Meenu Seth vs Binu Seth & Ors. on 27 October, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO No. 411/2017

% 27th October, 2017

MEENU SETH ….. Appellant
Through: Ms. Gauri Gupta, Advocate.
versus

BINU SETH ORS. ….. Respondents

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM Appl. No. 38285/2017 (exemption)

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

FAO No. 411/2017

1. This first appeal is filed under Order XLIII Rule 1 CPC

impugning the judgment of the trial court dated 9.6.2017 by which the

trial court has dismissed the petition filed by the appellant under the

Mental Health Act, 1987 (hereinafter referred to as ‗the Act’) for

appointment of the appellant as the guardian to take care of the person

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and property of Sh. Binu Seth. Sh. Binu Seth is the husband of the

appellant and is living with the respondent nos. 2 3 who are the

mother and brother of Sh. Binu Seth. Sh. Binu Seth has been arrayed

as respondent no. 1 in this appeal.

2. The facts of the case are that the appellant filed the

subject petition in the court below praying for relief of holding judicial

inquisition qua mental condition of her husband Sh. Binu

Seth/respondent no. 1 and for further prayer of the appointment of the

appellant as the guardian of the person and properties of Sh. Binu

Seth. Effectively, the reliefs when read holistically would mean that

the appellant pleads that the respondent no.1 is a mentally ill person as

defined under the Mental Health Act, 1987 and therefore judicial

inquisition proceedings be conducted in terms of Section 50 of the Act

and thereafter the appellant be appointed as the Manager of the person

and properties of the respondent no. 1.

3. Appellant was married to the respondent no.1 on

27.4.2002 in Delhi as per Hindu rites and ceremonies and she lived

with her husband till 1.5.2011. It was pleaded by the appellant in her

petition that she thereafter left the company of the respondent no. 1

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herein due to adverse circumstances created by respondent nos. 2 3

herein. It was pleaded in the petition by the appellant that respondent

no. 1 is a patient of mental disorder and that the respondent nos. 2 3

are keeping away the respondent no. 1 and not allowing the appellant

to take care of respondent no. 1 including getting his medical

treatment done. It is pleaded in the petition by the appellant that the

respondent nos. 2 3 want to usurp the entire joint family properties,

including the share of respondent no. 1/Binu Seth and respondent no.

1/Sh. Binu Seth is in dire need of appointment of guardian of his

person as well as his properties.

4. In the joint written statement filed by the respondent nos.

2 3 herein before the trial court it was pleaded that the respondent

no. 1 is not a mentally ill person as defined in Section 2(l) of the Act.

It was also pleaded that the respondent no.1 never desired that any

treatment be got done of the alleged mental illness of the respondent

no. 1. It was further pleaded that there is no property movable or

immovable exclusively in the name of the respondent no. 1. It was

further pleaded that appellant had filed a petition for divorce against

the respondent no. 1 on the basis of false and concocted allegations of

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cruelty; and that such divorce petition was later on dismissed as

withdrawn on 13.10.2011 because appellant could not prove the

truthfulness of her false allegations against the respondent no. 1.

Respondent nos. 2 3 pleaded by their written statement that the

petition was only filed to harass the respondents and therefore the

petition be dismissed.

5. By the impugned judgment trial court has dismissed the

petition by arriving at two conclusions. The first conclusion is that Sh.

Binu Seth/respondent no.1 as per the report given by Board of Institute

of Human Behaviour Allied Sciences (IHBAS) is able to take care

of himself independently but cannot take care of his properties. Trial

court has also observed that respondent no. 1 was examined in person

by the trial court and during this examination he answered to all the

questions which were put to him very well without any hesitation and

respondent no.1 behaved normally. Trial court held that even if it is

assumed that there are joint family properties, and that a Manager has

to be appointed of the properties of respondent no. 1/Sh. Binu Seth,

even then the appellant was not a suitable person to be appointed as

per Section 54 (3) of the Act and hence she cannot be appointed as a

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Manager of the properties of the respondent no. 1/Sh. Binu Seth. This

conclusion of the trial court of appellant being not a suitable person

was arrived at on account of various litigations initiated by the

appellant against the respondent no.1/Sh. Binu Seth being the divorce

petition as also a civil suit which was filed by the appellant.

6. For the purpose of disposal of this petition the provisions

of Section 2(l), 50, 51, 52, 54, 56,57, 58 and 59 of the Act are required

to be referred to and these provisions read as under:-

―2(l) ―mentally ill person” means a person who is in need of treatment by
reason of any mental disorder other than mental retardation;

50. Application for judicial inquisition.–(1) Where an alleged mentally
ill person is possessed of property, an application for holding an inquisition
into the mental condition of such person may be made either–

(a) by any of his relatives, or

(b) by a public curator appointed under the Indian Succession Act,
1925 (39 of 1925), or

(c) by the Advocate-General of the State in which the alleged
mentally ill person resides, or

(d) where the property of the alleged mentally ill person comprises
land or interest in land, or where the property or part thereof is of
such a nature as can lawfully be entrusted for management to a
Court of Wards established under any law for the time being in
force in the State, by the Collector of the District in which such
land is situate,
to the District Court within the local limits of whose jurisdiction the alleged
mentally ill person resides.

(2) On receipt of an application under sub-section (1), the District Court
shall, by personal service or by such other mode of service as it may deem
fit, serve a notice on the alleged mentally ill person to attend at such place
and at such time as may be specified in the notice or shall, in like manner,
serve a notice on the person having the custody of the alleged mentally ill
person to produce such person at the said place and at the said time, for

FAO No. 411/2017 Page 5 of 15
being examined by the District Court or by any other person from whom the
District Court may call for a report concerning the mentally ill person:

Provided that, if the alleged mentally ill person is a woman, who
according to the custom prevailing in the area where she resides or
according to the religion to which she belongs, ought not to be compelled
to appear in public, the District Court may cause her to be examined by
issuing a commission as provided in the Code of Civil Procedure, 1908
(5 of 1908).

(3) A copy of the notice under sub-section (2) shall also be served upon
the applicant and upon any relative of the alleged mentally ill person or
other person who, in the opinion of the District Court, shall have notice of
judicial inquisition to be held by it.

(4) For the purpose of holding the inquisition applied for, the District
Court may appoint two or more persons to act as assessors.

51. Issues on which finding should be given by District Court after
inquisition.–On completion of the inquisition, the District Court shall
record its findings on,–

(i) whether the alleged mentally ill person is in fact mentally ill or not,
and

(ii) where such person is mentally ill, whether he is incapable of taking
care of himself and of managing his property, or incapable of
managing his property only.

52. Provision for appointing guardian of mentally ill person and for
manager of property.–(1) Where the District Court records a finding that
the alleged mentally ill person is in fact mentally ill and is incapable of
taking care of himself and of managing his property, it shall make an order
for the appointment of a guardian under section 53 to take care of his person
and of a manager under section 54 for the management of his property.
(2) Where the District Court records a finding that the alleged mentally ill
person is in fact mentally ill and is incapable of managing his property but
capable of taking care of himself, it shall make an order under section 54
regarding the management of his property.

(3) Where the District Court records a finding that the alleged mentally ill
person is not mentally ill, it shall dismiss the application.
(4) Where the District Court deems fit, it may appoint under sub-section
(1) the same person to be the guardian and manager.

54. Appointment of manager for management of property of mentally
ill person.–(1) Where the property of the mentally ill person who is
incapable of managing it is such as can be taken charge of by a Court of
Wards under any law for the time being in force, the District Court shall
authorise the Court of Wards to take charge of such property, and thereupon
notwithstanding anything contained in such law, the Court of Wards shall
assume the management of such property in accordance with that law.

FAO No. 411/2017 Page 6 of 15

(2) Where the property of the mentally ill person consists in whole or in
part of land or of any interest in land which cannot be taken charge of by the
Court of Wards, the District Court may, after obtaining the consent of the
Collector of the District in which the land is situated, direct the Collector to
take charge of the person and such part of the property or interest therein of
mentally ill person as cannot be taken charge of by the Court of Wards.
(3) Where the management of the property of the mentally ill person
cannot be entrusted to the Court of Wards or to the Collector under sub-
section (1) or sub-section (2), as the case may be, the District Court shall
appoint any suitable person to be the manager of such property.

56. Manager of property to execute bond.–Every person who is
appointed as the manager of the property of a mentally ill person by the
District Court or by the Collector shall, if so required by the appointing
authority, enter into a bond for such sum, in such form and with such
sureties as that authority, may specify, to account for all receipts from the
property of the mentally ill person.

57. Appointment and remuneration of guardians and managers.–(1)
No person, who is the legal heir or a mentally ill person shall be appointed
under section 53, 54 or 55 to be the guardian of such mentally ill person or,
as the case may be, the manager of his property unless the District Court or,
as the case may be, the Collector, for reasons to be recorded in writing,
considers that such appointment is for the benefit of the mentally ill person.
(2) The guardian of a mentally ill person or the manager of his property or
both appointed under this Act shall be paid, from out of the property of the
mentally ill person, such allowance as the appointing authority may
determine.

58. Duties of guardian and manager.–(1) Every person appointed as a
guardian of a mentally ill person or manager of his property, or of both,
under this Act shall have the care of the mentally ill person or his property,
or of both and be responsible for the maintenance of the mentally ill person
and of such members of his family as are dependent on him.
(2) Where the person appointed as guardian of a mentally ill person is
different from the person appointed as the manager of his property, the
manager of his property shall pay to the guardian of the mentally ill person
such allowance as may be fixed by the authority appointing the guardian for
the maintenance of the mentally ill person and of such members of his
family as are dependent on him.

59. Powers of manager.–(1) Every manager appointed under this Act
shall, subject to the provisions of this Act, exercise the same powers in
regard to the management of the property of the mentally ill person in
respect of which he is appointed as manager, as the mentally ill person
would have exercised as owner of the property had he not been mentally ill,
and shall realise all claims due to the estate of the mentally ill person and
pay all debts and discharge all liabilities legally due from that estate:
Provided that the manager shall not mortgage, create any charge on, or,

FAO No. 411/2017 Page 7 of 15
transfer by sale, gift, exchange or otherwise, any immovable property of the
mentally ill person or lease out any such property for a period exceeding
five years, unless he obtains the permission of the District Court in that
behalf.

(2) The District Court may, on an application made by the manager, grant
him permission to mortgage, create a charge on, or, transfer by sale, gift,
exchange or otherwise, any immovable property of the mentally ill person
or to lease out any such property for a period exceeding five years, subject
to such conditions or restrictions as that Court may think fit to impose.
(3) The District Court shall cause notice of every application for
permission to be served on any relative or friend of the mentally ill person
and after considering objections, if any, received from the relative or friend
and after making such inquiries as it may deem, necessary, grant or refuse
permission having regard to the interests of the mentally ill person.‖
(emphasis added)

7. Besides the aforesaid provisions there are also other

provisions with respect to dealing with the properties by the

manager/guardian of the mentally ill person, and which are provisions

of Sections 62 to 73 of the Act, and since nothing much turns upon the

said provisions for disposal of this appeal, the same are not being

reproduced in this judgment.

8. A reading of the definition of mentally ill person under

Section 2(l) of the Act shows that a person who is mentally retarded is

not a mentally ill person for the purposes of the Act. Section 50 of the

Act provides that the petition under the Act for holding judicial

inquisition as to a mentally ill person can be made by any of his

relatives. On receiving such an application notices are issued to the

FAO No. 411/2017 Page 8 of 15
person with whom the alleged mentally ill person is residing as also

the mentally ill person himself. As per Section 51 of the Act findings

are given by the District Court after inquisition as to whether the

person alleged to be mentally ill is in fact mentally ill or not and if the

person is mentally ill whether he is incapable of taking care of himself

and/or managing his property or the mentally ill person is only

incapable of managing his property. Depending upon whether a person

is mentally ill and hence cannot take care of his person and/or his

property, a manager of a property is appointed and this is provided

under Section 52 of the Act. As per Section 52 of the Act, a guardian

is appointed both for the person and/or property of mentally ill person

and in case a mentally ill person is only incapable of managing his

property and not his person, a manager is only appointed for his

property. Section 54 Sub-Section 3 of the Act provides that it is only

a suitable person who can be appointed as manager of the property of

the mentally ill person. The provision of Section 56 of the Act requires

that the appointed manager has to execute a bond and the provision of

Section 58 of the Act provides for duties of the guardian and manager.

Section 59 of the Act provides for the powers of the manager. The

FAO No. 411/2017 Page 9 of 15
other provisions thereafter deal with submitting of accounts in Court

or taking permission of the District Court for transfer by way of sale

etc of the property of a mentally ill person.

9. In the present case, the IHBAS has given its report dated

19.5.2016 and which report is authored by Dr. Amit Garg, Assistant

Professor of Psychiatry, Dr. Sumit Kumar Gupta, Assistant Professor

of Psychiatry, Dr. Pankaj Kumar, Assistant Professor of Psychiatry

and Dr. U.K. Sinha, Vice-Chairman of the Medical Board. This report

reads as under:-

―Court: Dr. Shahabuddin, Addl. District Judge- II (N/W), Room
No.317, 3rd Floor, Rohini Courts, Delhi.

Reference: Hon’ble Corut order dated 03.03.2016 vide GP
No.02/2015, Smt. Meenu Seth Vs. Binu Seth.

The patient Binu Seth was examined by the Standing Medical Board at
IHBAS on 18.05.2016 and opined that the client is diagnosed to be
having Borderline Intelligence (ICD Code – R41.83 – other symptoms
and signs involving cognitive functions and awareness) with I.Q. of 78
on Binet-Kamath Test. He is currently able to take care of self
independently, but not of property.

Sd/- Sd/-
(Dr. Amit Garg) (Dr.Sumit Kumar Gupta)
Asstt. Prof. of Psychiatry Asstt. Prof. of Psychiatry
Member Member
Sd/- Sd/-
(Dr. Pankaj Kumar) (Dr.U.K.Sinha)
Asstt. Prof. of Psychiatry Vice-Chairman of
Member Medical Board
Member‖

FAO No. 411/2017 Page 10 of 15

10. For over one year after filing of the report of IHBAS and

till the impugned judgment was passed by the trial court on 9.6.2017

admittedly no objections were filed by the appellant to the report of

IHBAS dated 19.5.2016. Once admittedly no objections are filed

challenging the report of IHBAS, there does not arise any disputed

question of facts requiring trial. I, therefore, reject the argument urged

on behalf of the appellant that the petition could not have been

disposed of without trial.

11. The report of the Medical Board of IHBAS shows that

the patient Sh. Binu Seth/respondent no.1 was capable of taking care

of his person independently, but he cannot take care of his property.

The issue, therefore, was whether the appellant should be appointed as

the manager of the property of respondent no.1/Sh. Binu Seth. In this

regard, the trial court has rightly referred to the provision of Section

54(3) of the Act that only a suitable person can be appointed as a

manager of the property of respondent no.1 and that appellant is not a

suitable person because appellant had not only filed divorce

proceedings alleging acts of cruelty against the respondent no.1 but

also there was one other civil suit/litigation initiated by the appellant

FAO No. 411/2017 Page 11 of 15
against the respondent no.1. It is noted that admittedly the divorce

petition filed by the appellant against respondent no.1 was withdrawn

although respondent no.1 was ex-parte. Another suit being Suit

No.255/2011 was filed by the appellant in the court of the Civil Judge,

Rohini, Delhi for injunction and in which respondent no.1 was a

defendant. Accordingly, the trial court has rightly held that appellant

cannot be a suitable person under Section 54 (3) of the Act to take care

of the property of the respondent no.1.

12. The trial court by the impugned judgment has held that

there are no individual properties of Sh. Binu Seth and even assuming

there are joint family properties, the appellant is not a suitable person.

It is seen that really the endeavour of the appellant is to take control of

the joint family properties and that failure of the appellant in the

subject petition under the Mental Health Act will not mean that the

appellant is in any manner prevented from filing any suit seeking to

enforce her right as a member of the joint family assuming that there

exists a Joint Hindu Family/Hindu Undivided Family (HUF). Thus the

appellant is not in any manner prejudiced as she can always file a suit

seeking her rights in HUF properties assuming that there is an HUF,

FAO No. 411/2017 Page 12 of 15
and which aspect will only be considered when the appellant initiates

a civil suit in an appropriate Court for appropriate reliefs.

13. Though learned counsel for the appellant argued that the

trial court could not have on the basis of questions put to respondent

no.1 and taking his answers held that respondent no.1 was not a

mentally ill person, however, this argument is only valid at the first

blush because when we delve into the issue it is seen that actually the

impugned judgment is independently based on the report of the

Medical Board of IHBAS dated 19.5.2016. Some of the relevant

observations of trial court for dismissing the petition are contained in

paras 10 to 13 of the impugned judgment and these paras read as

under:-

10. In view of such report of medical board, coupled with examination
of Sh. Binu Seth conducted earlier before this Court, as per provisions of
Section 50 of MH Act, further coupled with entire facts and circumstances
of this case, this Court is of the considered opinion that Sh. Binu Seth is not
suffering from any mental disorder and cannot be considered as mentally ill
person as per Section 2(l) of MH Act. In the further considered opinion of
this Court, he is simply suffering from some sort of mental retardation.
For these reasons, in the further considered opinion of this Court,
there is no need for appointing any guardian, qua his person.
To this extent, there is no merit in the petition under discussion for
appointing petitioner as guardian of person of Sh. Binu Seth.

11. As regards the other relief claimed in this petition, qua seeking
appointment of petitioner as manager for the properties, coming to the share
of Sh. Binu Seth, this court is prima-facie of the considered opinion that
petitioner has miserably failed to satisfy this Court, by putting any relevant

FAO No. 411/2017 Page 13 of 15
papers/documents on record, to the effect that Sh. Binu Seth has any
property independently in his name at present.

12. For the sake of arguments, if it is presumed that there are certain
joint family properties, in which Sh. Binu Seth has also some share, even in
that situation, to the considered opinion of this Court, the petitioner is not
found to be a suitable person, as per mandate of Section 54(3) of MH Act,
so as to appoint her as manager, qua such properties. It is due to the reason
that there are bitter relations between the parties herein and particularly
between petitioner and her husband Sh. Binu Seth. As per record, these
parties are involved in various litigations and in some of these litigations,
even Sh. Binu Seth has been joined as opposite party by the petitioner
herein. Certified copy, as annexure R-1, has been filed on record, on behalf
of respondents, pertaining to suit for permanent injunction reportedly filed
in year 2011 by Smt. Meenu Seth i.e., petitioner herein in the Court of Ld.
Senior Civil Judge, Rohini Courts, Delhi in which Sh. Binu Seth has also
been joined as defendant No. 1 therein, besides respondents herein as
defendants No. 2 and 3 respectively. A certified copy of a divorce petition
under HM Act bearing HMA No. 514/2011, has also been filed on record,
on behalf of respondents, which was also reportedly filed by petitioner
herein in year 2011, u/s 13 of HM Act against her husband Sh. Binu Seth,
seeking divorce from him on the ground of cruelty as mentioned in detail in
this petition. Due to involvement of parties herein in various litigations,
including those mentioned above, this Court is of the considered
opinion that there are no cordial relations even between petitioner and her
husband Sh. Binu Seth so as to treat the petitioner as suitable person for
being appointed as manager of properties of Sh. Binu Seth, qua his share
therein, as per mandate of section 54(3) of MH Act.

13. For the above mentioned reasons, coupled with entire material on
record, the petitioner herein not found entitled to claim any relief, qua this
petition. Hence, the petition under discussion is found to be devoid of any
merits and the same is hereby dismissed. In the given facts and
circumstances of this case, parties herein to bear their own costs, qua this
petition. Judicial file be consigned to Record Room as per rules, after
necessary compliance.‖

14. In my opinion, therefore, there is no merit in the appeal

and the same has to be dismissed. I may note that the Mental Health

Act, 1987 has been replaced with effect from 7.4.2017 by the Mental

Healthcare Act, 2017, however, Section 126 of the Mental Healthcare

FAO No. 411/2017 Page 14 of 15
Act, 2017 as per its Sub-Section 2(f) provides that though the Mental

Health Act, 1987 is repealed but any proceedings pending in any

Court under the repealed Act of 1987 is to be continued as if the 2017

Act has not been passed. Therefore, this appeal will lie under Section

76 of the 1987 Act and the trial court was entitled to pass the judgment

under the 1987 Act.

15. Dismissed. Parties are left to bear their own costs.

OCTOBER 27, 2017 VALMIKI J. MEHTA, J
godara/ak

FAO No. 411/2017 Page 15 of 15

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