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[Cites 7, Cited by 0]

Delhi District Court

Geeta Rani (Aged 53 Years) vs State on 17 January, 2019

             IN THE COURT OF DR. HARDEEP KAUR, ADJ­02
                  (SHAHDARA), KKD COURTS/DELHI.
                         (GP­14/2017)

In the matter of:­
1. Geeta Rani (aged 53 years)
   W/o Sh. Ashok Khatri
2. Puru Khatri ( minor, aged 16 years)
   S/o Sh. Ashok Khatri
   ( Through mother Smt. Geeta Rani)

Both R/o:­
A­2/33 (PART), Lane a­2,
Block­A, Krishna Nagar,
Delhi­110051.                            ...Petitioners

                    Vs.
1. State
   (through S.D.M., Gandhi Nagar)
   Bunkar Bhawan, Nand Nagri,
   Delhi­110093

2. Ashok Khatri ( aged 54 years)
   S/o Sh. Chaman Lal

3. Shaveta Rani (aged 35 years)
   D/o Sh. Ashok Khatri

4. Priya Rani (aged 33 years)
   D/o Sh. Ashok Khatri

5. Kanika Rani (aged 23 years)
   D/o Sh. Ashok Khatri

All r/o:­
    R/o A­2/33 (Part), Lane A­2,
    Block­A, Krishna Nagar,
    Delhi­110051                              ....Respondents

GP 14/2017
Page 1
                                  Date of Institution : 22.12.2017
                                 Date of Judgment: 17.01.2019
                                 Decision : Dismissed.



     [Petition Under Section 7,11 & 27 of the Guardian And
                        Wards Act' 1890]

JUDGMENT

1. Petitioner has filed the present petition under Section 7, 11 & 27 of the Guardians and Wards Act­1890.

2. Brief fact as stated in the petition is that the petitioner no. 1 is the owner of the property bearing no. A­ 2/23 (Part) (Southern Side), Krishna Nagar, Delhi­110051 measuring 80 Sq. Yds. (66.89 Sq. Mtrs.) consisting of Ground Floor, First Floor and Second Floor by virtue of Gift Deed dated 21.12.2009 executed by Smt. Kamla Sehgal (the real mother of the petitioner no. 1) in favour of the petitioner no. 1.

Petitioner no. 2 is the real son of the petitioner no. 1 and respondent no. 2, aged about 16 years approximately and they are the natural and lawful guardians of the petitioner no. 2 and he has been permanently residing with the petitioner no. 1 and respondent no. 2 to 5 in the aforementioned property.

Respondent no. 2 is the husband of the GP 14/2017 Page 2 petitioner no. 1 and the respondent no. 3,4 & 5 are the real daughters of the petitioner no. 1 and the respondent no. 2.

The petitioner no. 1 is the real daughter of Late Sh. Avtar Singh Sehgal (father) and Late Smt. Kamla Sehgal (mother). Smt. Kamla Sehgal executed the Gift Deed dated 21.12.2009 with regard to the aforesaid property in favour of the petitioner no. 1 and Smt. Kamla Sehgal had added the following conditions in the Gift Deed as clause no. 6 & 7:­

6. Now the Donee has become the absolute owner of the above said property and has acquired the ownership rights in the above said property and the Donee is free 'TO HAVE AND TO HOLD' and fully entitled to use the above said property as desired by her. However, the aforesaid property is being gifted to the Donee keeping in mind the welfare of Master PURU son of the Donee (grandson of the donor) presently aged about 10 years.

7. The Donee can use, enjoy and rent out any portion of the gifted part till Master PURU completes the age of 25 years, the Donee cannot sell the gifted part of the property till Master PURU completes the age of 25 years, only thereafter the donee can sell, mortgage GP 14/2017 Page 3 or transfer the aforesaid property in any manner. However the donee will enjoy the property in the capacity of an owner of the property from the day of execution of this Gift Deed.

On 26.04.2010, Smt. Kamla Sehgal, the mother of the petitioner no. 1 left for heavenly abode leaving behind the petitioner no. 1 and Sh. Deepak Sehgal ( the brother of the petitioner no. 1). In the year 2010, the petitioner no. 1 alongwith the petitioner no. 2 and respondent no. 2 to 5 shifted in the aforesaid property and till the filing of this petition has been residing in the suit property.

Due to some financial constraints, the marriage of the respondent no. 3 was dissolved by a decree of divorce. The petitioner no. 1 arranged the marriage of the respondent no. 4 in the year 2014, but due to the bad financial conditions of the family of the petitioner no. 1, the marriage of the respondent no. 4 was also broken.

The respondent no.2 had been doing the business of printing in Punjab prior to 2010 and even after 2010, continued his business of printing in M/s Sunam, Distt. Sangrur, Punjab despite permanently residing in Delhi. The respondent no. 2 had suffered losses in his business in Punjab and presently the respondent no. 2 is not doing any business.

GP 14/2017

Page 4 When the petitioner no.1 and her family shifted in the aforesaid property in the year 2010, the respondent no. 2 had rented out one small portion measuring 6 ft. X 10 ft. on the ground floor of the suit property at a security amount of Rs. 2,50,000/­ and the second floor of the suit property for amount of Rs. 3,00,000/­. The respondent no. 2 could not repay the amount of Rs. 5,50,000/­ and could not get vacated the ground floor and second floor portion of the suit property from the occupiers as the financial condition of the petitioner no. 1 and the respondent no. 2 deteriorated during the last 2­3 years.

The respondent no. 2 is out of business and unemployed. The respondent no. 3, 4 & 5 are also unemployed. The petitioner no. 2 is studying in Modern Public School, Senior Secondary, Rishabh Vihar, Delhi­ 110092 and the school fee of the petitioner no. 2 is Rs. 1450/­ per month and transport charges are Rs. 1000/­ per month and Rs. 2,500/­ on three subjects' tuitions. The petitioner no. 1 and the respondent no. 2 due to the bad financial condition are facing difficulty for the education of the petitioner no. 2 and are unable to give him good educational facilities (e.g. subject tuitions, Spoken English Classes and extra­curricular activities) as well as other things e.g. clothing, food, medical expenses etc. The petitioner no. 1 and the respondent no. 2 had GP 14/2017 Page 5 made their all best efforts to revive the business of the respondent no. 2 in Punjab and also made efforts to start new business of printing in Delhi, but the business of the respondent no. 2 remained in losses. The petitioner no. 1 and respondent no. 2 has no source of income and has been facing lots of financial crisis in maintaining the family including the expense of petitioner no. 2 and not in a condition to provide good education / tuitions, good clothing, medical facilities, proper food and transport expenses etc. to the petitioner no. 2.

On 25.03.2017, the petitioner no. 1 had offered the aforesaid suit property for sale, but it was advised by the proposed buyers that prior to selling the aforesaid property the interest of the petitioner no. 2 has to be considered. As per the information to the petitioner no. 1, the land value of the aforesaid suit property is about Rs. 49,05,600/­. The petitioner no.1 wants to enter into an agreement for reconstruction with the builder/contractor for the reconstruction of the aforesaid property and for the sale of two floors of the aforesaid property and want to retain two floors for the self occupation for the entire family. The petitioner no. 1 is ready to deposit the amount for the welfare of the petitioner no. 2 out of the aforesaid transaction in fixed deposit with the nationalized bank or as per the order/condition imposed by this Court.

GP 14/2017

Page 6 The petitioner no. 1 from the sale of two floors and the interest income from the FDRs in the name of the petitioner no. 2 can maintain and support the petitioner no. 2. The petitioner no. 1 on her behalf and on behalf of the petitioner no. 2 by way of this petition, is seeking the permission to sell two flats in the aforesaid suit property with the conditions imposed by this Court. The parties to the present suit except the respondent no. 1 are in physical possession of the first floor and portion of ground floor of the aforesaid property except the portion measuring 6 ft. X 10ft. The front portion measuring 6 ft. X 10 ft. on the ground floor is occupied by a person on security amount of Rs. 2,50,000/­. The entire second floor is occupied by a family on security amount of Rs. 3 lacs. Neither the petitioner no. 1 nor her husband has any regular source of income or any rental income.

The petitioner no.1 is the owner of entire aforesaid property by virtue of the Gift Deed dated 21.12.2009 and the petitioner no. 1 has taken financial help of Rs. 55,000/­ from her relatives and friends.

Hence, petitioners have filed the present petition with the prayers that:­

(a) the petitioner no. 1 may kindly be permitted to enter into an agreement for reconstruction with the builder/ GP 14/2017 Page 7 contractor for the reconstruction of the suit property and further may kindly be permitted to sell the two floors of the suit property for the survival and for the welfare of the petitioner no. 2 and be permitted to retain two floors of the suit property i.e A­2 / 23 (Part) (Southern Side), Krishna Nagar, Delhi­110051 being his natural guardian and further necessary permission be also granted to the petitioner no. 1 with regard to the consideration amount received after selling the two floors of the aforesaid property in the interest of justice; (aa) Or in the alternate, the petitioner no.1 may kindly be permitted to sell the entire aforesaid property bearing no. A­ 2/23 (Part) (Southern Side), Krishna Nagar, Delhi­110051 measuring 80 sq yards owned in the name of the petitioner no. 1 and permit the petitioner no. 1 to spend 1/3rd of the consideration amount for the purchasing a new flat/floor for residential purpose for the entire family and further to invest the 1/3rd of the consideration GP 14/2017 Page 8 amount in the shape of one FDR, so that the education and other expenses of Master Puru Khatri can be maintained from the interest accrued from the said FDR and 1/3rd be spent on the marriages of the daughters of the petitioner no. 1 and further necessary directions may also be given to the petitioner no. 1 in the interest of justice.

3. A valuation report has been filed by Naib Tehshildar (Gandhi Nagar) on 01.05.2018 regarding shop No. A­2/23 (Part) (Southern Side), Krishna Nagar, Delhi­ 110051, and according to report value of property is Rs. 65,65,922/­.

4. Respondent no. 2 to 5 duly served and they filed their no objection.

5. PW­1 /petitioner no. 1 tendered her evidence by way of affidavit and rely upon the following documents:­

1.Copy of gift deed dated 21.12.2009 as Ex. PW 1/1 (OSR)

2.Copy of Birth certificate of petitioner no. 2 as Ex PW 1/2 (OSR)

3.Copy of Aadhar Card of petitioner no. 1 as EX PW 1/3 (OSR)

4.Copy of Aadhar Card of petitioner no. 2 as EX PW 1/4 (OSR)

5.Copy of certificate issued by Modern GP 14/2017 Page 9 Public School Rishabh Vihar, Delhi­92 dated 05.05.2017 as EX PW 1/5 (OSR)

6. Copy of school fee receipt of the petitioner no. 2 as Ex PW 1/6 (OSR)

6. This court has heard the submissions of Ld. counsel for petitioner and gone through the material placed on record.

7. Petitioners filed the present petition under Section 7, 11 & 27 of the Guardians and Wards Act­1890. The Guardians and Wards Act, 1890, consolidate and amend the law relating to guardians and wards and Section 4 of the Act defines "minor" as a person who has not attained the age of majority. The word "guardian" means a person having the care of the person of minor or his property or both his person and property and the "ward" is defined as a minor for whose person or property or both, there is a guardian. Section 7 of the said Act deals with the power of the court to make order as to guardianship which is as under:­ "7. Power of the court to make order as to guardianship:

(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made.
(a) appointing a guardian of his person or property or both, or GP 14/2017 Page 10
(b) declaring a person to be such a guardian, the court may make an order accordingly, 92) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.
(2) An order under this Section shall imply the removal of any guardian who has not been appointed by will or the instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provision of this Act."

Section 11. Procedure on admission of application.­ (1) if the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for hearing thereof and cause of notice of the application and of the date fixed for the hearing......

(2).....

(3)....

GP 14/2017

Page 11 Section 27­ Duties of guardian of property.­ A guardian of the property of ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property.

8. Section 7 of The Guardian and Wards Act­1890 deals with the power of the Court to make order as to guardianship where the court is satisfied that it is for the welfare of the minor that an order should be made (a) appointing a guardian of his person or property or both, or

(b) declaring a person to be such a guardian. In the present petition, firstly petitioner no. 1 has not sought any prayer for appointment/ declaration of guardian of the person and property of her minor son i.e. petitioner no. 2 and secondly, petitioner no. 1 sought permission :­

(i) to enter into an agreement for reconstruction with the builder/contractor for the reconstruction of property bearing no. A­2/23 (Part) (Southern Side), Krishna Nagar, Delhi­110051;

(ii) to sell the two floors of the property for the survival and for the welfare of the petitioner no. 2;

(iii) to retain two floors of the property ie A­2/23 (Part) GP 14/2017 Page 12 (Southern Side), Krishna Nagar, Delhi­110051 being his natural guardian;

(iv) to receive consideration amount after selling the two floors of the aforesaid property in the interest of justice.

Alternatively, the petitioner no.1 sought permission :­

(i) to sell the entire aforesaid property bearing no. A­2/23 (Part) (Southern Side), Krishna Nagar, Delhi­110051 measuring 80 sq yards owned in the name of the petitioner no. 1;

(ii) to spend 1/3rd of the consideration amount for purchasing a new flat/floor for the residential purpose for the entire family;

(iii) to invest 1/3rd of the consideration amount in the shape of one FDR;

(iv) to spend 1/3rd consideration amount on the marriages of the daughters of the petitioner no. 1.

Record shows that Gift Deed (EX PW 1/1) contains non alienation clause which is as under:­ "The Donee can use, enjoy and rent out any portion of the gifted part till Master PURU completes the age of 25 years, the Donee cannot sell the gifted part of the property till Master PURU completes the age of 25 years, GP 14/2017 Page 13 only thereafter the donee can sell, mortgage or transfer the aforesaid property in any manner. However the donee will enjoy the property in the capacity of an owner of the property from the day of execution of this Gift Deed".

It is relevant to discuss here Section 28 of The Guardian & Wards Act ­1890, which is as under:­

28. Power of testamentary guardian.­ Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.

In view of aforesaid discussions, this court is of the considered opinion that petitioners are not entitled to the relief sought in the present petition as petitioner no. 1 has not sought any prayer for declaration of guardian in the present petition. Further, Section 28 of the Guardian GP 14/2017 Page 14 and Wards Act gives power to the Court to give permission to dispose off the property to the guardian appointed by WILL or other instrument, notwithstanding the restriction specified in the WILL or other instrument.

In the present petition there is non alienation clause in the gift deed Ex PW 1/1 but petitioners have not filed present petition u/s 28 of Guardian & Wards Act 1890.

Hence, the present petition stands dismissed. File be consigned to record room.

(Typed to the dictation directly, corrected and pronounced in the open court on 17.01.2019) (Dr. Hardeep Kaur) ADJ­02(SHD)/KKD/Delhi (This judgment contains 15 pages) GP 14/2017 Page 15