Delhi District Court
Pushpa Kutthi vs State on 13 March, 2024
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE - 01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
GP No.09/2023
CNR No. DLET01-007279-2023
IN THE MATTER OF :-
1. Pushpa Kutthi
W/o Late Sh. Balvier Singh Kutthi,
R/o Flat No.233A, Pocket-I,
Mayur Vihar Phase-I, Delhi-110091.
2. Master Devansh Kutthi,
(Through his natural guardian/mother
Pushpa Kutthi)
S/o Late Sh. Balvier Singh Kutthi,
R/o Flat No.233A, Pocket-I,
Mayur Vihar Phase-I, Delhi-110091.
.....Petitioners
Versus
1. State of NCT of Delhi
Through Its Chief Secretary,
Players Building, Delhi Secretariat,
GNCT of Delhi, Indraprastha Marg,
ITO, New Delhi.
2. Sh. Gulab Singh (Performa respondent)
S/o Late Sh. Mohar Singh,
R/o Flat No. 233-A, Pocket-I, Mayur Vihar,
Phase-I, Delhi-110091.
.....Respondents
Date of Institution : 11.05.2023
Reserved for order on : 13.03.2024
Date of Decision : 13.03.2024
JUDGMENT
Petition U/s 8 & 12 of the Hindu Minority & Guardianship Act, 1956 read with Section 17 of the Guardian & Wards Act, 1890 seeking appointment of petitioner no.1 as the legal GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.1 of 10 guardian of petitioner no.2 for all intents & Purposes and for grant of permission to sell the share of the petitioner no.2 in immovable property bearing No. 233A, Ground Floor, Pocket-I, Mayur Vihar, Phase-I, Delhi-110091.
1. Brief facts, of the case relevant for the disposal of the present petition are that the petitioners have filed the present petition seeking permission to manage/sell ¼ undivided share of petitioner no.2 in the property bearing DDA Flat No. 233A, Pocket-I, Mayur Vihar Phase-I, Delhi-110091 total admeasuring 110 Sq. yards, consisting of whole of the structure, built thereon fitted with electricity, tap water with meters (hereinafter referred to as "suit property"), on the averments that petitioner no.2, namely Devansh Kutthi is son of petitioner no.1 and in the care and custody of petitioner no.1. The petitioners are residing in the suit property. The respondent no.2 is the brother-in-law of petitioner no.1 and is also co-owner of half share of the suit property.
The suit property was allotted to Late Sh. Mohar Singh Negi vide allotment letter dated 14.05.1982 who was father-in-law of petitioner no.1 and grandfather of petitioner no.2. Mr. Mohar Singh died intestate on 05.03.1991 leaving behind his wife namely Smt. Rami Devi, Sh. Gulab Singh (son), Smt. Asha (daughter) and Sh. Balvier Singh (son) as his only legal heirs. After the death of Sh. Mohar Singh, Smt. Rami Devi became the absolute owner of the suit property by virtue of relinquishment deed dated 21.09.1996 registered before Sub- Registrar and the suit property was transferred in the name of Smt. Rami Devi vide transfer letter dated 23.06.1997 issued by DDA. Smt. Rami Devi also died intestate on 14.07.2008. Thereafter, Sh. Gulab Singh and Sh. Balvier Singh Kutthi GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.2 of 10 became the joint owner of the suit property vide relinquishment deed dated 23.05.2018. During covid period, Sh. Balvier Singh Kutthi also died intestate on 21.04.2021 leaving behind petitioner 1 & 2 herein as class-I legal legal heirs and the petitioner no.1 is the legally wedded wife of deceased as the marriage between them was solemnized on 12.05.2003 according to Hindu Rites and Customs. Out of the said wedlock, one child namely Devansh Kutthi i.e. petitioner no.2 was born on 15.01.2014. The petitioner no.1 being mother and natural guardian of petitioner no.2 has been maintaining the minor child and continue to look after the welfare and education of petitioner no.2 who is a student of standard V and studying in Ryan International School, Mayur Vihar, Delhi. The petitioner no.1 has no fixed source of income, therefore, she wishes to sell the share of minor for his welfare, advantage and his future betterment. The petitioner no.1 undertakes to invest the sale proceeds to the extent of the share of the petitioner no.2 in some other valuable movable/ immovable property which shall fetch substantial income for the petitioner no.2 until he attains the age of majority. There is no other legal impediment under the Hindu Minority & guardianship Act or under any other law for the time being in force to allow the present petition by way of appointment of petitioner no.1 as guardian of petitioner no.2 for executing sale of the share of petitioner no.2 in the suit property and prayed accordingly.
2. The notice of the petition was issued to the respondents. The respondent no.1/State as well as general public was served by way of publication in the newspaper 'The Statesman' dated 03.06.2023 and 'Rashtriya Sahara' dated GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.3 of 10 02.06.2023. Despite publication in the newspaper and notice to general public at large, no one has come forward to make any objection in respect of the prayer made by the petitioner in the present petition. Respondent no.2 appeared in person and gave statement with regard to no objection, if the petitioner no.1 is appointed as guardian and representative of petitioner no.2 to sell the ¼ undivided share of the petitioner no.1 in the suit property.
ISSUES:
3. From the pleadings of the parties, following issues were framed on 28.11.2023:-
1. Whether petitioner no.1 is entitled to appointment of guardian and representative of petitioner no.2, namely, Master Devansh Kutthi for selling the 1/4th undivided share in the suit property bearing No. DDA Flat No.233A, Pocket-I, Mayur Vihar Phase-I, Delhi-110091 total admeasuring 110 Sq. yards, consisting of whole of the structure, built thereon fitted with electricity, tap water with meters, as prayed for? OPP.
2. Whether petitioner no.1 is entitled to sell and re-invest the sale proceeds to the extent of 1/4th share of petitioner no.2, as prayed for? OPP.
3. Relief.
EVIDENCE:
4. In order to prove the case, the petitioner no.1 only examined herself as PW1 and tendered her evidence by way of affidavit Ex.PW1/1. She also relied upon the following documents:-
i. Ex.PW1/1 (OSR) (colly) are copies of her Aadhar card and the Aadhar card of her son namely Devansh Kutthi. ii. Ex.PW1/2 is copy of birth certificate of her son namely GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.4 of 10 Devansh Kutthi.
iii. Ex.PW1/3 (OSR) is copy of Aadhar card of her deceased husband Sh. Balvier Singh Kutthi.
iv. Ex.PW1/4 is death certificate of Sh. Balvier Singh Kutthi. v. Ex.PW1/5 (OSR) is copy of marriage card of petitioner no.1 and Sh. Balvier Singh Kutthi.
vi. Ex.PW1/6 (OSR) is copy of marriage photographs of petitioner no.1 and Sh. Balvier Singh Kutthi. vii. Ex.PW1/7 (OSR) is copy of allotment letter dated 14.05.1982.
viii. Ex.PW1/8 (OSR) is copy of death certificate of my father-in-law Sh. Mohar Singh.
ix. Ex.PW1/9 (OSR) is copy of relinquishment deed dated 21.09.1996.
x. Ex.PW1/10 (OSR) is copy of transfer letter dated 01.01.1997.
xi. Ex.PW1/11 (OSR) is copy of conveyance deed dated 21.10.1998.
xii. Ex.PW1/12 (OSR) is copy of relinquishment deed dated 23.05.2018.
xiii. Ex.PW1/13 (OSR) is copy of surviving member certificate.
xiv. Ex.PW1/14 is printout of school fee receipt of petitioner no.2.
xv. Ex.PW1/15 (OSR) is copy of death certificate of my mother-in-law, namely Smt. Rami Devi.
xvi. Ex.PW1/16 (OSR) is copy of Aadhar card of respondent no.2.
xvii. Ex.PW1/17 is certificate u/s 65B of Indian Evidence GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.5 of 10 Act.
5. Final arguments heard. Record perused. Considered. My issue-wise findings are as under:
FINDINGS:
Issue No.1 & 2:
1. "Whether petitioner no.1 is entitled to appointment of guardian and representative of petitioner no.2, namely, Master Devansh Kutthi for selling the 1/4th undivided share in the suit property bearing No. DDA Flat No.233A, Pocket-I, Mayur Vihar Phase-I, Delhi-110091 total admeasuring 110 Sq. yards, consisting of whole of the structure, built thereon fitted with electricity, tap water with meters, as prayed for? OPP"
2. Whether petitioner no.1 is entitled to sell and re-invest the sale proceeds to the extent of 1/4th share of petitioner no.2, as prayed for? OPP.
6. Section 8 of The Hindu Minority & Guardianship Act reads as under :-
"(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court:-
(a) Mortgage or charge, or transfer by sale, gift exchange or otherwise, any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.6 of 10 (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of the Act.
7. Section 29 of The Guardians & Wards Act, 1890 defines the limitation on the powers of guardian of property appointed or declared by the court to the extent that such guardian shall not, without permission of the Court.
(a) Mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or
(b) lease any part of such property for a term exceeding give years or for any term extended more than one year beyond the day on which the Ward will cease to be minor.
8. Section 31(1) of The Guardians & Wards Act, 1890 provides that permission to the guardian to do any of the acts mentioned in Section 29 shall not be granted by the court except in case of necessity or for an evident advantage to the ward. Section 31(2) provides the manner in which permission is to be granted. Section 31(3) provides the conditions that may be imposed while granting permission. Section 31(4) provides that before granting permission, the court may cause notice of the application to be given to any friend or relative of the ward.
9. The petition discloses that the family of the petitioner underwent tragedy due to the demise of Sh. Balvier Singh Kutthi, leaving the entire burden of the family on the shoulders of petitioner no.1. Petitioner no.1 is the natural guardian of minor Devansh Kutthi and she is looking after and maintaining minor who is living under her care and custody. GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.7 of 10 Petitioner no.1 has no adverse interest to that minor. The petitioner no.1 has no sufficient means/amounts for the good education and welfare of the minor.
10. Further, vide order dated 07.02.2024, statement of petitioner no.1 was also recorded wherein she undertakes that she will not sell the suit property below the amount of Rs.80 Lakhs. She also undertakes that she will deposit 1/4th share (not less than Rs.20 Lakhs) of her son i.e. petitioner no.2 in FDR till he attains the majority, however, she will utilize the amount of interest accrued thereupon only for the welfare of the minor. The disposal of the property in question seems a necessity and for an evident advantage to the minor. There is no material to gather an inference that her interest could be in conflict with or adverse to that of the minor.
11. No other LRs except respondent no.2 or any person from general public in response to the public notices, have come forward for raising any objection to the petition. There is no impediment in granting the permission as sought by the petitioner no.1. Accordingly, these issues are decided in favour of the petitioners.
Issue No.3 (Relief):
12. In view of the above findings, the petition is allowed. The petitioner no.1 is appointed as guardian and representative of petitioner no.2 and granted permission to sell ¼ undivided share of minor Devansh Kutthi in the suit property i.e. DDA Flat No.233A, Pocket-I, Mayur Vihar Phase-I, Delhi- GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.8 of 10 110091 total admeasuring 110 Sq. Yards, consisting of whole of the structure, built thereon fitted with electricity, tap water with meter, with the following conditions:-
a) That the sale of minor's share in suit property shall not be made below the market price with minimum total value of Rs.80 Lakhs of the entire property.
b) The share of minor, namely, Devansh Kutthi out of the sale proceeds of the property in question shall be kept in an interest bearing FDR with a Nationalized Bank for the period till petitioner no.2 attained majority with cumulative interest.
c) Upon majority, the petitioner no.2 shall be at liberty to utilize the FDR amount with accrued interest as per his wishes.
d) As soon as the sale has been made, a compliance report shall be filed within one month of the sale.
e) This permission shall not tantamount to vesting or conferring any right, title or interest in the properties proposed to be sold.
f) The petitioner no.1 shall not be entitled/allowed to any allowance.
g) The petitioner no.1 shall furnish a surety bond equivalent to the sale value of the share of minor but not less than Rs.20 Lakhs as per Form-D, given in chapter 2 part-D, Volume-2 of the Delhi High Court Rules;
h) Special attention of the petitioner has been drawn to the provisions of Section 26, 27, 28, 29, 32, 33, 35, 36, 39, 44 & 45 of The Guardians & Wards Act, 1890.
GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.9 of 10
13. On fulfillment of necessary conditions, the guardianship certificate as per Form-F given in Chapter-2, part- D, Volume-2 of the Delhi High Court Rules be issued.
Ordered accordingly.
File be consigned to record room after due compliance.
Announced in the open (AJAY GARG) Court on 13.03.2024. Additional District Judge-01 East District, KKD Courts/Delhi GP 09/23 Pushpa Kutthi & Anr. Vs. State & Anr. Page No.10 of 10