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Petitioner: Farrukh Afzal Munif VS Respondent: Muhammad Afzal Munif & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title: Farrukh Afzal Munif vs Muhammad Afzal Munif & others Case No.: Suit No.938 of 2017 Date of Judgment:2018-09-28 Reported As: 2019 CLC 431, 2018 SHC 1005 Result: application dismissed
Judgment Muhammad Ali Mazhar , J. This suit has been brought to entre at a declaration, injunction, cancellation, possession, directions, recovery and damages. Along with the plaint, the plaintif f has also filed CMA No.5903/2017 under Order 39 Rule 1 & 2 CPC for restraining the defendant No.2 to 5 from counterfeiting the signature of defendant No.1 and not to create any third party interest in the properties mentioned in paragraph 7 to 9 of the plaint with further restraining order not to transfer the shares and not to withdraw the amount from the banks. During pendency, the defendant No.1 has also filed CMA No.7636/2017 under Order 7 Rule 11 CPC for rejection of plaint on various grounds including that the suit is barred under Section 42 of the Specific Relief Act and Sindh Mental Health Act 2013. The application is supported by the personal affidavit of defendant No.1 whose photograph is affixed on the affidavit with his signature on each page of his affidavit which is also duly attested by Saman Muneeb, Consul/HOC, Consulate General of Pakistan, Chicago 27.4.2017. (See page 95-part-11 of the court file) 2. The learned counsel for the plaintif f argued that the plaintif f is the eldest son of defendant No.1 and 2 and brother of defendants No.3 and 4. The perusal of the doctor's report dated 5.7.2016 available at page 87 shows that the defendant No.1 is suffering from dementia and he is unable to take care of his financial matters and look after his legal matters. The defendant No.1 was under the treatment of doctor for more than five years. This medical certificate was produced by defendants No.2 and 3 to the Banks confirming that the defendant No.1 is unable to take care of his financial matter as well as legal matter . The plaintif f's sister (defendant No.3) and brother in law (defendant No.5) have been taking advantage of the plaintif f's father's (defendant No.1) ill health and secretly and illegally transferring properties and assets in their own names and also forging his signatures on various documents. 3. He further argued that defendant No.1 has established well-known Chartered Accountant Firm i.e. Munif Ziauddin & Co. He also established M/s Tulip Industries (Pvt.) Limited and M/s Twin Star (Pvt.) Limited and out of
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love and affection, he inducted the plaintiff and defendant No.2 as Directors in the aforesaid companies. However in the last week of June 2016, the defendant No.1 came to know that his properties and assets had been deceitfully transferred in the names of defendants No.2, 3 and 4. The defendant No.1 then called the plaintiff and asked his help thereafter the plaintiff took the defendant No.1 to various financial institutions for reversing illegal transactions. The plaintiff also approached the defendant No.2 to discuss the matter but she refused to listen to the plaintiff and asked him to leave. The plaintiff also tried to visit his father but he was not allowed access by security guards posted at the bungalow by defendants No.2, 3 and 5. The plaintiff also filed a Constitution Petition No.1157 of 2016 against the illegal confinement of defendant No.1 but despite this Court orders dated 18.7.2016 for production, the defendants No.2, 3, 4 and 5 forcibly took the defendant No.1 abroad. The learned counsel also referred to an interpleader Suit No.1732 of 2016 filed by Bank Al-Habib Limited to establish that the defendant No.1 is not in a fit state of mind. The defendants No.2 to 5 took away the defendant No.1 from the territorial jurisdiction of this court, who at the moment is in illegal custody of defendant No.4. 4. So far as the application moved by the defendant No.1 under Order VII Rule 11 CPC, the learned counsel argued that admittedly Mental Health Act, 2013 pertains to the mentally disordered person. In terms of Section 29 of the aforesaid Act, it is clearly mentioned that the person should be available within the jurisdiction of the court. In terms of Section 31 of the Mental Health Act, 2013 if a person is not available within 50 miles of the court then there should be a Commission. This Act amply demonstrates and proves that for the purpose of invoking the provisions of the Mental Health Act, 2013 the physical presence of the patient is sine qua non. The defendant Nos.2 to 5 have deprived the plaintif f from love and affection of his father and desp ite clear orders of this court they have taken away the defendant No.1 to USA. The learned counsel during arguments, on an oral motion conveyed that the plaintif f does not want to press prayer clause (i) and (j). It was further averred that in order to enforce the attendance on the basis of Mental Health Act, 2013, even this court has the powers under Order 10 CPC to examine the parties. The learned counsel concluded that the plaint involves questions of law and facts so it cannot be rejected. In support of his contention, the learned counsel for the plaintif f referre d to 2017 YLR 1579 , 2002 CLD 1466 , PLD 2017 Sindh 438, 2017 MLD 785, 2017 YLR 1579 , PLD 2018 Sindh 327, PLD 2016 Sindh 26, 2016 MLD 266 , 2014 MLD 1537 , 2014 YLR 444 , 2013 CLD 1263 ,2010 YLR 3313 and 2009 MLD 1378 . 5. The learned counsel for the defendant No.1, 2 & 6 argued that the plaintif f has filed this suit to harass and torture his ageing parents by disallowing and depriving them to have access to their own movable and immovable assets. The plaintif f is an unemployed man who has always been financially supported by defendants No.1 and 2. Despite his age and illnesses, the defendant No.1 is reasonably healthy and mentally fit person. He is able to take his own decisions and in the company of his wife is leading a satisfied life. It is evident through the documents signed by the defendant No.1 in presence of officials at Embassy as well as before High Court of Sindh that he is a mentally fit person. It was further argued that the defendant No.1 has been residing in Bung alow No. 57, Main Khayaban-e- Hafiz, Phase V, DHA, Karachi for last three decades. He was never detained as claimed by the plaintif f. However , presently for the purpose of care and treatment the defendants No.1 and 2 have chosen to stay abroad. The defendant No.1 is fit to travel on his freewill. He is also receiving medical treatme nt and being well taken care by the defendants No.2 & 4. The plaintif f does not have any right over the assets and properties of the defendant No.1 nor is he in any manner entitled to the assets and properties of the defendant No.2. The properties and assets mentioned by the plaintif f in the plaint belong to defendant No.1 and 2 and they both have the sole right to use and dispose of these assets as per their own will and wishes. The properties claimed by the plaintif f as benami properties under defendant No.2' s name are in fact properties purchased and owned by the defendant No.2 by her own funds hence are not benami. The same can be established from her Tax Returns filed with the plaint. The plaintif f has failed to disclose any enforceable right or entitlement on the properties owned and possessed by the defendant No.1 and defendant No.2. 6. He further argued that under the Sindh Mental Health Act 2013, it is the Court of Protection which is mandated to undertake such proceedings. This court in its Original civil Jurisdiction is not empowered to substitute itself as a Court of Protection under the Sindh Mental Health Act, 2013. The Mental Health Ordinance 2001 has been repealed by Section 61 of the Sindh Ment al Health Act 2013. Under Section 29 read with Section 2 (e) of the Sindh
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Mental Health Act 2013, the proceedings are to be filed before the concerned Court of Protection, which under the law is the District Court. Under Section 30(d) of the Act the Court may examine a person or may appoint any person to report the mental capacity and condition of such mentally disordered person. The court may also appoint two or more persons to act as assessors to the Court in the said proceedings. He further argued that under Section 33(1) of the Act, the Court may appoint any suitable person to be the manager of such property . Under Section 46 of the Act, the High Court is the Appellate forum hence even for want of jurisdictio n under this special enactment, the present proceedings are not maintainable. 7. It was further contended that the speci al law supersedes the general law. The suit falls under the Sindh Mental Health Act 2013 and not the general law. Section 9 of CPC will not over weigh Section 29 & 30 read with Section 2(e) of the special Statute. Section 60 of the Sindh Mental Health Act 2013 has an overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The learned counsel referred to 2017 SCMR 831 , 2017 SCMR 1218 , 2017 PTD 884 and 2016 YLR 1739 . 8. The learned counsel further argued that no evidence has been provided in order to support that the properties belonging to the defendant No.2 are benami. None of the properties mentioned in Para 7 of the Plaint are gifted by defendant No.1 rather all were directly purchased by her from her own funds. If there was any right to claim these alleged benami properties then the same lies only with the defendant No.1. In support of this contention, he referred to 2005 SCMR 577, PLD 2008 SC 146, 2017 YLR 224 and 2004 SCMR 1111. It was further contended that the suit is barred under Section 42 of the Specific Relief Act. The plaintiff has no locus standi as none of the properties claimed are owned/purchased by him. The suit does not disclose any cause of action as it is based on untrue and fabricated facts. He further argued that on basis of the above factual narration, it is evident that on account of lack of cause of action and on account of jurisdiction the present lis is not maintainable. The learned counsel further referred to PLD 2016 SC 55, 2017 YLR 138, PLD 2012 SC 211, PLD 2017 Sindh 528., 2016 CLC 1660, 2016 MLD 1514, 2017 CLC 40 and PLD 2012 Sindh 92. The learned counsel concluded that all prayers made in the plaint are emanating from the single cause of action, i.e. the assumption of mental illness which is yet to be adjudicated upon by the competent forum. Merely withdrawing couple of prayers does not change nature of pleadings. The plaintiff cannot take refuge under Order 2 Rule 2 CPC as he has no cause of action. The plaint is liable to be rejected and injunction application is liable to be dismissed. 9. The learned counsel for the defendant No.3 and 4 argued that the plaintif f has filed this suit for the sole purpose of disallowing the defendant No. 1 to have access to his own property during his life time, so that the plaintif f may have larger share in the inheritance pool on the demise of the defendant No.1. The plaintif f never took interest in his parents well-being and did not provide any support or empathy for his father . Moreover , the plaintif f did not enjoy a good relationship with the defendant No. 1 and therefore the plaintif f thought that his parents would transfer all their properties to the defendants 3 and 4, leaving him to suffer. The defendant No. 3 and 4 have been financially independent of the defendant No. 1 and 2 since their marriages. She further argued that in the Habeas Corpus Petition, the defendant No. 1 appeared to mark his attendance but unfortunately that day the work of the court was suspended. However, the defendant No. 1 went and swore in an affidavit giving his statement which was filed in CP.NO-S-1157 of 2016. The entire prayer clauses are focused on one point, that the defendant No. 1's wealth should be frozen so that the plaintiff can either have access now or later. It was further contended that the Sindh Mental Health Act 2013 is applicable for the evaluation of the mental health of a person. The plaintiff has no prima facie case. The plaintiff has no right over the property of the defendant No. 1. If the injunction is confirmed, irreparable loss will be caused to defendant No. 1 and 2. The learned counsel also supported the arguments advanced by the learned counsel for the defendant No.1 for rejection of plaint under Order 7 Rule 11 C.P.C. 10. Heard the arguments. The veneer of this lawsuit is primarily based on the notion that the defendant No.1 due to mental disorder and ailment of dementia is lacking ability to look after his affairs and matters related to his properties. The edifice of the plaint is built on various prayers including some consequential reliefs. The gist of the prayers implored in the plaint are that the defendant No. 2 to 5 are not allowing to meet the plaintiff to his father (defendant No.1); the defendant No. 2 to 6 have no right to transfer the shares, moveable or
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immovable properties in their names due to mental incapacity of the defendant No.1; the properties mentioned in paragraph No.7 of the plaint in the name of defendant No.2 are benami therefore the defendant No. 2 to 5 have no lawful authority to claim the same; cancellation of transaction in respect of the shares as well as the accounts of defendant No.1 with defendant No. 7 to 11 and defendant No. 14 to 16 as the defendant No.1 is unable to take care of his legal as well as financial matters; directions have also been sought against the defendant No. 2 to 5 to produce the record of all movable and immovable properties belong to defendant No. 1 or any gift deed, thereafter the same may be cancelled; directions have been sought against the defendant No. 17 to hold inquiry and submit report regarding the forged signatures of the defendant No. 1 by defendant No. 3 to 6 on the cheque books, TDR shares transfer certificates; orders of this court have been sought to constitute medical board to examine the defendant No. 1 and submit the report; further directions have been sought against the defendant No. 2 to 5 to produce the defendant No. 1 before this court for physical examination; a request has been made to conduct inquiry under the provisions of Mental Health Ordinance, 2001 for the purpose of ascertaining as to whether the defendant No.1 is incapable of managing himself and his movable and immovable properties and pass an appropriate order under Section 30(3) of the Mental Health Ordinance, 2001; a further request has been made for the appointment of guardian/manager of the movable and immovable properties of the defendant No.1; restraining order has been claimed against the defendant No. 2 to 5 from entering into any transaction, misappropriating or putting to their own use any movable or immovable properties of the defendant No.1 and finally the plaintiff has also prayed for money decree in the sum of Rs.1 billion on account of damages payable by defendant No. 2 to 5 jointly and severally to the plaintiff on account of losses mentioned in the statement of claim. However during course of the arguments, the learned counsel for the plaintiff on oral motion addressed that he does not want to press prayer clause (i) and (j) which are in fact related to directions to the defendant No. 2 to 5 to produce the defendant No.1 in court and inquiry under the provisions of Mental Health Ordinance, 2001. 11. On 1.11,2013, the Sindh Mental Health Act, 2013 was promulgated which was made effective from 07t August, 2013. Under Section 61 of this Act, the provisions of Mental Health Ordinance, 2001 applicable to the Province of Sindh were repealed so for all intent and purposes when this suit was filed in the year 2017, the Sindh Mental Health Act, 2013 was in field, henceforth, the reliance placed by the plaintiff for the purposes of inquiry under the provisions of 2001 Ordinance was meaningless and inconsequential. The elementary examination or inquisition requires to be conducted is whether the defendant No.1 is suffering from mental disorder or not? The plaintiff has asserted that defendant No.1 is patient of dementia whereas some correspondence is also available on record with medical certificates that the defendant No.1 was suffering from dementia and in this regard the defendant No.2 who is the wife of defendant No.1 also communicated to the banks that he is not a mentally fit to look after his person and property. One financial institution has also filed interpleader suit in this court on the same basis that the defendant No.1 is suffering from dementia. This attribute of the case has not been denied by the counsel for the defendant No.1 to 5 but in unison they also argued that in some point of time the defendant No.1 was suffering from dementia but later on after his proper treatment and medication he has got some improvement and now he is able to understand and look after his affairs independently . It is also an admitted fact that the same plaintif f has filed C.P. No.S-1 157/2016 for issuing a writ of habeas corpus directing the SHO PS Darakhshan to produce defendant No.1 in the court. The learned counsel for the plaintif f admitted that this petition is pending in this court and at one point of time the court directed the Respondent No. 2 and 3 (wife and daughter of the defendant No.1 who are defendant No. 2 & 4 in this suit) to produce the defendant No.1 in court. The counsel for the defendant No.1 argued that on directions of the court the defendant No.1 appeared in the habeas corpus petition but on that date due to some strike or incident the court work was suspended therefore his presence could not be marked however on the same day, he sworn in af fidavit which is available on record duly verified by ISMS department of this court. 12. The raison d'tre of promulgating Sindh Mental Health Act, 2013 is to regulate the matters relating to mentally disordered persons vis--vis their care, treatment, management of their property and to encourage community care of such mentally disordered persons and further to provide for the promotion of mental health and prevention of mental disorder. To maintain the sanctity being a special law, it is clearly provided underh
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Section 60 that the provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. In Section 2 of the Act, "mental disorder" means a mentally ill person who is in need of treatment by reason of any disorder of the mind other than mental impairment and sever personality disorder whereas the "treatment of mentally disordered person" means the assessments and treatment of a mentally disordered person and shall include assessment, care, training, habilitation as well as rehabilitation techniques or measures as the case may be. Chapter V of the Act germane to the judicial proceedings for appointment of guardian of a person and manager of the property of the mentally disordered whereas the Court of Protection means a District Court having jurisdict ion under this Act in the matters specified herein and designated as such by government. Under Section 29, the court of protection upon an application may direct an inquiry for ascertaining whether a person is mentally disordered and incapable of managing himself and his property . For the ease of reference, Section 29 is reproduced as under:- "29. Whenever any person is possesse d of property and is alleged to be mentally disordered, the Court of Protection, within whose jurisdiction such person is residing may, upon application by any of his relatives having obtained consent in writing of the Advocate General of Sindh, by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs". Whereas Section 30 of the same Act provides the regulation of proceedings of the court of protection which is reproduced as under:- 30. (1) The following provisions shall regulate the proceedings of the Court of Protection with regard to the matter to which they relate, namely:- (a) Notice shall be given to the mentally disordered person of the time and place at which it is proposed to hold the inquiry; (b) if it appears that personal service on the alleged mentally disordered person would be ineffectual, the Court may direct such substituted service of notice as it thinks fit; (c) the Court may also direct copy of such notice to be served upon any relative of the alleged mentally disordered person and upon any other person to whom in the opinion of the Court notice of the application should be given; (d) the Court may require the alleged mentally disordered person to attend, at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or to any person from whom the Court may desire to have a report of the mental capacity and condition of such mentally disordered person; (e) the Court may likewise make an order authorizing any person or persons therein named to have access to the alleged mentally disordered person for the purpose of personal examination; and (f) the attendance and examination of the alleged mentally disordered person under the provisions of clause (d) and clause (e) shall, if the alleged mentally disordered person be a woman who, according to customs of the country , ought not to be compelled to appear in public, be regulated by the law and practice for the examination of such persons in other civil cases. (2) The Court, if it thinks fit, may appoint two or more persons to act as assessors to the Court in the said proceedings. (3) Upon the completion of the inquiry, the Court shall determine whether the alleged mentally disordered person is suffering from mental disorder and is incapable of managing himself and his affairs, or may come to a special finding that such person lacks the capacity to manage his affairs, but is capable of managing himself and is not dangerous to himself or to others, or may make any such order it deems fit, in the circumstances of the case, in the best interests of such person. 13. Consistent with the literature accessible out of different websites, the disease such as Dementia and Alzheimer have been exemplified as under: "some forms of dementia, such as Alzheimer's disease, are degenerative. They get worse over time. Other forms of dementia, such as vascular dementia, may be non-degenerative and may not get worse
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over time. Dementia occurs as a result of the death of brain cells or damage in parts of the brain that deal with our thought processes. This may follow other problems like a lack of blood or oxygen supply to these brain areas; a head injury (from boxing or whip lash after a car crash, for instance); pressure on the brain (from a tumor, for example); hydrocephalus (fluid build-up between the brain and the brain lining); a neurological disease (such as Parkinson's disease... The second most common type of dementia is vascular or multi-infarct dementia. This is caused by mini strokes that constrict blood flow and oxygen to the brain. Ref: https://www.mentalhealth.org.uk/a-to-z/d/dementia. Major neurocognitive disorder is a decline in mental ability severe enough to interfere with independence and daily life. The word dementia is related to a Latin word for mad or insane. Because of this, the introduction of the term neurocognitive disorder attempts to help reduce the stigma associated with both the word dementia and the conditions that it refers to. Dementia causes can be reversible or they can be irreversible and progressive. Potentially reversible dementia symptoms include those caused by depression, stroke, traumatic brain injury, certain medications and even bladder infections. Irreversible and progressive dementias include Alzheimer 's disease and vascular dementia. Ref: https://www .crisisprevention.com/Blog/July-2013/Major Neurocognitive-Disorder-Dementia . It is a form of insanity resulting from degeneration or disorder of the brain (ideo- pathic or traumatic but not congenital) and characterized by general mental weakness and decrepitude, loss of coherence and total inability to reason but not accompanied by delusions or uncontrollable impulses. Pyott v. Pyott, 90 III. App. 221; Hall v. Unger , 2 Abb. U. S. 510, Fed. Cas. No. 5,949; Dennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97; People v. Lake, 2 Parker , Cr. R. (N. Y.) 218.... Among the sub-divisions of dementia should be noticed the following: Acute primary dementia is a form of temporary dementia, though often extreme in its intensity and occurring in young people or adolescents, accompanied by general physical debility or exhaustion and induced by conditions likely to produce that state, as malnutrition, overwork, dissipation or too rapid growth.…
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