' SYED HAMID ALI SHAH, J.---Brief facts as set out in petition before the learned Additional District Judge are that Umar Hayat son of Ghulam Haider resident of Sohawa Jumlani, Tehsil Phalia, District Mandi Baha-ud-Din is the owner of land measuring 101 Kanals in the said village. The appellant being his real brother controls and cultivates the said land. Umar Hayat is unsound mind and not incapable of managing himself, his affairs and his property, who remained frequently in the mental hospital for his treatment. Appellant represented Umar Hayat in capacity of his guardian ad litem in the proceedings for the dissolution of marriage instituted against Umar Hayat by his wife Zahida Perveen, which ended into a decree for dissolution of marriage.
2. The petition moved by the appellant under section 62 of the Lunacy Act, (IV of 1912), was contested by the respondents, who submitted written statement and denied that Umar Hayat is unsound mind. Out of the divergent pleadings of the parties, learned Court framed 4 (four) issues and fixed the case for recording of evidence. Learned Court passed orders dated 21-11-1994 wherein the appellant was directed to produce Umar Hayat on 28-11-1994 and also the documents of the property, owned by him. Learned trial Court on failure of the appellant to produce alleged lunatic in the Court and taking into consideration that the land vesting in him, has already been decreed in favour of respondent No,1 vide judgment and decree dated 26-1-1991, dismissed the petition being misconceived and for non-compliance of the order dated 21-11-1994. The instant appeal is directed against the order dated 14-3-1995.
3. During the pendency of the appeal lunatic was produced in this Court on 10-3-1998 and was examined. Umar Hayat was unable to tell where he lives. He was unaware of his marriage, issues and knew nothing about his divorce. He was ignorant as to the fact that he owns any property.
4. Learned counsel for the appellant has contended that the appellant being the brother of the lunatic has no interest adverse to the interest of Umar Hayat. The medical evidence produced before the Court regarding the admission of Umar Hayat in mental hospital coupled with his incapacity to contest the suit for dissolution of the marriage sufficiently proved that Umar Hayat is person of unsound mind and incapable of managing himself, his affairs and his property. The proceedings before the trial Court under section 62 of the Lunacy Act are inquisitorial and it is the duty of the Court to proceed in the matter to safeguard the property of that person, irrespective of the fact whether any evidence has been brought by a party or not. The dismissal of the petition is against the object and purposes of Lunacy Act.
5. Learned counsel for the respondent, on the other hand has fully supported the impugned order and has submitted that there was no proof with the Court that alleged lunatic was unsound mind and possessed any property which he was not capable of managing. The appellant was provided ample opportunities but failed to produce the alleged lunatic as well as any proof of his property and the petition was rightly dismissed by the Court. It was further submitted that the appellant has made a statement in the suit titled as "Farrukh Bibi etc. v. Sher Muhammad etc." that Umar Hayat has gifted his property to his minor children. The object of filing the petition is mala fide to grab the property of the alleged lunatic. Umar Hayat is a sane person and the medical certificate is false and fabricated.
6. Heard learned counsel for the parties and perused the record.
7. Learned trial Court proceeded in the matter treating the petition under section 62 of the Lunacy Act (IV of 1912), as an ordinary civil suit where the parties are to prove their respective claims, according to the law and provisions of Qanun-e-Shahadat, 1984. But the Court under the Lunacy Act is not an ordinary Court. It has the power of pater patria the jurisdiction and the power of this Court are akin to that of Court under the Guardians and Wards Act. The Courts in such proceedings have inherent power and prerogative to act as prudent and natural parent of an infant or an unsound mind. The proceedings under section 62 of the Act are inquisitorial, where it is the primary duty of the Court to hold inquiry and find out whether a person is a lunatic and if so, his person and property be protected. The Court in such cases is required to make appropriate arrangements for the custody of such person as well as his property. The Court is not to see which party A before the Court has proved its case on its merits but to see whether the person who is claimed to be incapable of managing himself, is in fact incapacitated. If it is brought to the notice of Court that a person is unsound and a petition as to his inquisition has been filed, the Court itself has to summon the alleged lunatic, examine him by asking him easy questions of his daily routine and, in case it is needed, a direction for medical examination of such person can be ordered by the Court.
8. The impugned order of learned Additional District Judge is erroneous; for the Court has treated the petition under section 62 of the Lunacy Act, 1912 as an ordinary lis between the two parties. The Court is to inquire and find out as to whether Umar Hayat was indeed a lunatic and to ascertain it, he should have been examined by the Court or the Court may have directed his medical examination. The dismissal of the petition through impugned is wholly unjustified. Since Umar Hayat has been examined by this Court on 10-3-1998 and the examination reveals that prima facie Umar Hayat is not capable of managing his person and property. It will be in the fitness of the things that Umar Hayat be placed under supervision of appropriate doctor for a reasonable time to ascertain through report of the medical specialist (psychiatrist) qua the mental capacity and unsoundness of his mind. The Court after the medical examination can record evidence in this connection for its satisfaction and if it is found that Umar Hayat is not capable of managing, his person and property then appoint a proper person for arrangement of the safety of the person of the alleged lunatic and management of his property.
9. The arguments of the learned counsel for the respondents that the property of Umar Hayat has since been transferred through a decree of the Court, have rendered the proceedings under section 62 of the Lunacy Act, 1912, as infructuous, is not well-founded. A lunatic is not a capable to contract and any transaction statedly made by him is a void transaction and as such does not confer any right to a third party.
10. For the foregoing this appeal is allowed and the judgment .And order of the learned Additional District Judge s set aside, the case is remanded back to the learned trial Court for determination of the question involved in this case, in the light of above observations.