. Vaidya's certificate had been taken by the learned District Judge on the earlier occasion as evidencing such a state of the appellant's mind that he had not felt himself justified in holding him to be a man of sound mind, the Bench hearing the appeal against his order certainly did not think the learned Judge's conclusions as based on that certificate only to be well founded. It was in that view that the case was remanded to the Court below with a direction for a fresh decision on such medical evidence as the parties chose to offer. After the case had gone back Col. Vaidya's certificate remained unchallenged, and so did his evidence and the evidence of Chandrama Prasad, none having been given by the respondent herself in rebuttal.
22. The learned Counsel for the respondent has placed great reliance on the case of this Court reported in Lalita Devi v. Nathuji Joshi A.I.R. (26) 1939 ALL. 333 already referred to by me in another connection. There is hardly anything common between that case and the present one. There the same Doctor, Col. Vaidya, had given a certificate testifying to the mental unsoundness of Nathuji Joshi and there was some other evidence also in support thereof. The Bench pointed out. that for nearly 26 years Nathuji had remained silent and did not speak to anybody and that "this conduct alone showed the weakness of Nathuji's mind and his incapacity to manage his affairs." It was also emphasised on the basis of the medical certificate that it was extremely difficult to extract any answers to the questions put to Nathuji and that very often the answers had no relations to the questions, and when Nathuji was inclined to answer, he took very long time to do so. It was further pointed out that in all transactions since the year 1908 Nathuji had been treated as a person of unsound mind, being represented in them by his brother Diwakarji. Even mortgages and leases were executed by Diwakarji for himself and as guardian of Nathuji fatir-ul-aql and in the khewats of villages owned by the alleged lunatic, he was so described. The learned Judges there also thought fit to call in the person for their observation, and they found him "very nervous and fidgety" and that except simple questions he failed to answer, and even simple questions were answered after considerable delay and with much persuasion.
They summed up their finding in the following words:
Our observation of Nathuji and the notes of Col. Vaidya on the record fully satisfy us that he is incapable of managing his affairs in consequence of his mental weakness and unsoundness of mind.
23. As has already been shown, in the present case, Col. Vaidya's certificate is just to the contrary, and my own impressions after observing and examining the appellant in Court were just the reverse. This ruling, therefore, has no bearing on the present case.
24. In support of the judgment under appeal, reliance was also placed on the case of Sonabati Debi v. Narain Chandra Upadhya A.I.R. (22) 1935 Pat. 423 in which the only point emphasised was that 'the proper test of insanity was the man's conduct" and that:
If his conduct remains normal, there would be no power under the Lunacy Act to deal with him, because law of Lunacy deals with conduct and proper test for insanity is not the beliefs that the person concerned may entertain but the conduct exhibited by that person.
This, if I may say so, is a perfectly sound test, but no evidence regarding the appellant's conduct having been given in the present case, there are no materials before me on which an application of this test may lead to an inference favourable to the respondent.
25. In view of the materials on the record and considering them in the light of the principles laid down in the various rulings I have come to the conclusion that the appellant was not proved to be a man of unsound mind and incapable of managing his affairs within the meaning of Section 65 (2), Lunacy Act.
26. Accordingly, I would allow this appeal, set aside the order of the Court below, and dismiss the application of the respondent dated 18th December 1942. I would further hold that costs in this Court also be borne by the estate, m conformity with the order of the Court below regarding the costs in that Court.
Raghubar Dayal J.
27. I agree with the order proposed to be passed by my learned brother in this appeal and the reasons therefor, but would like to add a few words with reference to the contention that the case of Lulita Devi v. Nathuji reported in A.I.R. (2G) 1939 ALL. 333, lays down that a person of weak mind or of undeveloped mind must be held to be a person of unsound mind. I am of opinion that that case cannot be taken to hold so.
28. The facts of that case were very different from the facts of the present case. This has been clearly brought out in the judgment of my learned brother.
29. The expression "unsound mind" is not defined in the Lunacy Act and I do not find any precise interpretation of this term in the aforesaid case. The learned Judges after considering what had been held in some cases and what had been observed by Taylor in his book on Medical Jurisprudence remarked that:
The question we have to determine is whether unsoundness of mind is of such a degree as to render Nathuji incapable of managing his property. Our observation of Nathuji and the notes of Col. Vaidya on the record fully satisfy us that he is incapable of managing his affairs in consequence of his mental weakness and unsoundness of mind.
The question as framed would indicate that it was taken for granted or it war found on the basis of the observations that Nathuji was of unsound mind and that the question for decision was simply this whether he was capable of managing his affairs or not. Their Lordships then distinguished the case of Lalu Ram v. Thakur Das 2 A.L.J. 156, on the ground that the Act which was interpret-ed in that case defined a lunatic as a person of unsound mind and incapable of managing his own affairs, while under the present Lunacy Act they had to give a special finding whether Nathuji was of unsound mind so as to be incapable of managing his affairs. They then observed that It is manifest that there is a distinction between the two definitions. The degree of unsoundness of mind of Nathuji in the present case has to be found in relation to his capacity to manage the affairs of his estate.... Several other authorities have been cited by counsel for the parties. In our opinion they do not help us in ascertaining whether Nathuji is or is not a person of unsound mind.
The learned Judges finally remarked that:
Each case has to be decided on its own facts and on the facts proved in this case we are satisfied that we have jurisdiction to appoint a manager of the property of Nathuji.
30. The doctor's opinion in the case expressed with respect to the alleged person of unsound mind was to the effect that the mental condition of the person was not such that he could manage his affairs and that he was not a complete idiot but was bordering on idiocy. The learned Judges agreed with this opinion of the doctor as they remarked at page 151 that:
We have come to the conclusion that Col. Vaidya's opinion correctly represents the mental condition of Nathuji.
They further remarked that:
In our opinion Nathuji can very easily be imposed upon and he can be made to sign almost any document that is presented before him provided he has confidence in that person. In his own interest it appears to us absolutely necessary to appoint a manager to look after his property and to make arrangements to realise the rents due to him. This course is possible only if we have jurisdiction to do so. In order to decide the question of jurisdiction it is necessary to examine the relevant section of the Act.
In expressing their opinion the learned Judges did not remark that they considered Nathuji to be of unsound mind because he was of weak mind or he had an undeveloped mind. They appeared to consider him to be of unsound mind because his mind was such that he could be described as bordering on idiocy. A person bordering on idiocy is, in my opinion, to be distinguished from a person who is merely of a weak mind or whose mind is not as much developed as would be expected in the ordinary course. I, therefore, do not consider this case to be any authority for the proposition that a person of weak mind is necessarily a person of unsound mind or that merely because a person is incapable of managing his affairs he can be said to be a person of unsound mind. ,
31. Unsoundness of mind by itself should be something different from a mere capacity to manage one's affairs. One may not be able to manage one's affairs for various reasons. In-capacity to manage, therefore, before a Court can appoint a guardian of a person under the Lunacy Act, should be the result of the unsoundness of the mind of the person concerned.
32. Taylor in his Principles and Practice of Medical Jurisprudence, Vol. I, Edn. 9, says at page 759:
It is quite impossible to define the term insanity with any precision, for there is no definite dividing line between sanity and insanity-one state passing imperceptibly into the other.
The term insanity as ordinarily used cannot a fairly advanced degree of disorder or unsoundness of the mind. It has to be noted, however, that certain types of Insanity, for example, moral insanity, may co-exist with an apparently ordered mind. It is by means of the mind that an individual is able to adopt himself to his environment, and thus disorder or disease of the mind is shown primarily in disorder of thought and disorder of conduct. When that conduct becomes sufficiently disordered to bring the individual into conflict with his environment the law takes steps to place the person under care and restraint.
He then mentions the various terms used in describing disorders of observable conduct and they include: Dementia, Depression, Exaltation, Excitement and stupor, Delusions, Illusions, Hallucinations, Moral insanity and Impulse.
33. I should think that unsoundness of mind can be said to be dependent on certain states of the mind and on the outward conduct of the person due to his particular mental condition. It should have some connection with the derangement of mind which may be said to be a state of a disordered mind. If the mind is not in any way, deranged, but is merely weak or undeveloped, it cannot be said to be an unsound mind.
34. I would, therefore, say that a person with an undeveloped mind or with a weak mind or a feeble-minded person is not necessarily a person of unsound mind.
35. The appeal is allowed, the judgment of the Court below is set aside and she application of Mt. Rukmini Rai under Section 63, Lunacy Act, is dismissed. The appellant will be entitled to his costs in both the Courts.