091-NLR-NLR-V-53-VYTHILINGAM-Appellant-and-ARUNASALEM-Respondent.pdf
417
BOSE C.J.—Vythilingam v. Arunasalem
1952Present: Rose C.J. and Choksy A.J.VYTHILINGAM, Appellant, and ARUNASALEM, RespondentS. C. 112— D. C. (Inty.) Jaffna, 40
Jurisdiction—Action in lunacy—Proper forum for institution—“ Residence "—CivilProcedure Code, s. 656 (1).
Where application was made under section 556 of the Civil Procedure Codein the District Court of Jaffna in respect of an alleged lunatic who had beenresiding in JaSna but who for four years immediately preceding the applicationwas sojourning in the Mental Hospital at Angoda—
Held, that the District Court of JafEna had no jurisdiction to entertain theapplication and that the appropriate court was the District Court of Colombowithin whose jurisdiction the Angoda Mental Hospital lies.
A PPEAL from an order of the District Court, Jaffna.
H. W. Tambiah, with V. Batnasabapathy and Q. S. -Thavathuray, forthe petitioner appellant.
C. Vanniasingham, with G. Shanmuganayagam, for the 1st respondent.
Cur. adv. vult.
February 8, 1952. Rose C.J.—
This matter concerns the interpretation of the word “ residingin Section 556 (1) of the Civil Procedure Code (Cap 86). The sub-sectionreads as follows: “ Whenever any person who is possessed of propertyis alleged to be a lunatic, the District Court within whose jurisdictionsuch person is residing may, upon such application as is hereinaftermentioned, institute an inquiry for the purpose of ascertaining whethersuch person is or is not of unsound mind and incapable of managing hisaffairs.”
– 14J. K. B. 69182(10/57)
418
HOSE C.J.—Vythilingam V. Arunasalem
The application was made in the District Court of Jaffna, Jaffnahaving been the place of residence of the person alleged to be a lunaticprior to his sojourn in the Mental Home of Angoda for a period of atleast four years immediately preceding the present application.
The term “ residing ” and “ residence ” are not terms of art and Itherefore agree with the contention of learned counsel for the respondentthat, in the present context, effect should be given to the natural andordinary meaning of the word “residingThereishigh judicial
authority 1 for the proposition that “residence”meanstheplace where a
person “ eats, drinks and sleeps ”,or in thewordsofPollock C.B.*
“ where he is chiefly to be found ”, which interpretation would seemto be eminently in accord with the natural and ordinary meaning of theword.
The appellant contends that these wordshave noapplication to a
lunatic, in that the element of volition may be deemed to be absent andthat therefore his case is analogous to that of a convict undergoinga sentence of imprisonment, who is not regarded as “ residing ” in thegaol in which he is confined.
It seems to me that there is a clear distinction between the two cases.In the case of a lunatic there is, at the most, an absence of volition; sothat in the case of a lunatic or an alleged lunatic—it is to be noted thatthe sub-section draws no distinction between the two-^-his residencecan, in my opinion, properly be ascertained by applying a factual testbased upon his physical presence,irrespective oftheelement ofvolition.
Whereas in the case of a convicta contrary volitionis deemedto exist,
which contradicts the factual position of hi's confinement.
English authorities on the question as to where a lunatic or an allegedlunatic resides are of little value because the statutes under considerationdiffer from our own. They do, however, indicate that there is nothinginherently repugnant to the mind of the English Legislature in theconception that a lunatic may be regarded as residing in a mental hospitalor asyium if that happens tobe the placewhere he is“ chiefly
to be found ” at the relevant time.
As far as our own Civil Procedure Code is concerned, there wouldseem to be no good reason to depart from the simple interpretation ofresidence to which I have previously referred. Moreover, Section 6 (2)of the Lunacy Ordinance (Cap. 177) provides that a pauper who is con-fined in an asylum shall onhis recoverybeconveyedback by
Government " to his own village or usual place of former residence ”.
For these reasons I am of opinion that the learned District Judgewas correct in holding that he had no jurisdiction to entertain the inquiryand that the appropriate court was the District Court of Colombo withinwhose jurisdiction the Angoda Mental Hospital lies.
The appeal is therefore dismissed with costs.
Choksy A.J.—I agree.
Appeal dismissed.
1 Per Bayley J. in R. v. North Curry 4 B. tb C. 959.
* Per Pollock C. B. in Attenborough v. Thompson 27 L. J. Ex. 25.