Delhi District Court
Through Her Spa/ Father vs The State on 12 January, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE-02, SOUTH-WEST DISTRICT, DWARKA
COURTS, DELHI
GP No.:28/22
CNR No.: DLSW010071372022
IN THE MATTER OF:
Smt Poonam Goel
W/o Late Sh Kapil Goel
Permanent R/o Flat No. 7
IES Officers CGHS Ltd
Plot No. 9, Sector-4, Dwarka
New Delhi - 110078
Presently AT: Flat No. 403, 4th Floor
A-Wing, Amrut CHS, Powai Park
High Street , Hirandandani Gardens
Powai, Mumai, - 400076
Through Her SPA/ Father
Sh Ramesh Kumar Gupta
S/o sh R.J.Gupta
R/o C-507, Upper Ground Floor
Street No.11, Majlis Park
Adarsh Nagar, Delhi - 110033 ... Petitioner
v.
The State
Through Deputy Commissioner
South-West District
Old Tax Terminal Building
Kapashera, New Delhi - 110037 ... Respondent
GP No. 28/2022 Page No.1/11
Date of filing of petition: 15.07.2022
Date of judgment reserved: 12.01.2023
Date of pronouncement of judgment: 12.01.2023
JUDGMENT
1. The petitioner, namely, Poonam Goel has preferred a petition under Section 7,8,9,10 & 11 of the Guardians &Wards Act, 1890 (hereinafter "the Act") seeking permission to sell the share of Baby Anaysha Goel (hereinafter 'the subject minor'_ i.e. 16.66% of the total property i.e. 83.71 sq meters in the built up Flat No. 7, Second Floor, Block I, in the layout plan of IES Officers Co-operative Group Housing Society Ltd situated at Plot No. 9 Sector 4, Dwarka, New Delhi - 110078 (hereinafter' the subject property').
2. Briefly stated in the petition is that petitioner, namely, Smt Poonam goel is the widow of Late Sh Kapil Goel (hereinafter 'the deceased')and is the mother of the subject minor, namely, Anaysha Goel. It is further stated in the petition that the husband of the petitioner and father of subject minor expired on 18.06.2021.
3. It is further averred in the petition that petitioner alongwith his deceased husband had purchased the subject property in their joint names. It is further averred in the month of April 2021, the deceased husband of the petitioner suffered with Covid-19 and due to this he died on 18.06.2021. It is further averred that during the time of hospitalization around 62 lakhs were being spend GP No. 28/2022 Page No.2/11 upon the treatment and medicines of the deceased husband of the petitioner. It is further averred that entire bill amount was paid by the petitioner by borrowing money from here and there on debts and interest and because of the same the petitioner comes under huge debts of several persons and relatives who has supported her financially during the time of hospitalization/ treatment of the husband of the petitioner.
4. It is further averred in the petition that after the death of deceased Kapil Goel, he has left behind the petitioner Smt Poonam Goel, the subject minor and parents of deceased namely Sh Rajeshwar Kumar Goel and Smt Shakuntala Devi and being the Class I legal heir of deceased are entitled in the 50% share of the deceased in the subject property and accordingly averred that subject minor has 1/3rd share of 50% i.e. 16.66% in the subject property of her father.
5. It is further averred in the petition that petitioner wants to sell the property to repay the amount which she had taken from several relatives and close friends. It is further averred in the petition that petitioner will deposit the share of the subject minor in any nationalized bank, till the date the minor attains the age of majority. Hence, it is prayed that petitioner be appointed as guardian of subject minor with the permission to sell the share of the subject minor.
6. The petitioner has averred that the jurisdiction of the Wards Court is being invoked, as the deceased died within the jurisdiction of this Court.
GP No. 28/2022 Page No.3/117. Notice of the petition was issued by this Court to the State (Govt. of NCT of Delhi) through Chief Secretary to the concerned Collector to file the valuation report of the subject properties. In response to the same on 13.09.2022, Tehsildar, Dwarka has filed the valuation report of the subject property with respect to subject minor i.e.16.66% of the total property i.e. 83.71 sq meters as ₹12,25,024.13/- (Rupees Twelve lakh Twenty five thousand and twenty four only).
8. Notice of the petition was also published in The Statesman, an English and Veer Arjun a Hindi daily both dated 03.08.2022. A notice of the petition was also pasted on the notice board of this Court.
9. Notice of the petition was also issued to the close relative of subject minor and in response of the same, grand parents of subject minor, namely, Sh Rajeshwar Kumar Goel and Smt Shakuntala Devi, paternal aunt (bua) of the subject minor, namely, Sonia and paternal uncle (tauji) of the subject minor, namely, Yogesh Goel appeared in the court and deposed that they have no objection if the petition is allowed in favour of petitioner. Their statements to this effect have been recorded separately.
10. The petitioner stepped in the witness box, as PW1 on 15.12.2022 and tendered evidence by way of an affidavit Ex.PW1/A along with following documents:
S.No. Particulars of documents Documents marked as
1. Death certificate of Late Sh Kapil Ex PW1/1 (OSR) GP No. 28/2022 Page No.4/11 Goel
2. Sale deed dated 09.04.2012 Ex PW1/2 (OSR)
3. Relinquishment deed Ex PW1/3 (OSR)
4. Surviving membership certificate Ex PW1/4
5. SPA given to deponent by the Ex PW1/5 (OSR) petitioner
6. Aadhar card of subject minor Ex PW1/6 (OSR)
11. Learned counsel for the petitioner at the outset submitted that petitioner and her deceased husband are the joint owner of the subject property. Ld. Counsel further submitted that after the death of the husband of the petitioner, petitioner alongwith subject minor and her in-laws become the Class I legal heirs of deceased and as such subject minor become the owner of 1/ 3rd share of 50 % share of deceased. Ld. Counsel further submits that petitioner undertakes to deposit the share of the subject minor in FDR form with the recognized bank till the subject minor attained the age of majority.
12. Learned counsel for the petitioner submitted that as per Section 8(5) of the Act that in respect of an application obtaining permission of the Court under Section 8(2) of the Act, the Guardians and Wards Act, 1890 (hereinafter "Wards Act") shall apply, as if it were an application under Section 29 of the Wards Act. The learned counsel for the petitioners further submitted that the petitioner is entitled , as per Section 6 of the Act and Section 8 of the Wards Act and the petitioner has adduced evidence in GP No. 28/2022 Page No.5/11 support of the petition, as per the mandate of Section 13 of the Wards Act.
13. Learned counsel for the petitioner further submitted that Section 7 of the Wards Act empowers the District Court to appoint a guardian in respect of the person or property or minor to the satisfaction of the Court, if the same is for the welfare of the minor. The learned counsel laid emphasis that the petitioner No.1 regardless of being a widow at a young age decided not to remarry and has kept the best interest of her children, as paramount.
14. The learned counsel for the petitioner stressed that Section 8 of the Act and Section 29 of the Wards Act does place certain restrictions on the guardian so appointed to deal with the property of the minor, except with the permission of the Court.
Specifically, Section 29(a) of the Wards Act, requires a guardian appointed by the Court to seek previous permission of the Court for sale of any part of the immovable properties of the subject minor. The learned counsel further submitted that Section 31 of the Wards Act, empowers the Court to grant the permission under Section 29 of the Wards Act and lays down the procedure, which may be followed inter alia sub-Section 3(b) for sale of the immovable property of the minor. In granting permission sought by the appointed guardian to sell the minor property, necessity or an evident advantage to the minor, is an essential requirement under sub-section (1) of Section 31 of the Wards Act.
GP No. 28/2022 Page No.6/1115. This Court observes that the petitioner has not filed any objections to the valuation of the property in question. Thus, the valuation of the immovable property, as per the concerned Tehsildar, Dwarka, report is taken, as correct and true value of the subject property qua the share of the minor - See Section 19-H of the Court Fees Act, 1870.
16. No objections were received to the petition, from any quarter despite publication of citations in newspaper. Accordingly, this court observes that there is no impediment to grant letter of administration with respect to subject property of deceased in the favour of the petitioner No.1.
17. Under Section 17 of the Wards Act, the Court is essentially required to determine whether the declaration of a particular person, as a guardian of the minor and her property would be for the welfare of such minor. Due regard should be had to the age, sex and relation of the minor, the character and the capacity of the proposed guardian and nearness of the kin to the minor.
18. The Hon'ble High Court of Delhi in Smt. Sakshi Devi v. State of NCT of Delhi1 held that the object of taking permission from the Court for selling of the property is to ensure that interest of minor is protected and the property is sold for legal necessity. The Court further held that taking care of the minor and upkeep and maintenance is a legal necessity. The Court held that a legal 1 FAO No. 123/2014 decided on 25.04.2014 GP No. 28/2022 Page No.7/11 necessity or benefit of the minor exists for selling the minor share.
19. In the present case, in the petition it is specifically pleaded by the petitioner that she will deposit the share amount of the sale consideration of the subject minor in the form of FDR with the recognized bank and for upbringing and betterment of the subject minor. As observed in judgment titled as Smt Sakshi Devi (Supra), presumptions tilt in favour of the petitioner being the biological mother of the subject minor.
20. On the above parameters, this Court observes that the petitioner is the biological mother of the subject minor, and her being a natural guardian has natural bond of love, affection and due care towards the minor. The unfortunate experience of the death of petitioner husband and subject minor's father at a young age, has apparently brought the petitioner at a cusp of life and being burdened with a unique position to shoulder the daily upbringing, care-giving and to fend all responsibilities like in the present matter to repay the amount borrowed from friends and relatives for treatment of deceased husband suffering from Covid-
19. Even though, the petitioner has not proved the medical record of her deceased husband but petitioner has filed the patient bill summary receipt issued by Venkateshwar Hospital alongwith the petition to show the expenditure occurred in the treatment of her deceased husband. This Court deems it appropriate that the petitioner herein would be the best suited guardian for the GP No. 28/2022 Page No.8/11 property of the subject minor and such the appointment and declaration, as a guardian would be in the best interest and welfare of the minor.
21. This Court observes that the petitioner has not only clearly culled out the ingredients of Section 31 of the Guardians and Wards Act i.e. case of necessity as well as evident advantage to the wards but also has a favorable case to seek permission, as the petitioner has portrayed the case of necessity in the peculiar facts and circumstances and the grant of permission to sell the subject property would be not only for an evident advantage to the subject minor but also to repay the debts.
22. This Court accordingly orders that the petitioner be appointed as the guardian of the subject properties of the subject minor. The petitioner is also granted permission apply for freehold conversion and petitioner is further granted permission to sell the share of the subject minor i.e. (1/3rd i.e. 16.66%) in the subject property. Let a guardianship certificate in Form - 'F' be issued in favour of the petitioner namely, Shivani and the petitioner's attention be drawn, particularly to the provisions of Sections 26, 27, 28, 29, 32, 33, 35, 36, 39, 44 and 45 of the Wards Act.
23. The guardianship certificate shall be issued subject to filing of an indemnity bond in terms of Section 34(a) of the Wards Act GP No. 28/2022 Page No.9/11 read with Rule 52 of (hereinafter "the Rules"), in the sum of the valuation of the subject property qua the 1/ 3rd i.e. 16.66% share of subject minor, with one surety of the like amount. The bond shall be in Form - 'D' annexed to the said Rules3.
24. The petitioner is directed to act as a reasonable prudent person and sell the subject property including the share of the minor as per the prevailing market value of the property. She is further directed to file the statement of account alongwith copy of the sale deed executed in favour of the proposed buyer showing the sale consideration received and the 1/ 3rd i.e. 16.66% share of the subject minor shall be deposited, as a fixed deposit fetching highest rate of interest with auto renewal facility in a nationalized bank until the subject minor attains the age of majority. The same shall be done under intimation to this Court and the certified copy of the sale documents along with certified copy of FDR by the bank shall be placed in Court within two weeks from the date of the sale deed and completion of sale transaction. However, under no circumstance, this order shall be construed as an expression of opinion on the title of the minor over the subject property.
25. This Court deems it necessary to direct the guardian (petitioner herein) that in case there is no bank account of the subject minor, to open a bank account with the nationalized bank 2 Chapter 2, Guardians and Wards, Part B - Rules, Volume II of the High Court Rules and Orders (Part D, Rules Relating to Special Jurisdiction in Delhi High Court) 3 ibid.
GP No. 28/2022 Page No.10/11closest to their place of residence or at State Bank of India, Dwarka Courts Complex, New Delhi in the name of the subject minor through the guardian. In order to enable the opening of a bank account in the name of the subject minor through the guardian, let an attested copy of the guardianship certificate be also supplied to the petitioner No.1 for compliance and necessary action.
26. The petition is disposed of in above terms. File be consigned to record room only after due compliance and Digitally signed necessary action, as per Rules.
SACHIN by SACHIN JAIN
Date:
JAIN 2023.01.12
16:17:40 +0530
Pronounced in the open (Sachin Jain)
Court on 12.01.2023 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
GP No. 28/2022 Page No.11/11