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The Need for a Legislative Panacea For Mentally Challenged Persons To Dispose Off Their Property


The property of a minor can be disposed off upon obtaining the permission of the concerned court. This has been envisaged under Section 8 of the Hindu Minority and Guardianship Act, 1956 and Section 28 of the Guardian and Wards Act, 1890. A guardian of property is provided with such an authority in order to protect the interest of minor, who is incapable of making decisions for himself.

Likewise, a lunatic person, as defined under the Indian Lunacy Act, 1912, included in its ambit the mentally retarded person and was accorded similar protection as regards to their property under Section 75 of the Act. Even after the repeal of the Indian Lunatic Act with the Mental Health Act, 1987 (MH Act), this protection continued as regards mentally ill persons were concerned. However, in the MH Act, mentally retarded persons were specifically excluded and thus the benefit of the provision was denied to them.

Although, mentally challenged (interchangeably used with mental retardation) persons are not seen as minor, the principle of non sui juris i.e. the incapacity to make decisions, applies to them. Unfortunately, no similar leeway, as that provided to minors and lunatics, are provided to them.

There exists a legal lacuna as regards protection of the property of mentally challenged persons, especially regarding the disposal of their immovable property for the ‘necessity’ or ‘benefit’ of them. Although the Parliament has passed multiple legislations for regulating aspects related to that of mentally ill patients, none of them have included a mentally challenged person within its gamut or scope of application.


Section 3(5) of the Indian Lunacy Act, 1912, which is now repealed, had defined a lunatic as a person who is an idiot or a person of unsound mind. This had been interpreted to include a mentally retarded person. Section 75 of the Act had empowered a guardian, appointed under the Act to sell off a lunatic’s property upon receiving sanction from the court concerned. However, this Act was repealed by Section 98 of the MH Act.

Section 2 (l) of the MH Act defines a mentally ill person as “a person who is in need of treatment by reason of any mental disorder other than mental retardation.” The section explicitly excludes a mentally retarded person from the ambit of the MH Act.

Section 54 of the MH Act provides for appointing a guardian to manage the property of a mentally ill person and Section 59 empowers such a person to dispose off such a property subject to the approval of the court.

In the Mental Healthcare Act, 2017 (Healthcare Act), which replaced the MH Act, albeit providing for an expansive definition, exclusively left out mental challenged from its ambit. Surprisingly, no provision is found in the Act for disposal of a mentally ill person’s property also, unlike the MH Act. In the case of the National Trust Act, Section 2(g) defines mental retardation, thereby including it within its ambit. However, in this context, the National Trust Act provides only for the constitution of a body which shall receive bequests of movable property from any person for the benefit of a mentally retarded person.

This did not resolve the quagmire, as a mentally challenged person, who has sufficient property cannot realise any of his property into monetary form for taking care of his basic necessities or for his personal benefit. Furthermore, whether the Rights of Persons with Disabilities Act, 2016 (RPWD Act), intended to include mentally retarded persons within its ambit is unclear. Courts are yet to decide on the matter.

Section 2 (s) of the Rights of Persons with Disabilities Act, 2016 (RPWD Act) defines a person with disability. Moreover, Sections 13 and 14 of the RPWD Act states that a person with disability will have the legal capacity to own or inherit property and the right to make use of a limited guardian to take decision which are legally binding on his behalf respectively. Clause 3 of the schedule to the Act explicitly states that mentally challenged person does not fall under the category of mental behaviour.

Additionally, Section 14 of the Act provides for a person with disability to avail the support of a limited guardian “to take legally binding decisions on his behalf in consultation with such person”. The explanation to clause 1 envisages limited guardianship as a ‘system of joint decision’ and ‘mutual understanding’. The question then arises as to how the section operates, if a mentally challenged person is included, as such a person, by his mental condition is incapacitated to have a consultation process.

Therefore, the existing laws are inadequate in light of the issue at hand. Thus, while a minor or a mentally ill person was given the legal benefit of raising money for their necessity or benefit, with the permission of the court, such a legal right was not provided to a mentally retarded person.


A temporary respite came in the form of the judgment of the High Court of Kerala in the case of Narayanankutty Menon vs State of Kerala. Justice V. Giri agreed with the petitioner’s argument that there exists a vacuum in the existing law, as there is no statutory framework which provides for aspects related to the appointment of a guardian for a mentally retarded person, for managing his property and for related matters. The court held that suitable modifications were needed in the form of legislative interference and asked the government to look into the matter and come up with a way to resolve the problematic situation.

As a later development, a review petition was filed by the petitioner in relation to his earlier argument about the absence of a statutory framework for the appointment of a guardian for the person and property of a mentally retarded person. He corrected his earlier statement and brought the courts attention to the National Trust Act, wherein section 14 provides for the appointment of a guardian for persons with disability.

The contention before the court was that despite the existence of such a provision, the aspect relating to appointment of a guardian for the management of the property of a mentally retarded person stands unfulfilled, as the Act only provides for the appointment of a guardian for a mentally retarded person and not for his property.

The court interpreted the legislative intent of the National Trust Act to hold that appointment of a guardian for a person under Section 14 includes the power to act as the guardian of managing the property of such a person. Thus, the court stretched the purpose of the enactment beyond the literal meaning, resulting in a court made law in the subject.

Though the grey area was resolved, the court went further to hold that it would be better on the part of the legislature to provide specific provisions for the same, in lines of that given under the now repealed MH Act. However, despite the passing of more than a decade, no such legislative intervention, even in the form of a bill introduced in the Parliament, has occurred till date.

legislative intervention

Courts have generally seen it as their duty to interject in certain scenarios. In Common Cause vs Union of India, the Supreme Court has laid down that while a judicial legislation in matters of expansion of the constitution or a statutory provision is legitimate, the same cannot be said for an intervention which goes on to make new laws.

In the case of Vishaka vs State of Rajasthan, the Supreme Court on recognizing the vacuum in law relating to sexual harassment in workplace, laid down elaborate guidelines for the same. The court justified its actions by believing that it acted as an interim parliament and legislated on the subject until the legislature intervenes.

Similarly, in the case of Narayanan Kutty Menon, a judge made law temporarily filled the vacuum, thereby resulting in a ‘judicial legislation’. The judgment had also specifically called for legislative intervention on the subject matter.

This decision was relied on by the Delhi High court in two cases that came into being subsequently. Both the cases reiterated the stand of the Kerala High Court and held that on cumulatively reading Section 13 to 15 of the National Trust Act, it becomes evident that the local committee formed under the Act has the power to deal with the both the person and property of a mentally retarded person.


The Healthcare Act and RPWD Act were enacted to replace the previous legislations and to be in consonance with United Nations Convention for Rights of Persons with Disabilities (UNCRPD). Article 12(5) of the UNCRPD states that measures must be taken by the state to ensure the persons with disabilities are in a position to ‘control their own financial affairs’. However, amended Acts passed by the Indian Parliament categorically failed to adhere to the obligation under Article 12 of the UNCRPD.


Although numerous legislations have been enacted by the parliament, none have successfully addressed the issue of disposal of property by mentally challenged persons, even for their livelihood or for other necessities. The judiciary tried to read it in, while simultaneously asking for a solid legislative backing for the same. However, such an action has not yet been taken. Given a situation where there is transfer of property of a mentally retarded person, the vagueness of the existing laws questions the legality of such transfers.

There is a necessity for a more comprehensive legislative intervention, which is ameliorating in nature and irons out the complications existing in the current position of law and provide a comprehensive framework for mentally challenged persons, specifically in regards to disposing off their properties and securing their future. There is a need to do justice for mentally challenged persons, like any other citizen of the country.

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