' This order will dispose of the objection raised by this Court as well as the application filed by the defendant No,1 under Order VII, Rule 11, C.P.C. (C.M.A. No,4493/95). On 2-1-1995, when this case came up for hearing of the injunction application before my learned brother Mr. A.R. Kazi, J. (as he then was) it was observed by him that how this suit is maintainable and how the relief sought in the suit can be granted? However, the case was adjourned at the request of the learned counsel for the plaintiff to answer the question as raised by this Court.
2. This is a suit for administration for the property and estate of the defendant No,
1. The plaintiff is the real son of the defendant No,
1. Besides plaintiff, the defendant No,1 has a wife, three other sons and two daughters which fact the plaintiff has admitted in the plaint. The case of the plaintiff is that the defendant No,1, who is his real father, is aged about 72 years and is suffering from disease of serious nature like hallucination, paranoid, headache, drowsiness, confusion, irritable, uncooperative, blood sugar level, diabetic Neuropathy etc. Which resulted in mental disorder of the defendant No,1; that the defendant No,1 is maintaining a dollar account with the American Express Bank at Karachi and that it has become necessary that the plaintiff or any of his children be appointed as an administrator of the defendant No,1 to look after him, take decision on his behalf particularly with his finances to control and look after his account. Following is the relief claimed by the plaintiff in the suit:-- "(a) to appoint all of the children or any one of them to act as an Administrator of the defendant No,1, his estate, properties, Bank accounts, with authority to continue the day to day business and work administer the finances of the defendant No,1 and to employ the same for his benefit;
(b) restrain the defendants, his agents, or any person or persons, bank or banks to withdraw any amount from the bank accounts mentioned $ above."
3. Mr. Abdul Waheed Siddiqui, Advocate for defendant No,1 has strenuously argued that the plaint is liable to be rejected as it is barred under section 42 and section 54 of the Specific Relief Act and that the suit is also bad for non joinder of the proper and necessary parties. He has relied upon the cases of Sadbar Khan v. Amir Hussain and another (PLD 1995 Pesh. 14); Maugh Kya Yan and another v. Maung Tha E. (AIR 1936 Rangoon 121) and Munshi Abdul Ghani and another v. Protiva Rani Devi (PLD 1952 Dacca 450). Mr. Abid S. Zuberi in his well-prepared argument has supported the plea of defendant No,1 that the plaint is liable to be rejected as it is without cause of action as well as it is also barred under the provisions of the Lunacy Act, 1912.
4. From perusal of the contents of the plaint in the above suit, it appears that this is a suit for administration filed by a son for the administration of the estate and properties of the defendant No,1 who is his father and is still alive. He has not impleaded wife, other sons and duaghters in this suit. It is argued that there is no specific provision in the Civil Procedure Code governing the law for the suits for administration and that from the perusal of Order XX, Rule 13, C.P.C. It indicates that suit for administration generally lies for the determination of the estate and properties of a deceased person. In this regard, Mr. Zuberi has placed reliance on the cases of Yusuf Abbas and others v. Mst.
Ismat Mustafa and others (PLD 1968 Karachi 480), Muhammad Sulaiman Malik and another v.
Royal Trust Corporation of Canada and 2 others (PLD 1983 Karachi 382) and the case of Syed Mehdi Hussian Shah v. Mst. Shadoo Bibi and others (PLD 1962 SC 291).
5. The term "lunatic" has been defined in section 3 of the Lunacy Act (IV of 1912). This law provides for the control and regulation of the person and properties of a lunatic through various forums and procedure. It would be advantageous, if sections 62, 65 and 67 of the said Act 1912 are repioduced hereunder:-- "62. Power of District Court to institute inquisition as to person alleged to be lunatic.--Where any person is possessed of property and is alleged to be a lunatic, the District Court, within whose jurisdiction such person is residing may, upon application, by order direct an inquisition for the purpose of ascertaining whether such person is of unsound mind and incapable of managing himself and his affairs.
65. Inquisition by District Court and finding thereon.--(1) The District Court, if it thinks fit, may appoint two or more persons to act as assessors to the Court in the said inquisition.
(2) Upon the completion of the inquisition, the Court shall determine whether the alleged lunatic is of unsound mind and incapable of managing himself and his affairs or may come to a special finding that such alleged lunatic is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others.
67. Custody of lunatics and management of their estates.--(1) The Court may make orders for the custody of lunatics so found by inquisition and the management of their estates.
(2) When upon the inquisition it is specially found that the person to whom the inquisition relates is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others, the Court may make such orders as it thinks fit for the management of the estate of the lunatic including proper provisions for the maintenance of the lunatic and of such members of his family as are dependent on him for maintenance, but it shall not be necessary to make any order as to the custody of the person of the lunatic."
6. In the case of Habibullah Mian v. Golam Rahman (PLD 1960 Dacca 958), a learned Single Judge of Dacca High Court, after considering the case-law reported as Mozaharuddin Khan v. Serajuddin Khan (4 CLC 115), Upendra Mohan Ray Chowdhory v. Negendra Mohan Ray Chowdhory (90 IC 878) and the case of Cowasji Bomani Lilaoovala (7 Born. 15), held that two things are to be determined by a District Judge in an inquisition proceedings under the Lunacy Act, firstly, that alleged lunatic is of unsound mind of such a degree that he is incapable of managing himself and his properties and that though he might not be dangerous to himself or to the public but is incapable of managing his own affairs. For any further reference, see the cases of Muhammad Amin Khan v.
General Public and others (1991 CLC 394), Allah Rakha v. Shahbaz Ahmed and 6 others (1994 MLD 1160) and an elaborate judgment of Mr. Aftab Hussain, J. (as he then was) in the case of Mst. Jamila Begum v. Awam-un-Nass and others (PLD 1978 Lahore 1376). In a recent case of Sadbar Khan v.
Amir Hussain and another (PLD 1995 pesh. 14), a learned Single Judge of a Peshawar High Court held that it is the Court of District Judge competent to appoint guardian and manager of person and property of a lunatic as per provisions of the Lunacy Act, 1912 and that the Civil Courts have no jurisdiction in this matter.
7. The case-law referred to by Mr. Abdul Waheed Siddiqui is not relevant in the facts of the present case as the rule laid down in both these cases pertains to a suit filed on behalf of a lunatic through his next friend. In the case of Maung Kya Yan and another v. Maung Tha E (AIR 1936 Rangoon 121), it was held that a suit filed by the next friend is maintainable only if the lunatic is such person who has been adjudged to be of unsound mind or a person who is found by the Court on inquiry that such person is of unsound mind or mentally infirm. Likewise, in the case of Munshi Abdul Ghani and another v. Protiva Rani Devi and others (PLD 1952 Dacca 450), it was held by a learned Single Judge of the Dacca High Court that it must be found first, on a properly held inquiry, that by reason of unsoundness of mind or mental infirmity, the persons on whose behalf the suit has been filed is incapable of protecting his interest as plaintiff. In the present case, this principle is not involved as the suit has not been filed by the next friend on behalf of a person who is of unsound mind or suffering from insanity. However, it will be pertinent to note that the plaintiff who has admitted that the defendant No,1 to be of unsound mind and suffering from mental disease should have filed this suit against such defendant through some next friend which care was not taken by the plaintiff.
Neither the plaintiff has joined his brothers, sister, and mother as co-plaintiff nor as the defendants in the above suit.
8. The Lunacy Act, 1912 was enacted to deal with the person and property of lunatics, idiot and of persons of unsound mind in the same manner as of the law of Guardians and Wards Act, 1890. It was held in the case of Mst. Jamila Begum (supra) that this Act confers upon the Courts the power of pater patriae as a father over his children. Section 2 of the Act, 1912 is a saving clause which provides that nothing contained in sections 4 to 36 (Part II) shall be deemed to affect the powers of any High Court over any person found to be a lunatic by inquisition or over the property of such lunatic, or the rights of any person appointed by such Court as guardian of the person or manager of the estate of such lunatic. It is pertinent to note that sections 62 to 83 fall within Part III of the Act, 1912 through which the District Courts have been authorised to deal with the person and property of a lunatic. By virtue of section 62, a District . Court is empowered to direct inquisition for the purpose of ascertaining whether a person against whom a petition has been filed is an idiot or of unsound mind and whether such person is incapable of managing himself and his affairs. Further, action of the learned District Courts. Is dependent on the positive finding as to the fact whether such person is a lunatic. This is the main object of the inquisition as provided in section 62. Section 63 provides that any relative of the alleged lunatic or any public curator appointed under the Succession (Property Protection) Act, 1841 or the Government Pleader as defined in the Code of Civil Procedure is entitled to apply for inquisition. In section 64 it is provided that the provisions of sections 40, 41 and 42 shall regulate the proceedings of the District Court. Section 65 empowers a District Court, if it thinks fit, to appoint two or more persons to act as assessors in the inquisition proceedings.
Subsection (2) to section 65 provides that the District Court shall determine, firstly, whether the alleged lunatic is of unsound mind and is incapable of managing himself and his affairs or that he is capable of managing himself and is not dangerous to himself or to others. In case, if an alleged lunatic is residing fifty miles from the place where the District Court is situated then section 66 provides that the District Court will be competent to issue commission to subordinate Court to make inquisition and to send its report back to the High Court which will dispose of the same in the manner provided under section 65(2). After completion of the inquisition proceedings if the District Court comes to the positive finding then under section 67, the District Court is empowered to make orders for the custody of lunatics and for the management of their estate. The procedure provided in the Lunacy Act, 1912 is comprehensive and exclusively empowers the District Court to declare a person of unsound mind as lunatic and to appoint manager of his person and property. The Legislators have not excluded the provisions as contained in Part III of the Lunacy Act and I am, therefore, of the opinion that it is the District Court which is fully authorised and competent to hold inquiry to declare any person as lunatic and to appoint manager of his person and property. I am further fortified in my view by a case-law reported as Rambhabai v. Rukminibai and another (AIR 1957 Madhya Bharat 96) wherein a Division Bench of Indore Bench held that it is the District Judge competent to declare any person to be lunatic and thereafter is empowered to appoint a manager and to entrust to him for management of the estate of the lunatic.
9. For the law as discussed hereinabove and in view of the provisions of the Lunacy Act, 1912 the jurisdiction in a matter, as alleged in the present suit, is vested in the District Courts. Therefore, I am of the considered view that a Civil Court under its ordinary jurisdiction is not competent to declare a person to be lunatic or of the unsound mind in a suit brought under section 42 of the Specific Relief Act, 1877 and/or to appoint any Administrator or Manager of his properties. Therefore, this suit appears to be barred in view of the Lunacy Act, 1912.
10. Today, when this case was fixed for announcement of the order, Mr. Raja Qureshi, learned counsel for the plaintiff filed a statement on behalf of the plaintiff that he has been instructed to withdraw the suit prior to announcement. He argued that the rejection of plaint may cause some bitterness in the family. Both the learned counsel appearing for the defendants have not opposed this request of Mr. Raja Qureshi. I, therefore, grant his prayer for withdrawal of suit and thus Suit No,862 of 1994 is hereby dismissed as withdrawn with no order as to cost. However, the observation made hereinabove, on the question of law will not be effected by withdrawal of the suit.
Consequently, C.M.A. 4493/95 has become infructuous which is accordingly dismissed.