Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Mir vs Mst. Batool on 16 March, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 04.03.2021
Pronounced on:16 .03.2021
CM(M) No.37/2021
CM No.1202/2021
Bashir Ahmad Mir ...Petitioner(s)
Through: - Mr. S. A. Naik, Advocate.
Vs.
Mst. Batool ...Respondent(s)
Through: - Mr. Mir Majid Bashir, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged the order dated 16.02.2021, passed by learned Principal District Judge, Baramulla, whereby in execution proceedings under Guardian and Wards Act, the learned trial court has, while rejecting the objection raised by the petitioner herein, directed him to comply with order dated 02.05.2017 passed by the said court within 15 days.
2) Before coming to the instant petition, let me give a brief background of the facts leading to filing of the instant appeal.
3) It appears that the petitioner herein had filed an application under Section 25 of the Guardian and Wards Act before the trial court MOHAMMAD ALTAF BHAT seeking physical custody of minor son from his former wife, the 2021.03.16 14:56 I attest to the accuracy and integrity of this document 2 CM(M) No.37/2021 CM(M) No.37/2021 CM No.1202/2021 respondent herein. It appears that during the course of said proceedings, the parties entered into a compromise and the petition was disposed of in terms of the compromise arrived at between the parties and an order came to be passed in this regard by the learned trial court on 02.05.2017. Clause (7) of the compromise settlement arrived at between the parties before the trial court, it appears, has become a bone of contention between the parties. It reads as under:
"7.That it has been agreed by the petitioner that he transfers his houseNo.234 Section 2 situated at Gulbarg Colony Hyderpora Srinagar by way of gift to minor which has been accepted by the respondent on behalf of the minor. The minor shall be exclusively the owner of the said house. In case respondent remarries, the house will remain in the continuously ownership of the minor, but the petitioner shall be guardian for the property of the minor till the minor attains the majority. He is not permitted to dispose of the said house or create any third party interest in the said house."
4) It appears that in terms of the afore-quoted covenant of the settlement, the necessary follow up steps were not taken by the petitioner herein which compelled the respondent herein to approach the learned trial court by way of an Execution Petition. To the said Execution Petition, the petitioner had raised an objection with regard to its maintainability as, according to him, the condition No.7 of the agreement is not lawful and that he cannot be compelled and constrained to execute a deed of gift in favour of the minor. It was also urged by the petitioner that if he is compelled to execute a deed of gift in favour of the minor, the same would render him shelter-less. The learned trial court while noticing that other six conditions MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document 3 CM(M) No.37/2021 CM(M) No.37/2021 CM No.1202/2021 mentioned in the order dated 02.05.2017 have been complied with by the parties, observed that the objections raised by the petitioner herein to the execution proceedings are without any merit. It was held that Section 43 of the Jammu and Kashmir Guardian and Wards Act specifically empowers the Court to ensure that the order drawn for welfare of the child is complied with by taking recourse to the power as if the matter before the Court is the one under Order 39 Rule 1 & 2 CPC. The learned trial court further held that the petitioner herein has no escape route to show non-compliance of order dated 02.05.2017 and any non-compliance on his part would expose him to disobedience proceedings in terms of Section 43 of the Guardian and Wards Act.
5) I have heard learned counsel for the parties and perused the impugned order as well as order dated 02.05.2017 passed by the learned trial court.
6) Before coming to the merits of this case, it would be apt to notice the extent and scope of jurisdiction vested in the High Court under Article 227 of the Constitution. The Supreme Court in the case of Radhey Shyam & anr. v. Chhabi Nath & Ors, (2009) 5 SCC 616. while considering the scope and extent of jurisdiction of the High Court under Article 227 of the Constitution has held that the said Article vests the High Courts with a power of superintendence which is to be exercised very sparingly to keep tribunals and courts within bounds of their authority. It was further held that under Article 227, MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document 4 CM(M) No.37/2021 CM(M) No.37/2021 CM No.1202/2021 orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage has been occasioned and that such power is not to be exercised to correct a mistake of fact and of law.
7) Adverting to the facts of the present case, let me now see whether the petitioner herein has been able to make out an exceptional case where manifest miscarriage of justice has been occasioned on account of the impugned order passed by the learned trial court. It is only in that circumstance that this Court would intervene and interfere with the impugned order.
8) It is not in dispute that the parties to the proceedings had entered into a compromise out of their free will and volition before the learned trial court on the basis of which the parties agreed to comply with seven conditions which formed part of order dated 02.05.2017 passed by the learned trial court. It is also not in dispute that out of these seven conditions, six conditions have been fulfilled by the parties. It is only the condition No.7 that has become a bone of contention between the parties. As per this condition, the petitioner was required to transfer his house situated at Gulberg Colony, Hyderpora, by way of a gift, in favour of his minor son. It is further provided in condition No.7 that in case respondent herein remarries, the house will remain in continuous ownership of the minor and the petitioner would be the guardian of the minor till the minor attains the age of majority.
MOHAMMAD ALTAF BHAT2021.03.16 14:56 I attest to the accuracy and integrity of this document 5 CM(M) No.37/2021 CM(M) No.37/2021 CM No.1202/2021
9) Learned counsel for the petitioner has submitted that the petitioner cannot be compelled to execute a deed of gift in favour of his minor son as the gift deed, as per the Section 123 of the Transfer of Property Act, can be made only if the donor makes it voluntarily. He has further contended that in condition No.7, no timeframe has been given for execution of the gift deed, as such, it is open to the petitioner to execute the same at his will and wish.
10) So far as the question regarding voluntary nature of the execution of the gift is concerned, it is not in dispute that the petitioner had, out of his free will and volition, agreed to make transfer of the property in question in favour of his minor son in terms of the agreement. So there is no question of forcible execution of the deed of gift in favour of the minor. It does not lie in the mouth of the petitioner to resile from the statement made by him on oath before the trial court while entering into a compromise with the respondent.
11) As per the terms of compromise, the petitioner essentially undertook to convey the property in question in favour of his minor son. Therefore, there is no such illegality involved in the said undertaking as would render it unenforceable at law. The petitioner cannot be allowed to hide behind the technicalities in order to wriggle out of his obligations towards his minor son. If the petitioner is allowed to do so, it would adversely impact the MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document 6 CM(M) No.37/2021 CM(M) No.37/2021 CM No.1202/2021 welfare of the minor, which has to be the paramount consideration in the proceedings under the Guardian and Wards Act. It is with this view in mind that the trial court had passed order dated 02.05.2017 on the basis of the compromise arrived at by the parties. Any attempt to whittle down the aforesaid compromise, which has merged into the order of Guardian Court, would not be in the interest of the welfare of the minor child. Therefore, the contention of learned counsel for the petitioner deserves to be rejected.
12) So far as the contention of the learned counsel for the petitioner that the petitioner will be rendered shelter-less in case he executes a deed of gift in respect of his residential house in favour of his minor son, is concerned, the same is without any basis because the condition No.7 takes care of such an eventuality. It specifically provides that in case respondent remarries, the house will remain in continuous ownership of the minor and in that case, the petitioner shall remain guardian of the minor so far as the property in question is concerned till the minor attains the age of majority. So there is no question of dispossession of the petitioner from his house even if respondent remarries. There is a further safeguard that the house cannot be sold nor can third party interests be created therein till the minor attains the age of majority.
MOHAMMAD ALTAF BHAT2021.03.16 14:56 I attest to the accuracy and integrity of this document 7 CM(M) No.37/2021 CM(M) No.37/2021 CM No.1202/2021
13) The last contention that has been raised by the learned counsel for the petitioner is that there is no timeframe given in condition No.7 for its fulfillment and, as such, the petitioner can fulfill the same at his own sweet will. The argument of the learned counsel is specious, inasmuch as the minor cannot wait till eternity to enforce his rights in terms of the settlement arrived at between the parties. He has waited for a reasonable time of about three years and when the petitioner did not fulfill condition No.7, he was well within his rights to approach the learned trial court for execution of the order dated 02.05.2017.
14) For the foregoing discussion, it is clear that the impugned order passed by the learned trial court is lucid and well-reasoned. There is no illegality, infirmity or mistake in the said order, much less a mistake that has led to manifest miscarriage of justice to the petitioner herein. Therefore, there is no merit in this petition. The same is, accordingly dismissed along with connected CM.
15) Parties to bear their own costs.
(Sanjay Dhar)
Judge
Srinagar
16.03.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2021.03.16 14:56
I attest to the accuracy and
integrity of this document
8 CM(M) No.37/2021
CM(M) No.37/2021
CM No.1202/2021
Pronounced today on 16.03.2021 in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.
(Vinod Chatterji Koul) Judge MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document