Final Order 1

Order Details: Copy of Judgment
Pdf Text: Presented on : 28/06/2018
Registered on : 04/08/2018
Decided on : 05/02/2019
Duration : 00Y 07M 08D
Exhibit: 5
IN THE COURT OF SESSION FOR GREATER BOMBAY, BOMBAY.
MENTAL HEALTH PETITION NO.351 OF 2018
CNR NO.: MHCC010077292018
(In the matter of appointment of Guardian and Manager of the estate of
mentally ill person Mrs. Kashmira Kamlakant Joshi.)
1. Dr. (Mrs.) Devyani Girish Joshi ] PETITIONERS
Hindu, Aged: 69 years, Occ.: Medical ]
Practitioner, the sisterinlaw of the ]
Mentally Ill Person, R/o.: 72, ''Vijay'' ]
Building, Jain Mandir Marg, ]
Mumbai – 400 022. ]
2. Mr. Girish Chhotalal Joshi ]
Hindu, Aged: 71 years, Occ.: Business, ]
the brotherinlaw of the Mentally Ill ]
Person, R/o.: 72, ''Vijay'' Building, ]
Jain Mandir Marg, Mumbai – 400 022. ]
APPEARANCE:
Mr. Mukesh Talsania, Advocate for the Petitioners.
PETITION FOR APPOINTMENT OF GUARDIAN
CORAM : SHRI S.V. YARLAGADDA, JUDGE.
(Court Room No.54)
DATE : 5th February, 2019.
O R D E R
(Dictated and pronounced in open Court)
Mrs. Kashmira Kamlakant Joshi, aged about 78 years is the
widow of petitioner no.2's brother Kamlakant. Petitioner no.1 is the
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wife of petitioner no.2. Kamlakant died on 20.01.2017. His elder
daughter Mrs. Arti Pulin Chandaria died on 23.01.2015. Second
daughter Mrs. Shilpa Hiren Zaveri died on 19.06.2017. Elder daughter
Mrs. Meenakshi Raj Chandaria is a Canadian citizen. According to the
petitioners and Mrs. Meenakshi Chandaria, the latter is the only ClassI
heir of Mrs. Kashmira Joshi. They filed this petition contending that
Mrs. Kashmira Joshi is suffering from mental illness of Alzheimer which
is a type of Dementia, resulting in complete deterioration of her
memory, loss of thinking skills to perform her daytoday activities.
During the life time of her husband, they were residing jointly with the
petitioners. Now also, she is under their care and residing with them.
She has certain properties as shown in the schedule attached to the
petition. Her only surviving daughter Mrs. Meenakshi Chandaria is
residing in Canada and except the petitioners, there is nobody to take
care of Mrs. Kashmira Joshi and manager her properties. For
maintenance of her Bank accounts and properties, certain compliance
like KYC are to be made. Certain properties are in the joint names of
Mrs. Kashmira Joshi and others. The petitioners intend to dispose some
of them and to invest in a better manner. Hence, they filed the present
petition by invoking Section 50 of the Mental Health Act, 1987.
2. During the course of proceeding, it was noticed that the
appointment of guardian for a mentally ill person started to be governed
by the Rights of Persons with Disabilities Act, 2016. Section 14 of the
said Act has a nonobstante clause and has overriding effect over Mental
Health Act, 1987. Accordingly, the patient was referred to the
Certification Authority i.e. J.J. Hospital, Mumbai. Accordingly, they
examined the patient and sent their report dated 08.01.2019. The
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disability certificate issued by the said authority under Section 58(2)(a)
of the new Act shows that the patient is suffering from advance
Alzheimer's Dementia with Parkinsonism with multiple disability
(profound permanent disability 100%) and is incapable of taking care of
her personal, social and financial needs and is dependent on family
members for the same. She needs a caretaker and guardian for the
same.
3. The petitioners produced on record attested copy of
affidavit of Mrs. Meenakshi Chandaria – daughter of the patient. It is
mentioned in her affidavit that she is the only heir of the patient and
that the petitioners are taking complete care of the patient. She has
faith in them. Hence, she supported the application for appointment of
the petitioners as guardians for her mother and Manage her properties.
4. I heard the learned advocate for the petitioners. He
reiterated the above mentioned facts and submitted that the petitioners
are ready to abide by the conditions which may be put forth by the
Court while allowing their prayer.
5. As per the contentions of the petitioners and the affidavit of
the patient’s daughter and the contents of the disability certificate, the
patient needs full time support. The petitioners are brotherinlaw of
the patient and his wife. Petitioner no.1 is medical practitioner. The
patient’s daughter has also faith in them. Therefore, I am satisfied that
Mrs. Kashmira Joshi is in need of appointment of a total support person
to take her care and also to manage her properties. Though the
petitioners prayed for a kind of blanket permission to alienate the
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properties of the patient, such blanket permission cannot be granted.
Disposal of immovable properties of the patient needs to be dealt with,
depending on case to case of the particular property which is sought to
be alienated. At that time, the patient’s daughter also needs to be
consulted. Therefore, while appointing the petitioners jointly and
severally as her total support guardians of her properties, they are to be
directed to give periodical accounts. Hence, the following order is
passed.
FINAL ORDER
The petitioners Dr. (Mrs.) Devyani Girish Joshi, aged 69 years
and Mr. Girish Chhotalal Joshi, aged 71 years, are jointly and
severally appointed under section 14(1) proviso of the Rights
of Persons with Disabilities Act, 2016 as the Total Support
Guardians for Mrs. Kashmira Kamlakant Joshi, aged about 78
years and for her properties.
The petitioners shall furnish to this office in three months at
the close of every financial year an account of the property
and assets of Mrs. Kashmira Kamlakant Joshi in their charge
and the sums received and disbursed on account of her and
balance remaining with the petitioners.
The petitioners shall take prior permission of this Court before
alienating any of the immovable properties of Mrs. Kashmira
Kamlakant Joshi.
The petition is allowed and disposed off accordingly.
(S.V. YARLAGADDA)
Judge
City Civil Court,
Date: 05/02/2019. Greater Bombay.
Order Dictated on : 05/02/2019
Transcribed on : 06/02/2019
Signed on : 06/02/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
06/02/2019 at 5.30 p.m. BHARAT KASHINATH GAIKWAD
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.V. YARLAGADDA
(Court Room No.54)
Date of pronouncement of Order 05/02/2019
Order signed by P.O. on 06/02/2019
Order uploaded on 06/02/2019
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