Sudha V. Mohan & Others v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA,** ## **1944** ## **WP(C) NO. 27904 OF 2022** ## **PETITIONER/S:** 1 SUDHA V.MOHAN AGED 64 YEARS W/O. MOHAN .V., FLAT NO. 3D, A-BLOCK, CHAKKOLAS HABITAT WILLINGTON NCLAVE, THEVARA FERRY ROAD, THEVARA P.O., ERNAKULAM PIN 682013, FROM SREELEKSHMI HOUSE, CHALA, TRIVANDURM. PIN - 695036. 2 MANOJ MOHAN, AGED 38 YEARS S/O MOHAN. V., FLAT NO. 3D, A-BLOCK, CHAKKOLAS HABITAT WILLINGTON NCLAVE, THEVARA FERRY ROAD, THEVARA P.O., ERNAKULAM PIN 682013, FROM SREELEKSHMI HOUSE, CHALA, TRIVANDURM. PIN - 695036. 3 LEKSHMI MOHAN, AGED 35 YEARS D/O MOHAN .V., FLAT NO. 3D, A - BLOCK, CHAKKOLAS HABITAT WILLINGTON NCLAVE, THEVARA FERRY ROAD, THEVARA P.O., ERNAKULAM PIN 682013, FROM SREELEKSHMI HOUSE, CHALA, TRIVANDURM. PIN - 695036. 4 K. SUDARSANAN, AGED 59 YEARS S/O KESAVA PANIKKAR, ADITYA, T.B - ROAD, PERUMBAVOOR P.O, ERNAKULAM DISTRICT, PIN - 683542. BY ADV K.S.HARIHARAPUTHRAN ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE DEPARTMENT, NEW DELHI. PIN100001. W.P.(C) No.27904 of 2022 -2- 2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. PIN - 695001. 3 DISTRICT COLLECTOR, DISTRICT COLLECTORATE, FIRST FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM. PIN-682030. 4 THE TAHASILDAR, KANAYANOOR TALUK, PARK AVENUE, NEAR SUBASH PARK, MARINE DRIVE, KOCHI.682011. 5 THE SUPERINTENDENT OF GENERAL HOSPITAL, ERNAKULAM.PIN682011. 6 THE MANAGER, INDUSIND BANK, SWASTIK CENTRE, M.G. ROAD, THIRUVANANTHAPURAM. PIN-695001. 7 THE MANAGER, IDFC BANK, GROUND AND MEZZAINE FLOOR, VANKAARATH TOWERS, N.H. BYPASS JUNCTION, PALARIVATTOM, KOCHI, PIN - 682024. 8 THE MANAGER, STATE BANK OF INDIA, P.B. NO. 14, M.G., ROAD, TRIVANDRUM .PIN-695001: 9 THE MANAGER, FEDERAL BANK, GULBARGA BRANCH, SUPERMARKET BLOCK NO.7, FIRST FLOOR, MAIN ROAD, KALABURAGI, KARNATAKA. PIN-585103. 10 THE MANAGER, BANK OF BARODA, BANGLORE BRANCH, GROUND FLOOR, NO. 9, NEWBEL ROAD, BANGLORE, KARNATAKA. PIN560094. 11 THE MANAGER, BANK OF BARODA, GULBARGA BRANCH, PLOT NO. 8., P.B. NO. 13, SUPERMARKET, GULBARGA, KARNATAKA. PIN 585101. 12 THE MANGER, DEVOLVEMENT CREDIT BANK LTD, HASANABAD BRANCH, MUMBAI, PIN – 400010. 13 THE MANAGER, HDFC BANK, HDFC HOUSE, NO.1667 RAVIPURAM JUNCTION, M.G ROAD, 682105, HAVING THEIR REGISTERED OFFICE AT RAMON HOUSE, HT PAREKH W.P.(C) No.27904 of 2022 -3- MARG, 169 BACKBAY RECLAMATION, CHURCHGOERS, MUMBAI, 400020. BY ADVS. SHRI.TULASI PANICKER, CGC ADVOCATE GENERAL OFFICE KERALA ## **OTHER PRESENT:** SMT. R. REMA -SC, SRI. JAWAHAR JOSE - SC, SRI. MANU S. - ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.27904 of 2022 -4- ## **JUDGMENT** Dated this the 12[th] day of October, 2022 The first petitioner is the wife and petitioners 2 and 3 are the children of one Mr.V.Mohan residing in Flat No.3D, A Block, Chakola Habitat, Thevara P.O, Ernakulam. The 4[th] petitioner is the younger brother and partner of M/s.Lekshmi Hiring Service, Gulbarga, Karnataka, of which, V.Mohan is the Managing Partner. Other than the said business, V.Mohan is also having landed properties in Karnataka and Tamil Nadu. He is also having cash deposits and savings bank accounts in various banks. On 09.03.2021, V.Mohan was admitted at the Rajagiri Hospital, Ernakulam with history of Cognitive Impairment. The test results revealed, multi lobulated T1 Hypo intense and T2 Hyper intense extra – axial mass lesion, measuring 4.6 x 6.5 x 4.1 cms, along the floor of anterior cranial fossa in the middle, extending W.P.(C) No.27904 of 2022 -5- towards right side, with broad basic to planum sphenoidile, sub-geneal T1 and T2 hyper intense lesion, measuring 1.9 x 0.4 x 1.9 cm in right frontal region – suggestive of lipoma, and suggested hystopathological correlation. On medical advice, Mohan was subjected to brain surgery, which unfortunately resulted in Mohan slipping into a comatose and vegetative state. Though Mohan is hemodynamically stable, which means that his heart is functioning on account of normal pumping of blood, for all intends and purposes, he is considered to be brain dead. Hence, Mohan cannot manage his own affairs, let alone his business. The family has already spent a huge amount for his treatment and allied expenditures. The business having suffered a set back due to Mohan's illness and his cash deposits being stuck in banks, the petitioners are finding it impossible to meet the expenses for Mohan's treatment and even for day to day sustenance. The writ petition is therefore filed, seeking to W.P.(C) No.27904 of 2022 -6- appoint the first petitioner as the guardian of the properties and person of V.Mohan. 2. On 29.08.2022, this Court passed an interim order directing the 5[th] respondent to constitute a Medical Board for examining Mohan. Accordingly, the Medical Board was constituted and Mohan examined on 12.09.2022. After the examination, the Medical Board opined that V.Mohan is in a comatose state. 3. Learned Counsel for the petitioners relied on the decision in _**Shobha Gopalakrishnan**_ ## _**v. State of Kerala [2019(1) KLT 801]**_ and pressed for an order appointing the first petitioner as guardian for managing the affairs of V.Mohan, including the operation of his bank accounts. 4. I heard learned Standing Counsel for the Bank also. ## 5. In _**Shobha Gopalakrishnan**_ , the Division Bench, after noticing the absence of any specific provision dealing with the procedure for appointment of guardian to a person in ‘comatose W.P.(C) No.27904 of 2022 -7- state’, framed the following guidelines as a temporary measure: _“i) petitioner/s seeking for appointment of Guardian to a person lying in comatose state shall disclose the particulars of the property, both movable and immovable, owned and possessed by the patient lying in comatose state._ _ii) The condition of the person lying in comatose state shall be got ascertained by causing him to be examined by a duly constituted Medical Board, of whom one shall definitely be a qualified Neurologist._ _iii) A simultaneous visit of the person lying in comatose state, at his residence, shall be caused to be made through the Revenue authorities, not below the rank of a Tahsildar and a report shall be procured as to all the relevant facts and figures, including the particulars of the close relatives, their financial conditions and such other aspects._ _iv) The person seeking appointment as Guardian of a person lying in comatose state shall be a close relative (spouse or children) and all the persons to be classified as legal heirs in the due course shall be in the party array. In the absence of the suitable close relative, a public official such as ‘Social Welfare officer’ can be sought to be appointed as a Guardian to the person lying in ‘comatose state’._ W.P.(C) No.27904 of 2022 -8- _v) The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian_ _vi) The appointment of a Guardian as above shall only be in respect of the specific properties and bank accounts/such other properties of the person lying in comatose state; to be indicated in the order appointing the Guardian and the Guardian so appointed shall act always in the best interest of the person lying in ‘comatose state’._ _vii) The person appointed as Guardian shall file periodical reports in every six months before the Registrar General of this Court, which shall contain the particulars of all transactions taken by the Guardian in respect of the person and property of the patient in comatose state; besides showing the utilization of the funds received and spent by him/her._ _viii) The Registrar General shall cause to maintain a separate Register with regard to appointment of Guardian to persons lying in ‘comatose state’ and adequate provision to keep the Reports filed by the Guardian appointed by this Court._ _ix) It is open for this Court to appoint a person as Guardian to the person lying in comatose state, either temporarily or for a specified period or permanently, as found to be appropriate. x) If there is any misuse of power or misappropriation of funds or non-extension of_ W.P.(C) No.27904 of 2022 -9- _requisite care and protection or support with regard to the treatment and other requirements of the person lying in comatose state, it is open to bring up the matter for further consideration of this Court to re-open and revoke the power, to take appropriate action against the person concerned, who was appointed as the Guardian and also to appoint another person/public authority/Social Welfare Officer (whose official status is equal to the post of District Probation Officer) as the Guardian._ _xi) It shall be for the Guardian appointed by the Court to meet the obligations/duties similar to those as described under Section 15 of the National Trust Act and to maintain and submit the accounts similar to those contained in Section 16._ _xii) The Guardian so appointed shall bring the appointment to the notice of the Social Welfare Officer having jurisdiction in the place of residence, along with a copy of the verdict appointing him as Guardian, enabling the Social Welfare Officer of the area to visit the person lying in ‘comatose state’ at random and to submit a report, if so necessitated, calling for further action/ interference of this Court._ _xiii) The transactions in respect of the property of the person lying in ‘comatose state’, by the Guardian, shall be strictly in accordance with the relevant provisions of law. If the Guardian appointed is found to be abusing_ W.P.(C) No.27904 of 2022 -10- _the power or neglects or acts contrary to the best interest of the person lying in ‘comatose state’, any relative or next friend may apply to this Court for removal of such Guardian._ _xiv) The Guardian appointed shall seek and obtain specific permission from this Court, if he/she intends to transfer the person lying in comatose state from the jurisdiction of this Court to another State or Country, whether it be for availing better treatment or otherwise.”_ 6. When a similar matter came up for consideration before this Court, learned Government Pleader had made available a copy of G.O.(P) No.20/20/SJD dated 23.09.2020, designating the Sub Divisional Magistrates as 'designated authority' for the purpose of granting limited guardianship to persons suffering from disablement. Later, the Social Justice Department issued Circular dated 03.05.2022, prescribing guidelines for granting limited guardianship in terms of the Government Order. The guidelines formulated by the Division Bench has, to a large extent, been adopted in the guidelines issued by the Government also. A time W.P.(C) No.27904 of 2022 -11- limit of three months for taking a decision on the application for limited guardianship is also stipulated. In the light of the Government Order and the guidelines, the petitioners can approach the designated authority with an appropriate application. In view of the efficacious remedy available, the writ petition is disposed of as under; - (i) The petitioners shall submit an application before the jurisdictional Sub Divisional Magistrate, seeking grant of limited guardianship to one among the petitioners. (ii) The particulars of the bank accounts and details of the fixed deposits of V.Mohan, as on the date of receipt of a copy of this judgment, shall be appended to the application for limited guardianship. (iii) While taking a decision on the application, the Sub Divisional W.P.(C) No.27904 of 2022 -12- Magistrate may take into account the manner in which the accounts were operated and the money expended. Needless to say that in view of the time limit stipulated in the guidelines, the application for limited guardianship will have to be decided within three months of its submission. As the petitioners are in dire need of money for treatment and incidental expenses of V.Mohan, the first petitioner is permitted to operate the bank accounts of V.Mohan with the concurrence of other petitioners for a limited period of three months from the date of receipt of a copy of this judgment. **Sd/-** **V.G.ARUN JUDGE** Scl W.P.(C) No.27904 of 2022 -13- ## **APPENDIX OF WP(C) 27904/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PARTNERSHIP DEED DATED 01-04-2010. Exhibit P2 TRUE COPY OF THE LEASE- CUM- SALE AGREEMENT OR OUT RIGHT SALE BASIS PLOT, DATED 23/10/2002, NO. 4555. Exhibit P2 A TRUE COPY OF THE DISSOLUTION DEED, DATED 1.4.2010. Exhibit P3 TRUE COPY OF THE SALE DEED NO. 2207, DATED 0611-2017, OF THE S.R.O., MARADU. Exhibit P4 TRUE COPY OF THE SALE DEED NO. 1151, DATED 13 - 02-2015, OF THE S.R.O WALAJA. Exhibit P5 TRUE COPY OF THE SALE DEED NO. 7349, DATED 19 - 01 - 2005. Exhibit P6 TRUE COPY OF SALE DEED NO. 1997, DATED 05-042007, OF THE S.R.O., VIRUGAMBAKKAM. Exhibit P7 TRUE COPY OF THE ACCOUNT DETAILS OF MR. MOHAN, WITH RESPONDENTS 6 TO 13 BANKS. Exhibit P8 TRUE COPY OF THE LIABILITY STATEMENT OF MR. V. MOHAN. Exhibit P9 TRUE COPY OF THE REPORT OF MRI -- BRAIN PLAIN AND CONTRAST OF MR. V. MOHAN, DATED 12-03-2021, DONE BY DR. VINAYAK JAYARAM, M.D. (RADIO DIAGNOSIS), DNB (RADIO DIAGNOSIS), MNAMS, EDÄ°R. Exhibit P10 TRUE COPY OF THE RENT DEED DATED 08-06 -2022. Exhibit P11 TRUE COPY OF THE DISCHARGE SUMMARY OF MR.V MOHAN DATED 29.06.2022. Exhibit P12 TRUE COPY OF THE CERTIFICATE DATED 29.06.2022 ISSUED BY DR.SUDISH, KARUNAKARAN , VPS LAKESHORE HOSPITAL, KOCHI.