Bombay HC Appoints Sr Adv Nitin Thakker As Legal Guardian And Manager Of All Properties & Assets Of 87-year-old Lawyer Who Is Now Incapacitated [Read Petition]

The Bombay High Court while hearing an 'unusual suit' filed by Senior Advocate Nitin Thakker and another advocate who worked for 87-year-old Solicitor and Advocate Kirit Damania previously for several years, Court invoked inherent power under Section 151 of CPC and declared Nitin Thakker as the lawful guardian and manager of all assets and affairs of the octogenarian who is incapacitated at present after he was hospitalised on July 25 and is presently in critical condition.

Justice GS Patel observed-

"Mr Damania is neither mentally challenged nor of unsound mind nor a minor. He has no family. He is incapacitated by an illness and the current laws of guardianship do no provide any recourse in a situation like this. This is therefore something of a vacuum in law that however does not mean that Courts are helpless or that situations such as these should go unattended or unaddressed."

Kirit Damania started his practise as a lawyer with the firm M/s Bhaisankar Kanga & Girdharilal and later he started his own firm called M/s Kirit N Damania & Co. and is the sole proprietor. In 2006, Mr.Damania started a charitable trust called Shri Rang Avdhoot foundation along with two others as trustees. Mr.Damania suffers from several health problems including heart and kidney. He also has diabetes and blood pressure. He has a caretaker, a servant and one personal chauffeur. Apart from this, he has no family. He lives alone in an apartment at Mahalaxmi.

He was admitted to the ICU at HN Reliance Foundation Hospital on July 25, 2020. After being in the ICU for a few days, Mr.Damania was shifted to a room and is now completely bed-ridden and incapable of making any cogent decisions for himself. Even though he was conscious, he could not recognize anyone. Also, Mr.Damania never issued any Power of Attorney and a few days back, he had an attack of meningitis and his condition is now said to be critical.

Senior Advocate Sharan Jagtiani appeared on behalf of the two plaintiffs and submitted that Mr.Damania's present hospital bills are significant, over one lakh per day and are being partly paid through his credit cards and partly by his friends and well wishers. Moreover, it is not possible for Mr.Damania to operate his bank accounts or to attend to his daily affairs. Thus, Jagtiani urged that the application for his client to be appointed legal guardian be allowed.

Justice Patel observed-

"The present case falls only partly within the provisions of Order 32-A (2)(c). But as this plaint points out, the state of law in India simply does not make any sort of provision for a situation such as the present one.

Mr Damania is neither mentally challenged nor of unsound mind nor a minor. He has no family. He is incapacitated by an illness and the current laws of guardianship do no provide any recourse in a situation like this. This is therefore something of a vacuum in law that however does not mean that Courts are helpless or that situations such as these should go unattended or unaddressed."

Drawing support from Order 32 A of CPC, previous order passed by Justice SJ Kathawalla and Section 151 of CPC, Justice Patel decreed the suit and declared Senior Advocate Nitin Thakker as the lawful guardian.

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