Gujarat High Court
Muljibhai Naranbhai Makwana vs Na on 14 November, 2022
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/FA/1024/2022 JUDGMENT DATED: 14/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1024 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MULJIBHAI NARANBHAI MAKWANA
Versus
NA
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Appearance:
BHAVIN B THAKAR(9371) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 14/11/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. The present First Appeal, under Section 7 of the Page 1 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 Guardians and Wards Act, 189 is preferred by the appellants, who happens to be grand parents of the minor - Sejal, being aggrieved and dissatisfied with the judgment and order dated 07.02.2022 passed by learned Principal Judge, Family Court, Bhavnagar in Misc. Civil Application No.13 of 2020, by which the learned Family Court has rejected the application filed by the original appellants, therefore, the present First Appeal is preferred for appointment of guardian of minor - Sejal Jagdishbhai Makwana.
2. Brief facts of the case are as under:
2.1 The present appellants are the husband and wife and they are having a son named as Jagdish, who got married with Ashmita Bhamjibhai Jagdish. Out of said wedlock, a baby girl namely Sejal was born on 29.05.2005. The marriage life of Jagdish and Ashmita could not continue for long and after a period of 12 years, they separated with each other and their marriage life came to an end. Later on, Ashmita got re-married with some other person viz., Nareshbhai Maljibhai at Pingli Village but Jagdishbhai was not got married again. Jagdishbhai along with Sejal, who is mentally Page 2 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 retarded minor girl, are living with the present appellants.
2.2 It is the case of the present appellants that since their son Jagdish is disabled in his leg, he could not take proper care of his minor daughter - Sejal Jagdishbhai Makwana. Jagdishbhai is residing at the first floor whereas present appellants along with minor girl - Sejal, aged about 7 years old are residing at the ground floor of the same house. For proper care of minor daughter - Sejal, Jagdish has executed an adoption deed before the Sub-Registrar Office, Bhavnagar in favour of the present appellants, giving right of her daughter -
Sejal by way of adoption. Since Sejal is dumb, she was not having capacity of understanding, for which the certificate from the hospital was obtained when she was aged about 5 years old.
2.3 It is the case of the appellants that appellants No.1 was working with Central Salt, Bhavnagar and at present, he is retired and getting sufficient pension and after his lifetime, Sejal could not face any problem, for that reason, the present application is preferred an application for appointment of guardian of Sejal. Page 3 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022
C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 2.4 On the basis of adoption deed executed on 26.06.2019, the name of appellants is entered after the name of Sejal in Aadhar Card. If the present application is allowed, the interest and welfare of Sejal can be taken care of and if Sejal is kept along with his son Jagdish, who is having disability to the extent of 50% as leg locomotor disability, the interest and care of minor girl cannot be served by Jagdish. Thereafter, the application under Section 7 of the Guardians and Wards Act, 1890 is preferred by the appellants. 2.5 Thereafter, Jagdishbhai Muljibhai Makwana has filed an affidavit in support of his averments. An additional affidavit is also filed by Ashmita Bhamjibhai wife of Jagdishbhai, who happens to be mother of the minor child - Sejal, by which she has also supported the averments made in the application.
2.6 Thereafter, the learned Family Court has rejected the application filed by the appellants. 2.7 Thereafter, the present appeal is preferred by the original appellants.
Page 4 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022
C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 3.1 Heard learned advocates Mr. Bhavin B. Thakar for the appellants. He has submitted that the learned trial Court has not properly appreciated the facts produced on record and passed the order without applying his mind. He has submitted that the learned trial Court has erred in not appreciating the adoption deed executed by Jagdishbhai Muljibhai Makwana vide Exh.22 in proper perspective. He has submitted that the son of the present appellants - Jagdishbhai Muljibhai Makwana is handicap, who has already given consent for the application filed by the appellants despite that the trial Court has not considered the case of the present appellants. He has further submitted the Ashmita - mother of the minor child has also given consent at Exh.33 in the application. He has further submitted that the learned Trial Court has not properly appreciated the mental disability certificate of minor - Sejal, which was produced at Exh.25 before the learned Trial Court. He has further submitted that if the learned Trial Court has not considered the aspect of welfare of the child in the facts and circumstances of the present case as father of the girl - Jagdish is 50% disabled and he is doing some miscellaneous labour work and he is not having steady Page 5 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 income. He has submitted that it is also relevant to note that the mother of the child is separated with the father long back and also got remarried with other person. In such set of facts and circumstances, the present appellants happens to be grand father and grand mother and appellant No.1 is also getting regular income by way of pension. The future of the child - Sejal, who is otherwise having mental disability can be protected. 3.2 He has further submitted that the learned Trial Court has committed gross error by not appreciating the fact that no responsible person left out to look after the minor - Sejal except the appellants - grand parents. The appellant No.1 was working in Central Sal, Bhavnagar and currently retired and getting sufficient pension, and therefore, they are financially sound to take care of minor girl - Sejal.
3.3 He has further submitted that the learned Trial Court has not properly appreciated the provisions of Section 7 and other provisions of the Guardians and Wards Act. He has further submitted that the Trial Court has erred in giving erroneous finding that father and mother of the minor girl - Sejal are alive, and Page 6 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 therefore, application filed by the present appellants cannot be survived in view of Section 6 of Hindu Minority and Guardianship Act, 1956. He has submitted that this finding is apparently erroneous by considering the facts and circumstances of the present case and by considering the fact that there is valid registered adoption deed in favour of the present appellants and appellants are the grand parents of the minor girl - Sejal.
3.4 He has relied upon the decision of the Hon'ble Madras High Court in the identical facts and circumstances in the case of C. Raghuraman rendered in O.P. No.731 of 2021 dated 27.01.2022, wherein it has considered that the guardian should be appointed for the mentally retarded person, and therefore, he has requested that the present appeal is required to be allowed in the larger interest of minor girl - Sejal.
4.1 We have heard learned advocate Mr. Bhavin B. Thakar for the appellants. We have also considered the materials available on record. We have also perused the record and proceedings available with this Court. 4.2 It transpires from the record that it is undisputed Page 7 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 fact that the present appellants are the grand parents of minor girl - Sejal Jagdishbhai Makwana. It is also undisputed fact that son of the present appellants - Jagdishbhai Muljibhai Makwana was married with Ashmita Bhamjibhai and out of wedlock, Sejal was born on 29.05.2005. Due to some differences, Jagdishbhai Muljibhai Makwana and Ashmita Bhamjibhai were separated from their married life by way of divorce in presence of the leaders of their caste. At that point, it was decided that minor girl - Sejal will remain with her father - Jagdishbhai Muljibhai Makwana, thereafter, her mother - Ashmita Bhamjibhai got re-married with one Nareshbhai Maljibhai.
4.3 It is also undisputed fact that Jagdishbhai Muljibhai Makwana is having 50% locomotor disability and he is not getting regular income as he is doing some occasional labour work, therefore, he is unable to nurture her daughter, who is also suffering from mental illness. Jagdishbhai Muljibhai Makwana is living on the same house of the first floor where his parents are living on the ground floor and they are taking care of the minor girl - Sejal, who is handicap. It is also undisputed fact that Jagdishbhai Muljibhai Makwana is having 50% Page 8 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 disability. Minor girl - Sejal is having disability to the extent of 70%, which is issued by Sir T. Hospital, Bhavnagar and the disability certificate is produced on record at Exh.23 to 25. It also transpires from record that the doctor has assessed temporary disability to the extent of 90% in relation to her brain as per the guidelines notified by Government of India. It is also clear from the record that birth certificate of minor girl
- Sejal issued by the Bhavnagar Municipal Corporation is marked at Exh.18 wherein the names of father and month of minor girl - Sejal are shown as Jagdishbhai Muljibhai Makwana and Ashmita Bhamjibhai. It also transpires from the Aadhar Card of minor girl - Sejal that the name of appellant No.1 is shown as guardian of the Sejal, which is marked at Exh.19. It also transpires from the record that the registered adoption deed is executed before Sub-Registrar, Bhavnagar - 2 (Chitra) on 26.06.2019 wherein also the present appellants are shown as recipients of the adoption deed and Jagdishbhai Muljibhai Makwana is shown as executor of the adoption deed.
4.4 It is found that the affidavit filed by father of minor girl - Jagdishbhai Muljibhai Makwana is produced Page 9 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 on record and also, the affidavit filed by biological mother - Ashmita Bhamjibhai Jagdish is also produced on the record at Exh.33 wherein it shows that she has given consent for the adoption deed. It also transpires from the record that the neighbour of the present appellants - Nanjibhai Aljibhai has also filed affidavit at Exh.29 and has supported the case of the present appellants.
4.5 Considering the above documents, it is clearly established that in view of the adoption deed which is executed by Jagdishbhai Muljibhai Makwana, is in favour of present appellants, who are also the parents of the Jagdishbhai Muljibhai Makwana. It also transpires from the record, more particularly at Exh.26 that the disability certificate to the extent of 50% of Jagdishbhai Muljibhai Makwana is issued by the Government Doctor. It also transpires that minor girl - Sejal is having mental illness and is required to be taken care by more person then handicapped father only. The certificate of mental retardation of minor girl - Sejal is also produced on record. The disability certificate at Exh.25 reveals that Sejal is having disability of body to the extent of Page 10 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 75% and disability of brain is to the extent 90%. 4.6 Therefore, we found that learned Trial Court ought to have granted the application by exercising the powers conferred under the provision of Section 7 of the Guardians and Wards Act, 1890, which reads as under:
"Section 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
(b) declaring a person to be such a guardian the Court may make an order accordingly. (2) 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.
(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 Page 11 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 the provisions of this Act."
4.7 Further, it also transpires that Section 4(A) of the of the Guardians and Wards Act, 1890 confers the jurisdiction on sub-ordinate judicial officers, which reads as under:
"Section 4A:-
Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers:- (1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorize the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.
(2) The Judge of a district court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1).
(3) The Judge of a district court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding Page 12 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 under this Act pending in the Court of any other such officer.
(4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian."
4.8 It is relevant to note that while not granting the application of the present appellants, the Trial Court has considered the provisions of Section 6 of Hindu Minority and Guardianship Act, 1956, which reads as under:
"Section 6:-
Natural guardians of a Hindu minor:-
The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are -
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of Page 13 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.--In this section, the expression "father" and "mother" do not include a step-father and a step-mother."
4.9 It is also relevant to note that the reasons, which are given by the learned Trial Court is found apparently erroneous. The term of "guardian" does not necessarily imply that it has to be natural person and even registered societies too can act as "guardian" in case of orphans.
4.10 It is also relevant to note that the judgment of the Hon'ble Orissa High Court in the case of Abdul Karim versus Akhtari Bibi reported in AIR 1988 Orissa Page 14 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 276, the term "guardian", according to the Section, implies that it includes not only testamentary certificate and natural or de facto guardian too but also statutory guardians. Moreover, it is relevant to note that this finding of the learned Trial Court under Section 6 of Hindu Minority and Guardianship Act, 1956 is unjustified in view of the judgment of the Hon'bel Apex Court in the case of Raj Kumar Gupta vs Barbara Gupta reported in AIR 1989 Calcutta 165, wherein the Court has found that the welfare of minor child is a paramount consideration in the appointment of guardian and the Guardians and Wards Act, 1890 does not expound about the age of any child for custody with the mother and only, unlike Section 6(A) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of child below five years of age should be with the mother only, because in some case, mother may be unfit to provide all the love, care and comfort for the child of such tender age. In view of judgment of the Hon'ble Apex Court in the case of Ruchi Majoo v. Sanjeev Majoo S. reported in AIR 2011 SC 1952, it is also relevant to note that it is the duty of a Court to exercise its 'Parens Patriae' jurisdiction as in cases involving custody Page 15 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 of minor children, is all the more onerous. Welfare of minor child in such cases being paramount consideration the Court has to approach.
4.11 Considering the above referred judgment of the Hon'ble Calcutta High Court, in the present case, the father can be said to be unfit to provide proper care and comfort to the child. Further, the learned Trial Court has considered one more aspect in the present case, that Jagdishbhai Muljibhai Makwana, who is natural guardian and father of the minor girl - Sejal, has not been examined as a witness. That finding seems to be erroneous and that exercise is not required, more particularly, when there is registered adoption deed which is executed by the father of the minor girl - Jagdishbhai Muljibhai Makwana, which is available on record and the same is undisputed and thereafter, in the present appeal, Jagdishbhai Muljibhai Makwana has given his consent about the appointment of guardian by filing additional affidavit and has re-affirmed the execution of document at Exh.22, and therefore, considering this aspect, the finding of the learned Trial Court is found erroneous and unacceptable and are Page 16 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 required to be set aside.
4.12 Further, the judgment of the Hon'ble Madras High Court in the case of C. Raghuraman (supra), paras which are relevant, are reproduced as under:
"11. Under the Mental Health Act, 1987 which has been repealed there was a specific provision under Section 53 of the said Act empowering the District Court to appoint a legal guardian for a mentally ill person.
12. Section 53 of the repealed Mental Health Act 1987 reads as follows :-
53. Appointment of guardian of mentally ill person:-
(1) Where the mentally ill person is incapable of taking care of himself, the District Court or, where a direction has been issued under sub-
section (2) of section 54, the Collector of the District, may appoint any suitable person to be his guardian.
(2) In the discharge of his functions under sub- section (1), the Collector shall be subject to the supervision and control of the State Government or of any authority appointed by it in that behalf.
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13. The Mental Health Act, 1987 was repealed and was replaced by the Mental Healthcare Act, 2017 which came into effect from 07.07.2018. As seen from the Mental Healthcare Act, 2017, there is no provision available for appointment of a guardian of a mentally ill person, which was very much available under the repealed Mental Heealth Act, 1987. Though the National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 under Section 14 empowers the Local Level Committee to appoint a legal guardian for a mentally retarded person, the said legislation has not curtailed the powers of this Court to appoint a legal guardian for a mentally retarded person exercising its powers under Clause 17 of the Letters Patent. The decision rendered by a learned Single Judge of this Court in G. Nithyanandam vs. Tmt. D. Saritha and others reported in 2013 3 LW 412, which is the basis for the return of the Original petition by the Registry of this Court is in the context of a petition filed under the Guardians and Wards Act and not under Clause 17 of the Letters Patent. The only reason for holding that the said petition was not maintainable by the learned Single Judge in the reported decision of G.Nithyanandam's case referred to supra was that under the Guardians and Wards Act, a person cannot be appointed as a legal guardian for a mentally Page 18 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 retarded person. Therefore, I am of the considered view that the reason for return of the Original Petition filed by this petitioner under Clause 17 of the Letters Patent seeking for appointment of a legal Guardian for a mentally retarded person by the Registry is erroneous.
14. In similar circumstances, a learned Single Judge of the Calcutta High Court in the case of Kala Chand Chunder, v Fatehdin and Ors. reported in AIR 1949 CAL 166 and in the case of Deepa Asani and another reported in 2021 SCC Online 2148 exercised powers under Clause 17 of the Letters Patent and appointed a legal guardian for a mentally ill/lunatic person.
16. In fact, the decision rendered supra in Deepa Asani's case reported in 2021 SCC Online 2148, the learned Judge of the Calcutta High Court has observed that there is a vaccum eversince the repeal of the Mental Health Act, 1987 as there is no provision under the Mental Healthcare Act, 2017 for appointment of a legal guardian for a mentally retarded person. Whenever there is a Legislative vacuum and there is utmost necessity as in the instant case, the Court will have to fill up the lacuna by giving appropriate legal relief though within the parameters of law. Since Clause 17 of Letters Patent empowers this Court to exercise lunacy jurisdiction, the hands of this Court are not tied Page 19 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 to grant the relief as prayed for in this petition. In a case of this nature, this Court cannot be a mute spectator when there is no specific prohibition for the exercise of power under Clause 17 of the Letters Patent. "Parens Patriae" jurisdiction also empowers this Court to appoint a Legal guardian for a Mentally retarded person when there is a legislative lacuna and further there being no statutory bar.
17. The learned Single Judge of the Calcutta High Court in the aforesaid reported decisions have also exercised the power under Clause 17 of the Letters Patent for the purpose of appointment of a legal guardian for a lunatic.
18. Since idiot is a colloquial term for a person affected with mental retardation, the term "idiot" found in Clause 17 of the Letters Patent is applicable to a mentally retarded person also as in the instant case. In future, Registry shall entertain petitions filed seeking to appoint legal guardian for a mentally retarded person under Clause 17 of the Letters Patent. Infact, a learned Single Judge of this Court in S.Annapoorni's case referred to supra had also exercised powers under Clause 17 of the Letters Patent though it was a case where the petitioner was residing outside the jurisdiction of this Court but that case was in respect of a child custody matter. Though it was a child custody matter, the logic behind the applicability of Page 20 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 Clause 17 of the Letters Patent by this Court was also followed in the said decision.
19. For the foregoing reasons, I am of the considered view that the Registry ought not to have returned the Original Petition filed by this petitioner but anyway since a direction was given by this Court to the Registry to number this petition, they have numbered the same leaving the maintainability issue open. After numbering the petition, this Court had also directed the petitioner to let in oral and documentary evidence before the learned Master. Accordingly, the petitioner has also let in oral and documentary evidence before the learned Master which has been recorded.
20. Now coming to the merits of the petitioner's request for appointment of legal guardian for R. Balaji is concerned, this Court's discussion is as follows :-
21. The petitioner claims that both the parents of the mentally retarded person R. Balaji, who was born on 13.11.1987 are no more. The father of R. Balaji, K. Ravi died on 25.05.2021 and the mother R. Meenakshi died on 12.04.2013. The petitioner is the first cousin of the mentally retarded person R. Balaji. The father of the petitioner died on 11.10.2020 and his mother is still alive. According to the petitioner, eversince the death of K.Ravi, the father of the mentally retarded person Balaji , he has been taking care of R.Balaji. According Page 21 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 to the petitioner R. Balaji, the mentally retarded person is now admitted in the "Care and Care Clinic" at New No.23, East Avenue, Near UCO Bank, Korattur, Chennai. and the said clinic is taking care of his day- to-day needs. According to the petitioner a sum of Rs.15,000/- is paid by the petitioner to the said Clinic as special fees for this service for every three months. According to the petitioner, the mentally retarded person R. Balaji has been suffering from mental retardation which has been assessed at 60% by the State Commissioner for disabled, Government of Tamil Nadu. According to the petitioner excepting for him, there is no other person amongst his kith and kin to take care of the mentally retarded person R.Balaji. He has also pleaded that he is of sound health and he is willing to act as a guardian for the mentally retarded person R. Balaji till his life time. He has also given the list of assets standing in name of the parents of the mentally retarded person which has now been inherited by R.Balaji after their death and he has also filed those documents along with the petition.
23. As seen from the evidence available on record, it is clear that excepting for the petitioner, there is no other person amongst the kith and kin of the mentally retarded person to support him. It is also evident that both the parents of the mentally retarded person viz., Page 22 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 R.Meenatchi and K.Ravi are no more as seen from their respective death certificates, which have been marked as Exs.P5 and P8. The certificate given by the State Commissioner for disabled, Government of Tamil Nadu for the mentally retarded person R. Balaji dated 26.10.2005 has also been marked as Ex.P3, which confirms that R. Balaji has been suffering from mental retardation which has been assessed at 60%. The said certificate was issued based on the medical report submitted by the Kilpauk Medical College which is reflected in the said certificate. The father of the petitioner Sellappan, who is the brother of the mentally retarded person's father (K.Ravi) is also no more as evident from his Death Certificate which has been marked as Ex.P6 which reveals that he died on 11.10.2020. The Legal Heirship certificate of K.Ravi, the father of the mentally retarded person R.Balaji has also been marked as Ex.P9, which confirms that the mentally retarded person R.Balaji is his only Legal Heir. Being a mentally retarded person and that too when both his parents are no more and he does not have any siblings, this Court is of the considered view that the petitioner who is the first Cousin of the mentally retarded person is an apt person to be appointed as legal guardian.
24. The details of the assets standing in the name of the father of the mentally retarded person viz., K.Ravi Page 23 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 has also been marked as Exhibits viz., Ex.P4, P10 and P11. The title deeds pertaining to the property owned by the mother of the mentally retarded R. Meenakshi has also been marked as Ex.P2. The petitioner has sought for appointment of a legal guardian for the person and property of the mentally retarded person R. Balaji. He has also let in oral evidence reiterating the contents of the petition filed in support of OP No.731 and has undertaken to maintain the mentally retarded person in his beneficial interest and welfare. However being a mentally retarded person, this Court is of the considered view that the petitioner will have to submit regular accounts in respect of the assets owned by R. Balaji, the mentally retarded person.
25. After giving due consideration to the pleadings and the evidence available on record as well as after hearing the submissions of the learned counsel for the petitioner, this Court is inclined to grant the relief as prayed for and the petitioner is appointed as a legal guardian for the mentally retarded person Mr.R. Balaji subject to the fullflilment of the following conditions by the petitioner, which are as follows :-
(a) The guardian appointed by this Court shall disclose the particulars of the properties both movable and immovable owned by Mr.K.Ravi, the father and Mrs.R.Meenakshi, the mother of the mentally retarded person R. Balaji, before the Registry of this Court Page 24 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 within a period of four weeks from the date of receipt of a copy of this order.
(b) R. Balaji, the mentally retarded person shall be examined by a Government Doctor and a report to that effect from the said Government Doctor shall be filed before the Registry of this Court every six months.
(c) The guardian appointed by this Court shall file a statement before the Registry of this Court every six months, disclosing the bank balances of Mr.R. Balaji, the mentally retarded person with various banks/financial institutions.
(d) The guardian appointed by this Court shall render true accounts of the funds belonging to Mr.R. Balaji, the mentally retarded person and shall file a report before the Registry of this Court every six months.
(e) If it is brought to the notice of any Court / any statutory authority about misuse of funds belonging to Mr.R. Balaji, the mentally retarded person, the said Court / authority is empowered to cancel the guardianship after holding a proper enquiry.
(f) The transactions in respect of the property of the mentally retarded person by the guardian shall be strictly in accordance with the relevant provisions of law.
(g) If the guardian appointed by this Court is found to be abusing the power or neglects or acts contrary to Page 25 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 the best interest of Mr.R. Balaji, any relative or next friend may apply to the appropriate Court for removal of such guardian."
Considering the abovementioned judgments, it transpires that the learned Family Court has erred in exercising its jurisdiction by rejecting the application filed by the present appellants, which is without taking into care about aspect of the paramount consideration for the welfare of the minor girl - Sejal, and therefore also, the present appeal is required to be allowed.
5. After giving due consideration to the pleadings available on record, prayer in terms of para 9A of Misc. Civil Application No.99 of 2019 is granted, the applicants, who are the grand parents of daughter - Sejal, who was born on 29.05.2005, are appointed as her guardian. The guardianship certificate shall accordingly be issued to the applicants. The following further directions are issued:-
(a) The guardian appointed by the Court shall disclose the particulars of the properties both movable and immovable owned by the father - Jagdishbhai Muljibhai Page 26 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 Makwana, before the concerned Trial Court within a period of four weeks from the date of receipt of a copy of this order.
(b) Sejal, the mentally retarded girl shall be examined by a Government Doctor and a report to that effect from the said Government Doctor shall be filed before the Registry of the concerned Court after every one year.
(c) The guardian appointed by the Court shall file a statement before the Registry of the concerned Court after every six months, disclosing the bank balances of the guardian as well as minor girl - Sejal, (if any), with various banks/financial institutions.
(d) The transactions in respect of the property (if any) of the mentally retarded girl - Sejal, by the guardian shall be strictly in accordance with the relevant provisions of law.
(g) If the guardian appointed by this Court is found to be abusing the power or neglects or acts contrary to the best interest of minor girl - Sejal, any relative or next Page 27 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022 C/FA/1024/2022 JUDGMENT DATED: 14/11/2022 friend may apply to the appropriate Court for removal of such guardian.
6. With the above observation and direction, the present appeal is allowed, with no order as to costs.
(N.V.ANJARIA, J) (SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 28 of 28 Downloaded on : Sun Dec 25 06:15:26 IST 2022