Kerala High Court
Radhakrishnan Nair vs Latha Mohan on 21 January, 2016
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938
MFA (G&W) No. 24 of 2016 ()
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AGAINST THE ORDER IN OPGW 196/2015 of ADDL. D.C. & SESSIONS COURT - V,
KOLLAM DATED 21-01-2016
APPELLANTS/PETITIONERS:
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1. RADHAKRISHNAN NAIR
AGED 47 YEARS, S/O.SURENDRAN NAIR,
SANTHINIKETHAN, VADAKKUMKARA KIZHAKKE CHERRY,
THAZHUTHALA VILLAGE, KOLLAM - 691 589.
2. PONNAMMA ITTY AMMA
AGED 71 YEARS, W/O.SIVASANKARA PILLAI,
THENGUVILA VEEDU, POOTHAKULAM CHERRY,
POOTHAKKULAM VILLAGE, KOLLAM - 691 302.
BY ADV. SRI.G.BHAGAVAT SINGH
RESPONDENTS/RESPONDENTS:
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1. LATHA MOHAN
AGED 51 YEARS, D/O.PONNAMMA,
NADAYIL KIZHAKKATHIL VEEDU,
POOTHAKULAM CHERRY,
POOTHAKULAM VILLAGE, KOLLAM - 691 302.
2. JAYATHI
AGED 40 YEARS, D/O.PONNAMMA ITTY AMMA,
PAZHINJIYIL VEEDU, VELAMANOOR,
PARIPPALLY,KOLLAM - 691 574.
In the matter of Minor Wards:
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1. ARUNKRISHNAN (MINOR) AGED 17 YEARS,
S/O. RADHAKRISHNAN NAIR,
SANTHINIKETHAN, VADAKKUMKARA KIZHAKKE CHERRY,
THAZHUTHALA VILLAGE, KOLLAM-691589
(DATE OF BIRTH 14-07-1998)
2. AJITH KRISHNAN
AGED 9 YEARS, S/O. RADHAKRISHNAN NAIR,
SANTHINIKETHAN, VADAKKUMKARA KIZHAKKE CHERRY,
THAZHUTHALA VILLAGE, KOLLAM-691589
(DATE OF BIRTH 22-09-2006)
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2016, THE
COURT ON 26-05-2016 DELIVERED THE FOLLOWING:
AMG
C.K. ABDUL REHIM, J.
&
SHAJI P. CHALY, J.
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M.F.A (G&W) No. 24 OF 2016
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DATED THIS THE 26th DAY OF MAY, 2016
J U D G M E N T
Abdul Rehim, J:
The appellants herein are the applicants before the Additional District Court-V, Kollam in OP (G&W) No.196/2015. The appellants approached the court below for appointment of the 1st appellant as the guardian of his two minor wards and to ratify the sale of the immovable property conducted by the 2nd appellant in favour of the 1st respondent, as per Ext.A5 sale deed. The application before the court below was filed under Sections 7, 8 , 9, 28, 29 & 30 of the Guardian and Wards Act, 1890 and under Rule 10 of the Rules framed thereunder.
2. One Smt. P.S. Jaya @ Jaya Itty Amma, who is the mother of the two minor wards, namely Arun Krishnan and Ajith Krishnan and who is the wife of the 1st appellant, died on 23-11-2010. The 2nd appellant is the mother of the deceased. The deceased was holding title over 8.71 Ares of MFA(G&W) No.24/2016 -2- property comprised in Re-Sy No.185/12 of Block No.36 of Poothakulam Village and 2.44 Ares of Property in Re-Sy No.27 of Thazhuthala Village. The case pleaded before the court below was that, the deceased was chronic liver cancer patient and due to the financial stringency, in order to meet the expenses of her treatment, she along with the appellants decided to sell 7.08 Ares of property comprised in Re-sy No.185/12 in Block No.36 of Poothakulam Village, for which she had entered into an agreement with the 1st respondent on 24-09-2010 and received an amount of Rs.25,000/- towards advance sale consideration out of the total sale consideration, of Rs.75,000/-. But, before executing the sale deed the deceased expired on 23-11- 2010. In such situation the appellants have no other way than to dispose of the property which was agreemented for sale, which is cited as B-schedule in the application. Therefore the appellants executed Ext.A4 partition deed by metes and bounds. The property of the deceased was divided into A & B schedules. A-schedule having an extent MFA(G&W) No.24/2016 -3- of 2.44 Ares comprised in Re-sy No.201/8-2 in Block No.25 of Thazhuthala Village was set apart as share of the 1st appellant along with minor wards and B-schedule of 7.08 Ares was assigned to the share of the 2nd appellant. Thereafter the 2nd appellant executed Ext.A5 sale deed with respect to the B-schedule property, to the 1st appellant, on receiving the balance consideration. The 1st appellant did not dispose of the petition A-schedule property and it is kept for welfare of the minor wards. According to the appellants Ext.A4 partition was executed without obtaining permission from the court, due to lack of knowledge, ill-advise and ignorance. It was contended that Ext.A4 is a bonafide partition made without prejudice to the interest and welfare of the minor wards. Contention was that, when the 1st respondent realized that Ext.A4 partition is not valid she demanded for return of market value of the property along with the cost of improvements. But the appellants were not in a position to return any amount. Hence the application was filed for the reliefs as mentioned above. It was MFA(G&W) No.24/2016 -4- contended that the 1st appellant is the legal and natural guardian of the minor wards and no other person is appointed as guardian of the person or property of the minors. According to the appellants the 1st appellant is qualified and competent to be appointed as the guardian of the person and property of the minor wards. It is pleaded before the court below that, unless Ext.A5 document is ratified it will cause irreparable loss and injury to the applicants as well as to the minor wards.
3. The court below while considering the application observed that, on the death of the mother of the minor wards her entire property had devolved upon the minor children and on the 1st appellant, by virtue of Section 15 of the Hindu Succession Act. The 2nd appellant, the mother of the deceased would be excluded under Section 15 of the Act. But under Section 17 of the Hindu Succession Act she will also be entitled to succeed to the estate. But it is not stated in the application that, by which provision of the Succession Act the parties are governed. However, the MFA(G&W) No.24/2016 -5- court found that allocation of the major share of 7.8 Ares in favour of the 2nd appellant under Ext.A4 partition deed cannot be termed as a bonafide act in the interest or welfare of the minor children. Under Ext.A4 partition deed the minors were alloted only a small share in 2.44 Ares of property, that too along with their father, who is the 1st appellant. Further the court found that there is nothing to indicate in Ext.A5 sale deed to show that there was a sale agreement executed by the deceased. On the other hand, the recitals in Ext.A5 would show that the entire sale consideration was received by the 2nd appellant. Having found that Ext.A4 partition deed was not advantageous to the minor wards and that it was not executed in the bonafide interest and welfare of the minors, the application was dismissed. It is aggrieved by the said order, that the above appeal is filed.
4. The appellants contended that the court below ought to have allowed the application, because it was preferred only for protecting the interest and welfare of the MFA(G&W) No.24/2016 -6- minors and to ratify the transaction entered by the deceased. It is contended that the 1st appellant being the legitimate guardian of the minor wards ought to have been permitted to re-convey the B-schedule property, in the better interest, finding that the execution of Exts.A4 & A5 documents were bonafide and intended solely to protect the welfare of the minors.
5. Learned counsel for the appellants placed heavy reliance on a decision of a Division Bench of this court in Jince Mary Johns V. K.P. Johny and another (2011 (4) KHC 343 (DB)). It is held therein that Section 28, 29 and 30 of the Guardian and Wards Act, 1890 do not have any bearing on a guardian who is neither the Collector nor a testamentary guardian nor a person appointed or declared as the guardian of a property of wards. Hence disposal of immovable property of a minor by such a guardian would not be affected by Section 30 of the Guardian and Wards Act, merely on the ground that previous permission of the court was not obtained in terms of Section 29 of the Act. It MFA(G&W) No.24/2016 -7- is further held that biological parents are natural guardians and if they owe a corresponding duty of care and protection of the person and property of the minor, such a guardian can alienate the property of the minor for which no leave of the court is required. Based on the dictum it is contended that the 1st appellant being the father and natural guardian has a duty to support the minors and their welfare. Hence he is entitled to act which are reasonable and proper for the protection and benefit of the property belonging to the minors.
6. On the facts of the case, the dictum contained in the decisions cited supra has no application. In the case at hand, even the entitlement for succession by the 2nd appellant itself is doubtful. At the same time the appellants have joined together in effecting a partition of the estate of the deceased. It is pertinent to note that, only a minor portion of the estate is alloted to the share of the minor wards along with 1st appellant, as per Ext.P4. Therefore, as observed by the court below, it can never be considered as MFA(G&W) No.24/2016 -8- a bonafide partition effected in the interest and welfare of the minors. Consequently, for the said reason as well as for the reason that the 2nd appellant is not entitled to succeed to the estate, the further transfer of B-schedule by virtue of Ext.A5 sale deed will become invalid. Therefore the court below was perfectly justified in rejecting the application for appointment of 1st appellant as guardian of the property of the minors. It is also justified in rejecting the request for ratification of Ext.A5 sale deed and further in rejecting the alternative prayer for permitting the 1st appellant to execute a fresh sale deed with respect to the B-schedule property. It cannot be accepted that the 1st appellant had acted in a bonafide manner in dealing with the estate of his deceased wife, in protecting the due share of the minors in a bonafide manner.
7. Result of the above discussion is that, there is no illegality, impropriety or error in the order of the court below which is impugned in the above appeal. Resultantly, the appeal fails and the same is hereby dismissed. MFA(G&W) No.24/2016 -9-
8. It is made clear that the above judgment will not stand in the way of the 1st appellant approaching the appropriate court seeking appointment of him as guardian of the person and/or property of the minor wards, with respect to the entire estate of their mother devolved upon them on her death and also to seek disposal of any portion of such property, if there exists any genuine need to protect the interest and welfare of the minor wards.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
SHAJI P. CHALY, JUDGE.
AMG True copy P.A. to Judge