Mookerjee, C.J.@mdashThis is an appeal under cl. 15 of the Letters Patent, from the judgment of the two Judges of a Division Court, who were equally divided in opinion, in the matter of an appeal under sec. 83 of the Indian Lunacy Act, 1912, from an order made by a District Court in a proceeding for judicial inquisition as to the alleged lunacy of one Dhirendra Nath Saha Choudhury. The District Court held that it had no jurisdiction under sec. 62 to direct an inquisition. Mr. Justice Teunon has held that the view taken by the District Court is correct and that the proceedings should have been instituted under sec. 37 on the Original Side of this Court. Mr. Justice Beachcroft has held, on the other hand, that the District Court had jurisdiction under sec. 62 to entertain the application when made and should have exercised the powers vested in it. The solution of the question raised depends upon the true construction of the provisions of the Indian Lunacy Act, 1912. But before we examine those provisions it is desirable to set out the facts found by the District Judge which have not been challenged before us. The alleged lunatic is a member of a family of Saha Choudhuries whose ancestral abode is at Parsadanga in the District of Pabna. The family residence at Parsadanga was partitioned in 1901, between the grandfather of the alleged lunatic and his two co-sharers, and was assigned to the shares of the latter. Gobinda, the grandfather of the alleged lunatic, appears to have entertained an intention at one time to build a suitable family residence at Parsadanga, for his branch of the family; but this was not carried into effect owing to the death of his son Harendra. What actually happened was that Gobinda came to live in Calcutta, where he had a house in Hatkhola. Here he carried on a lucrative business in paddy and grains, and acquired considerable house property in Calcutta. During the last 13 years of his life, he lived in Calcutta, and his grandsons (the alleged lunatic and his brother Surendra) lived with him. Since the death of Gobinda in 1913, his two grandsons have separated from their uncle Jogendra and have continued to live in Calcutta, although they were accustomed to go once or twice every year to Pabna and Parsadanga to look after their landed property. The evidence shows that on an average they lived about nine or ten months every year in their Calcutta house and about two or three months a year at Pabna and Parsadanga. The women folk of the family live in the Calcutta house, and it is only the men who visit the District occasionally. The Petitioner Anilabala was married to Dhirendra, the alleged lunatic, about ten years before the commencement of these proceedings. She lived with him only in the Calcutta house, except in March 1917, when she took him to live with her in her father''s house at Pabna. There, on the 22nd May 1917, Dhirendra executed a trust-deed in favour of Anilabala. Soon afterwards, his brother Surendra came to Pabna and managed to take him away from Anilabala to his own house.
2. There, on the 10th July 1917, Surendra caused Dhirendra to revoke the previous trust-deed and to execute a fresh trust-deed in his own favour. On the 14th August 1917, Anilabala instituted these proceedings in the Court of the District Judge at Pabna under the Indian Lunacy Act, 1912. On that date Dhirendra was at Parsadanga; but on the next day, apparently as soon as the institution of the lunacy proceedings became known, he hurriedly left in charge of two men and reached Calcutta on the 16th August 1917. The question arises, whether in these circumstances, the District Court had jurisdiction to entertain the application.
3. The Indian Lunacy Act, 1912, which was enacted to consolidate and amend the law relating to lunacy, repealed the Lunacy (Supreme Courts) Act, 1858, and the Lunacy (District Courts) Act, 1858. The Act is divided into four parts. The first part contains one chapter which deals with preliminary matters. The second part contains two chapters which deal with the reception, care and treatment of lunatics. The third part treats of judicial inquisition as to lunacy, in two separate chapters, devoted respectively to proceedings in lunacy in and outside Presidency towns. The fourth part contains four chapters which deal with miscellaneous matters.
4. The fourth chapter, which treats of proceedings in lunacy in Presidency Towns, begins with sec. 37. That section lays down that the Court having jurisdiction under the chapter shall be the High Court of Judicature at Fort William, Madras and Bombay. Sec. 38, sub-sec. (1) then authorises the High Court to direct an inquisition, whether a person subject to the jurisdiction of the Court who is alleged to be lunatic, is of unsound mind and incapable of managing himself and his affaire. Sec. 43, sub-sec. (1) authorises the Court, if the alleged lunatic is not within the local limits of its jurisdiction, to direct the inquisition to be made before the District Court within whose local jurisdiction the alleged lunatic may be. It is thus plain that the legislature contemplated that a person, subject to the jurisdiction of the High Court for purposes of judicial inquisition as to alleged lunacy, may not be within the local limits of the jurisdiction of the Court and may be within the local jurisdiction of a District Court. It will be observed that sec. 38 does not formulate the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for purposes of judicial inquisition as to alleged lunacy. In this respect, the law is left as it was under secs. 1 and 8 of the Lunacy (Supreme Courts) Act, 1858. The fifth chapter, which treats of proceedings in lunacy outside Presidency Towns, commences with sec. 62 which provides as follows :--
Whenever any person, not subject to the jurisdiction of any of the Courts mentioned in sec. 37, 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.
5. It is thus plain that before a District Court can institute inquisition as to a person possessed of property and alleged to be a lunatic, it must be established not merely that such person is residing within the jurisdiction of that Court, but also that he is not subject to the jurisdiction of any of the High Courts mentioned in sec. 37. This confirms the view that the legislature undoubtedly contemplated, as we have already seen from secs. 38 and 43, that a person subject to the jurisdiction of a High Court for the purposes of judicial inquisition as to alleged lunacy may reside within the local limits of the jurisdiction of a District Court. Consequently, in a case where an alleged lunatic is subject to the jurisdiction of a High Court under sec. 37, the District Court had no jurisdiction under sec. 62, even though the person may reside within the local limits of the jurisdiction of the District Court. To put the matter briefly, the jurisdictions of the High Court and the District Court are not concurrent, but the jurisdiction of the High Court excludes that of the District Court; on the other hand, if the alleged lunatic resides in two Districts, the jurisdictions of the two Courts are concurrent and not mutually exclusive. In this respect, the law as embodied in the preamble and sec. 2 of the Lunacy (District Courts) Act, 1858, has been substantially reproduced in the Indian Lunacy Act, 1912. It follows, accordingly, that before it can be affirmed that the District Court was competent to entertain the present proceedings, the question must be investigated whether the alleged lunatic was or was not subject to the jurisdiction of this Court within the meaning of sec. 38 (1).
6. Sec. 38, as already stated, does not define the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial inquisition as to lunacy. But if we look at the nature of the proceedings, it is clear that they are directed primarily against the person and only secondarily against his property. The right of the Court to learn judicially whether a person is or is not of unsound mind is inferred from the right to his care and custody provided he is insane. In England, the custody and control of the persons of insanes and idiots was vested in the King as parens patrice : consequently, the authority to direct an inquisition to be taken was also his, but was delegated to the Chancellor as the personal representative of the Crown by means of an official instrument called the "sign manual" and was exercised by the Chancellor alone and not by the Court of Chancery. Exp. Grimstone Ambler 706 (1772), Burford v. Lenthall 2 Atk. 551 (1743) and In re Fitzgerald 2 Sch. & Lef. 432, L1. & G. temp. P1. 20 (1805). The jurisdiction in lunacy originally was thus in theory distinct from the general Chancery jurisdiction under the great seal; but once the fact of insanity had been adjudged in any particular case, a further jurisdiction then arose in the Court of Chancery to supervise and control the official conduct of the committee appointed to look after the person and property of the individual who had been adjudged as a lunatic. Consequently, the essential nature of the proceedings is that the authority vested in the Court is exercised in the first instance over the person of the individual concerned. Such authority over the person may unless otherwise directed by statute, be ordinarily exercised in the case of residents within the local limits of the jurisdiction of the Court. It may also be exercised over non-residents, if there is statutory provision to that effect. From this point of view, we may reasonably hold that the authority vested in the High Court under sec. 38 (1) may be exercised over individuals who reside within the local limits of the jurisdiction of the Court, but it need not be held at the same time that the exercise of the authority is restricted to such persons; for, as is well-known, the Supreme Court had jurisdiction over British subjects even though they were resident in a part of the province beyond the local limits of its jurisdiction. [Manickchand v. Johnson [1785] Morton, Vencataspur v. East India Co. [1816] 2 Strange N.C. 372 and In the matter of the Maharanee of Lahore [1848] Taylor 428]. The two questions which thus require examination in the present case are, first, was the alleged lunatic subject to the jurisdiction of this Court for the purposes of sec. 38 of the Indian Lunacy Act, by reason of residence within its local limits, and secondly, if he was a resident and so subject to the jurisdiction of the Court did he cease to be subject to the jurisdiction of the Court when he went to the District of Pabna in March 1917. In our opinion the first question must be answered in the affirmative and the second in the negative.
7. It is fairly clear that the alleged lunatic must be deemed to have been a resident of Calcutta and subject to the jurisdiction of this Court within the meaning of sec. 38 of the Indian Lunacy Act before he went to Talma in 1917. The terms "reside" and "residence" have been the subject of judicial consideration on diverse occasions and in relation to a variety of circumstances. The expression "to reside" has been held to signify "to dwell permanently or for a considerable time," "to have a settled abode for a time," "to abide continuously," "to have one''s domestic or home," "to remain for a long rime." The term "residence" has been taken as equivalent to "the abiding or dwelling in a place for some continuance of time," and it has been said that to constitute a residence there must be a settled fixed abode or intention to remain permanently, at least for a time, for business and other purposes. In Rex v. North Curry 4 B. & C. 953, 959 (1825) quoted in Kumud v. Jotindra ILR 38 Cal. 394 (1911), it was said that the word "resides," where there is nothing to show that it is used in a more extensive sense, denotes a place where an individual eats, drinks, sleeps, or where his family and his servants eat, drink and sleep. [Ex parte Breull 16 Ch. D. 487 (1880), Fold v. Drew 5 C.P.D. 59 (1879), Lewis v. Graham 20 Q.B.D. 780 (1888) and Madho Persad v. Walton 18 C.W.N. 1050 (1913)]. These and other cases show that the term "residence" is an elastic word, of which an exhaustive definition cannot be given; it is differently construed according to the purpose for which enquiry is made into the meaning of the term, the sense in which it should be used is controlled by reference to the object. Mahomed Shuffli v. Laldin Abdullah ILR 3 Bom. 227 (1878) and Shri Gosvami v. Shri Goberdhan ILR 14 Bom. 541 (547) (1890). Thus, for instance, under sec. 3 of the Indian Divorce Act, it was ruled in Bright v. Bright ILR 36 Cal. 464 (1909), that in a petition for dissolution of marriage, where the husband and the wife had no permanent residence, the petition could be entertained by the Court having jurisdiction over the place where they last resided together though for a short period. A narrower view has, on the other hand, been taken as to the true meaning of sec. 5 of the Indian Insolvent Act, 1848 (11 and 12 Vict. Chap. 21); In re Rampal Singh 8 C.L.R. 14 (1881) and In re De Momet ILR 21 Cal. 634 (1894). Again with reference to secs. 321 and 322 of the Bengal Municipal Act, 1884, it has been ruled in Radha Gobinda v. Kumarkhali Municipality 19 C.W.N. 1027 (1914) that a house, in which a person occupied room though he was absent occasionally on duty, might well be regarded as his residence. In this connection it may be observed that a comprehensive definition, based on the Roman law (Dig. 50, tit 1, 16, 20, 27, 203; Code, tit 39, 7), was suggested in the case of In re Hawley 1 Daly 683 : "a man''s residence is the place where his family dwells or which he makes the chief seat of his affairs or interests." But, whatever definition may be framed or adopted, there is one fundamental point of view which must not be overlooked. The term "residence" may be used in two senses, the one denoting the personal habitual habitation, the other the constructive, technical and legal habitation. When a person has a fixed abode where he dwells with his family there can be no doubt as to the place where he resides : the places of his personal and legal residence are the same. "When, on the other hand, a person has no permanent habitation or family, but dwells in different places as he happens to find employment, there can equally be no doubt as to the place where he resides; he must be considered as residing where he actually or personally resides. But some individuals have permanent habitations, where their families constantly dwell, yet they pass great portions of their time in other places; such persons have a legal residence with their families and a personal residence in the other places, and the word "reside" may, with respect to such persons, be used in relation to either their personal or their legal residence. From this point of view, it is manifest that one may have two places of residence, in one of which he resides during one portion of the year, in the other during the remaining portion; what may be said to be the place of personal residence during one portion of the year thus becomes the place of legal residence during the remainder of the year and vice versa. Reference may in this connection be made to the judgment of Wood, V.C. in Walcot v. Bottfield [1854] Kay 534 : 101 R.R. 719, where it was ruled that a person may be said to have more than one residence if he has houses in different places at each of which he keeps an establishment; each may be called his residence, though he may not go to one of these places for some years. The same view had been taken by Lord Eldon in Feelingham v. Bromley T. & R. 530; 24 R.R. 136. Generally, if a person has two or three establishments every one of them may be called his residence, and not less so because he may not go there for some time. If he keeps an establishment in it, the place is still his residence, and thus he may be said to have his residence in two or three different countries. The question is entirely distinct from that of domicile which is often wholly independent of actual residence. [In re Moir 25 Ch. D. 605 (1884) and In re Wright [1907] 1 Ch. 231] instances are not by any means rare in the United States where the Courts have held that a person may have two residences; thus, in Douglas v. Mayor 2 Duer 110, as the Plaintiff lived in New York City in the winter and spring and in the country in summer and autumn, it was ruled that he was entitled to privileges (and consequently subject also to liabilities) on the footing that he had a residence in both places [People v. Tax. Commissioner [1891] 16 N.Y. Sup. 834, Stout v. Leonard 37 N.J.L. 732, In re New Comb 192 N.Y. 238 (250) and Gulf Railway Co. v. Overton 107 S.W. 71 (79)]. We do not refer to these cases as authorities in any way binding on this Court; but they are helpful as showing that in other jurisdictions, the Courts have held that it is not inconsistent with first principles that a man may have two places of residence.
8. In the case before us, there can be no room for serious controversy that the alleged lunatic, who lived in Calcutta nine or ten months on an average every year and two or three months at Pabna, and Parsadanga, had residences in both places, so as to become subject to the jurisdiction of both Courts. As regards the High Court, it is plain that his residence was sufficient to make him subject to its jurisdiction; this conclusion, as appears from a long series of cases, is consistent with what was under stood to be the law more than a century ago. [Vencatasa v. Sashachella [1803] 1 Strange N.C. 187, Durham v. Mendes [1809] Morton 147, Madoo v. Balloo [1818] Morton 149, Ramalingam v. Sashiah [1813] 2 Strang N.C. 241, Hethdey v. Macartha [1823] Morton 159, Ram Lochan v. Gadadhar [1818] 2 Morley 162, Ramendra Deb v. Krishna Mohan [1818] 2 Morley 186 and Ward v. Hem Chandra [1819] 2 Morley 171]. There are moreover several instances where it was recognised that a man might have two residences, one in Calcutta and the other outside Calcutta. [Samacharan v. Harinath [1821] Morton 176, Khamah v. Sibpersad [1836] Morton 181, Golaknath v. Rajkissen [1841] Fulton 401 and Nisadini v. Kali Krishna [1864] Coryton 24]. This was also recognised by the Judicial Committee in Orde v. Skinner L.R. 7 I.A. 209 : S.C. ILR 3 All. 91 (101) (1880), where Sir James Colville observed that a man might have more than one dwelling place so as to become subject to the jurisdiction of each of the Courts within whose local jurisdiction his dwelling place was situated. To the same effect, is the decision of the Judicial Committee in Srinibash v. Venkata ILR 34 Mad. 257 : S.C. 15 C.W.N. 741 (P.C.) (1911), where they affirmed the decision of the High Court of Madras in Srinivash v. Venkata ILR 29 Mad. 239 (1906).
9. We may here advert to a consideration which was mentioned in the course of argument, namely, that residence, its continuance and abandonment, all imply intention : in other words, that residence is acquired by animo residendi is lost by leaving the place where one has acquired a permanent home and removing to another place animo non revertendi and is gained by remaining in such new place animo manendi. [Whithorn v. Thomas 7 M. & G. 1; 8 Soott. N.R. 783 (1844)]. From this point of view, it was argued that in the case of a lunatic, no question of residence can arise, as no intention can be attributed to him. In our opinion, there is no real substance in this contention. A similar question was raised with regard to the residence of a pauper lunatic under sec. 5 of Poor Law (Scotland) Act, 1898. [Parish Council v. Local Government [1915] A.C. 717]. It was ruled by the House of Lords, affirming the decision of Lord Dundas in Edinburgh Parish Council v. Local Government Board [1914] S.C. 241; 51 Scots, L.R. 192, that such a construction should not be put on the statute and that residence should be interpreted to import in such a case not intelligent residence but bodily presence. A similar view underlies the decision in Kallonas v. Collector of Backergunge 11 W.R. 109(1869) reported as Durant v. Chundernath 2 B.L.R. 246 (1869), where proceedings under Act XXXV of 1858 were taken against a person who had been for a number of years in involuntary confinement in a lunatic asylum.
10. In the case before us there can be no room for doubt that the alleged lunatic had two places of residence, one in Calcutta and the other in Pabna, that as resident in Calcutta, he was subject to the jurisdiction of this Court under sec. 38 of Indian Lunacy Act, 1912; that when in 1917 he went from his residence in Calcutta to his residence in Pabna, he did not cease to be subject to the jurisdiction of this Court; and that consequently the District Court at Pabna had no jurisdiction under sec. 62 to entertain the proceedings initiated by his wife. The result is that the order of dismissal made by the District Judge must be affirmed and this appeal dismissed. Each party will pay his own costs both in the District Court and in this Court.
Fletcher, J.
I agree.
Richardson, J.
I agree.
