Through this appeal under Section 46 of the Mental Health Ordinance, 2001, the appellant has challenged the validity of an order dated 05.05.2021, whereby the learned Additional District Judge/Court of Protection, Lahore accepted the application under Section 41 read with Section 37 of the Ordinance ibid filed by respondent No.2 namely Shazia Daultana, and order dated 11.08.2021 passed by the learned Additional District Judge/Court of Protection, Lahore, whereby the appellant's application for disposal of the case on the plea of death of the mentally disordered person was dismissed.
2. Brief facts of the case are that one Imran Daultana s/o Shaukat Ali Aqeel/respondent No.4, filed a petition under Section 29 of the Mental Health Ordinance, 2001 for the appointment of guardian of person and manager of properties of Begum Aqeela Daultana. The said application was accepted by the learned Additional District Judge/Court of Protection, Lahore, on 26.04.2017 and with the consent of the parties, Mian Zahid Daultana, the appellant, was appointed as guardian of person and manager of properties of Begum Aqeela Daultana. Thereafter , amended certificate of guardianship was issued on 09.05.2018.
3. Mst. Shazia Daultana, respondent No.2/daughter of Begum Aqeela Daultana filed an application on 01.07.2020 under Section 41 read with section 37 of the Ordinance ibid for removal of the guardian and manager of properties of Begum Aqeela Daultana on the ground of non-fulfillment of his duties as well as embezzlement and misappropriation in assets of the mentally disordered lady, holding of forensic audit of the entire financial affairs from 22.01.2017 and also prayed for her (the respondent No.2) appointment as guardian and manager of properties of her mother (mentally disordered lady).
The appellant contested the said appli cation by filing reply thereto denying the allegation contained in the application. The learned Additional District Judge/Court of Protection on 05.05.2021 accepted the said application, appointed Anwar Tariq & Company for the forensic audit of income and expenditures of Aqeela Daultana and Nadeem Daultana, suspended the guardianship certificates dated 22.07.2017 & 09.05.2018 and appointed Shazia Daultana, respondent No.2 as interim guardian and manager of properties of Begum Aqeela Daultana.
The appellant filed an application on 07.08.2021 for disposal of the case with the assertion that Begum Aqeela Daultana has expired on 21.07.2021 and after her death, the Court of Protection has no jurisdiction to proceed further with the matter as the said proceedings stand abated automatically . The said application was dismissed by the learned Additional District Judge/Court of Protection, Lahore, vide impugned order dated 11.08.2021. Hence, this appeal.
4. I have heard the arguments of learned counsel for the appellant and have gone through the record with his able assistance.
5. A Court of Protection on the application may appoint guardian and manager of properties of a mentally disordered person under Section 32 & 33 of the Mental Health Ordinance, 2001. For ready reference, aforesaid provisions are reproduced as under:
32. Appointment of guardian.- Where a mentally disordered person is incapable of taking care of himself, the Court may appoint any suitable person to be his guardian, or order him to be looked after in a psychiatric facility and order for his maintenance.
33. Management of property of mentally disordered person .- (1) Where the property of the mentally disordered person who is incapable of managing it, the Court shall appoint any suitable person to be the manager of such property .
(2) No person, who is a legal heir of a mentally disordered person, shall be appointed under section 32 to be the guardian of such a person or the manage r of his property , as the case may be, unless the Court for reasons to be recorded in writing considers that such appointment is for the benefit of the mentally disordered person.
(3) The guardian of a mentally disordered person and the manager of his property appointed under this Ordinance shall be paid, from out of the property of the mentally disordered person, such allowance as the Court may determine.
In section 34 & 37 of the Ordinance ibid the obligations of the guardian/manager of a mentally disordered person has been described which provisions are as under:-
34. Responsibility of manager. A person appointed as a manager of the property of a mentally disordered person, under this Ordinance, shall be responsible for the care, cost of treatment and maintenance of the mentally disordered person and of such member(s) of his family as are dependent on him.
37. Furnishing of inventory of immovable property, etc.- (1) Every manager appointed under this Ordinance shall, within a period of three months from the date of his appointment, deliver to the Court an inventory of the immovable property belonging to the mentally disordered person and of all assets and other movable property received on behalf of the mentally disordered person, together with a statement of all claims due on and all debts and liabilities due by such a person.
(2) All transactions under this Ordinance shall be made through a bank authorized by the Court.
(3) Every such manager shall also furnish to the Court within a period of three months of the closure of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally disordered person and the balance remaining with him.
(4) If any relative of a mentally disordered person impugns, by a petition to the Court, the accuracy of the inventory or statement referred to in sub-section (1) or, as the case may be, any annual account referred to in sub-section (3), the Court may summon the manager and summarily inquire into the matter and make such order thereon as it thinks fit.
(5) Any relative of a mentally disordered person may, with the leave of the Court, sue for an account from any manager appointed under this Ordinance or from any such person after his removal from office or trust, or from his legal representatives in the case of his death, in respect of any property then or formerly under his management or of any sums of money or other property received by him on account of such property . (emphasis supplied)
6. Admittedly with the consent of the parties, the appellant was appointed on 26.04.2017 as guardian of person and manager of properties of Begum Aqeela Daultana, a mentally disordered lady subject to some terms and conditions. The operative part of the aforesaid order is reproduced as under: "8. On the basis of material brought on record including statements of petitioner, respondents and the doctor coupled with the report of the Standing Medical Board PIMH, while exercising powers under section 32 and 33 of the Ordinance ibid, Mian Zahid Daultana (respondent No.3) is hereby appointed as guardian of the person and manager of the properties of Begum Aqueela Daultana (respondent No.1) subject to following terms and conditions: I. That he shall furnish surety bond in sum of Rs.50,00,000/- with one surety in the like amount binding himself and the surety for the purpose of carrying out and discharging his responsibility , duties and liabilities in accordance with terms and conditions mentioned in this order as well as in accordance with the provisions of the Ordinance ibid; II. That he shall be responsible for the care, cost of treatment and maintenance of Begum Aqueela Daultana and shall also be responsible for the proper management of her properties; III. That he shall, within a period of three months from the date of his appointment, deliver to the Court an inventory of the immovable properties, all assets and other movable properties of Begum Aqeela Daultana together with a statement of all claims due and all debts and liabilities due; IV. That his appointment as guardian of the person and manager of the properties of Begum Aqueela Daultana shall be on yearly basis extendable after every financial year subject to furnishing to the Court within a period of three months of the closure of every financial year: a. Fresh medical certificate from Standing Medical Board of PIMH with respect to assessment of mental health of Begum Aqueela Daultana; and b. An account of the properties and assets in his charge, the sums received and disbursed and the balance remaining with him. (emphasis supplied)
The aforesaid order dated 26.04.2017 was later on amended by the learned Court of Protection, Lahore, on 09.05.2018 with the following observations: Vide order . dated 26/04/2017 7this court while deciding application with regard to appointment of Guardian & Manager of person and property of Begum Aqeela Daultana on the basis of consent accorded by all the near relatives, you, the respondent No.3 named above have been appointed as Guardian & Manager of Person & Property of your mother Begum Aqeela Daultana who is suffering from mental disorder within the meanings of Section 20(1)(m) of the Mental Health Ordinance 2001. Now, through this certificate you shall be responsible for the care, cost of treatment and maintenance of said person. You shall also be responsible for the proper management of her share in the following properties (Property No.(vii) included through amendment made vide order dated 09/05/2018) i. Kothi No.12-K measuring 14M. and 71-Sq. ft. situated at Gulberg-II Lahore. ii. Bangla No. 37, measuring 15063.59 (3.279 acre) situated at Furhil Murree. iii. Land measuring 713K, 5-M Khewat No. 1/1, Khatoni No.1 to 3 situated at Mauza Daulat Abad, V ehari. iv. Land measuring 32-K, Khewat No.13/1 1, Khatoni No.20 to 22 situated at Mauza Daulat Abad District V ehari. v. Land measuring 96-K Khatoni No.289 to 291 Khasra No.16 situated at Mauza Ludon, V ehari. vi. Land measuring 1-K and 18-M, Khewat No.24, Khatoni No.292 situated at Mauza Ludon, V ehari (Property No.(vii) included through amendment made vide order dated 09/05/2018) vii. House bearing: No, 23, Block-E/2, Gulberg III, Lahore, total measuring 9-K, 5-M and 14-sq.ft. (to the extent of legal Shari Share. of Begum Aqueela Paultana (mentally handicapped lady)
MOVEABLE ASSETS/OTHER MOVEABLE PROPERTIES. i. Askari Bank Lahore Account No.1320100003133 Rs.22,122,600/-. ii. Slandered Chartered Bank Account No.01734075301 Rs.34,000/- iii. Standard Chartered Bank Account No.01792918801 Rs.203,526/- iv. Standard Chartered Bank Account No.01793287101. Rs.23,78,770/- v. Cash Rs.67,930/- Investments i. Linde Pakistan Limited (Share) number 35,582 (Amendment made vide order dated 09/05/2018) ii. Chenab Textile Mills, Lahore (to the extent of member and debenture holder of 37,575 share of Begum Aqeela Daultana mentally handicapped lady), NIT UNITS i. Alfalah Building Account (Units) number 88,982 ii. Standard Chartered Bank Account No.52822 (units) number 34,573 iii. Standard Chartered Bank Account No.52822 (Units) number 15798.
This certificate shall be subject to. the following terms and conditions:- I. That you and your surety are bound for the purpose of carrying out and discharging your responsibility , duties and liabilities in accordance with timers and conditions mentioned in order dated 26/04/2017 as well as in accordance with the provisions of the Mental Health Ordinance, 2001.
II. That you shall be responsible for the care cost of treatment and maintenance of Begum Aqueela Daultana and shall be responsible for the proper management of the properties; III. That you shall within a period of three months from the date of your appoi ntment, deliver to the court an inventory of the immovable property , all assets and other movable property of Begum Aqueela Daultana together with a statement of all claims due on and all debts and liabilities due; IV. that this appointment of you as 'guardian of the person and manager of the properties of Begum Aqeela Daultana shall be on yearly basis extendable after every financial year subject to furnishing to the court within a period of three months of the closure of every financial year:- a. Fresh medical certificate from Standing Medical Board of PIMH with respect to assessment of mental health of Begum Aqeela Daultana; and b. An account of the property and assets in your charge, the sums received and disbursed and the balance remaining with you.
And you shall observe other restrictions as are mentioned in Chapter-V of Mental Health Ordinance, 2001.
(emphasis supplied)
7. Under Section 41 of the Ordinance ibid, the Court of Protection has the powers to remove a manager or guardian of a mentally disordered person, appoint a new one and also to make accountable the ex- manager for all the amounts received or disbursed by him. For ready reference, aforesaid provision is reproduced as under:
41. Appointment of a new manager or guardian.- (1) The manager of the property of a mentally disordered person may resign with the permission of the Court, or for sufficient cause and for reasons to be recorded in writing, be removed by the Court and such Court may appoint a new manager in his place.
(2) Any manager removed under sub-section (1) shall be bound to deliver the charge of all property of such a person to the new manager , and to account for all monies received or disbursed by him.
(3) The guardian of the person of a mentally disordered person may resign with the permission of the Court, or for sufficient cause and for reasons to be recorded in writing, be removed by the Cour t and such Court may appoint a new guardian in his place. (emphasis supplied)
8. So far as the argument of the learned counsel for the appellant that after the death of the mentally disordered person, all the proceedings emerging out of the guardianship of the mentally disordered person' s assets & properties stands abated, suffice it to say that where the right to sue is still in existence as enunciated under Section 41(2) of the Ordinance ibid read with Order 22 C.P.C, the proceedings remain continue and do not abate.
Moreover , admittedly the custody of assets of an incapacitated/ mentally disordered person is a sacred trust and guardian / manager is placed under extraordinary stringent obligation to maintain the accurate accounts or use the same with honest care & caution and court which is the ultimate legal custodian/guardian of the mentally disordered person' s assets/property , has the jurisdiction to scrutinize the transparent utilization of the assets and under the law, the guardian/manager is placed under unalienable obligation to furnish meticulous details of assets/properties, income whereof and expenditures for the period he remained custodian of mentally disordered person, and death of the disordered person or removal of the guardian does not absolve guardian/ manager from his responsibility to avoid the tendering of the income/expenditure detail statement. But herein in this case the appellant did not fulfill the terms and conditions of the order dated 26.04.2017 & 09.05.2018 as well as the plain provision of Section 37 of the Ordinance ibid which resulted into his removal from the guardianship on the basis of the serious allegation of embezzlement and misappropriation of mentally disorde red person 's assets during his period of manager-ship. The court has vast jurisdiction to ascertain the transparent utilization of the assets / property of the mentally disordered person and may adopt any modus operandi to obtain report including the expert opinion for its conscious satisfaction and in this regard it may pass an appropriate order as the court thinks fit. The learned Court of Protection appointed a chartered account firm for holding forensic audit of the assets, income and expenditures, liability/ debt of Begum Aqeela Daultana and Nadeem Daultana. As per report of the said firm certain misappropriation/discrepancies have been committed by the appellant. The appellant has filed objections on the said report which are still pending before the learned Court of Protection, Lahore. Though Mst. Aqeela Begum has expired on 21.07.2021 but her guardian/ manager is under inescapable bounded obligation to tender complete statement of account of assets, income and expenditure etc. of the mentally disordered lady as required under the law as well as orders dated 26.04.2017 and 09.05.2018, as such it can conveniently be observed that the learned Court of Protection, Lahore, is competen t under section 37, 41(2) read with Section 52 of the Ordinance ibid to direct the guardian/manager to furnish the requisite detail or appoint any commission/expert in this regard to obtain correct information whether the appellant has fulfilled his obligations and any defiance, if found on the part of the guardian/manager , shall invite the invocation of penal provisions of law .
9. Learned counsel for the appellant has not been able to point out any illegality , material irregularity or jurisdictional defect in the impugned orders calling for any interference through this appeal.
10. In view of above, instant appeal being devoid of any merits is hereby dismissed in limine . However , the learned Court of Protection is directed to decide the matter as early as possible in accordance with law .