Deepthi v. Paulose @ Paul and Joseph Paul

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 13TH DAY OF AUGUST 2014/22ND SRAVANA, 1936 MFA.No. 41 of 2014 () ---------------------AGAINST THE ORDER IN GOP 650/2012 of VI ADDL.DISTRICT COURT, ERNAKULAM DATED 30-01-2014 APPELLANT/PETITIONER: ---------------------------- DEEPTHI, AGED 34 YEARS, W/O.LATE BENNY, MUTTATHOTTIL HOUSE, THAMARACHAL ERNAKULAM DISTRICT NOW EMPLOYED AT 12 WHIMBRIEL GREEN LARK FIELD ALYES FORT KENT, UK REPRESENTED BY HER FATHER-IN-LAW AS WELL AS POWER OF ATTORNEY HOLDER SRI.M.K.PAULOSE S/O.KURUVILLA, AGED 67 YEARS, MUTTATHOTTIL HOUSE THAMARACHAL, ERNAKULAM DISTRICT. BY ADV. SRI.PAUL K.VARGHESE RESPONDENTS/RESPONDENTS: ----------------------------------- 1. PAULOSE @ PAUL, AGED 58 YEARS S/O.PAULOSE, MADAKKAL HOUSE, PZHONGANADU KARA KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT PIN - 683 565. 2. JOSEPH PAUL, AGED 52 YEARS S/O.PAULOSE, MADAKKAL HOUSE, PZHONGANADU KARA KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT PIN - 683 565. R1 & 2 BY ADV. SMT.GEETHA.A.A( B/O) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-082014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID & ALEXANDER THOMAS, JJ. -----------------------------------------------------M.F.A No.41 Of 2014** **--------------------------------Dated this the 13[th] day of August, 2014.** ## **J U D G M E N T** ## **- - Harun Ul Rashid, J.** Petitioner is the appellant. The appeal is directed against the order dated 30.1.2014 in G.O.P.No.650/2012 on the file of the 6[th] Additional District Court, Ernakulam. The impugned order was passed in the petition filed under Section 8 of the Guardian and Wards Act, 1980 to declare and appoint the petitioner as the guardian of the minor 'Jacquline' and to ratify the transaction of sale of the petition schedule property in respect of the minor's share as per document No.3766/2007 of Puthencruz S.R.O in favour of the respondents. 2. The respondents filed a statement stating that they have no objection in allowing the prayer. It is also stated that they are bonafide purchasers and the sale deed has been executed in their favour after receiving sale consideration and after depositing ` 3 Lakhs towards insurance policy in the name of the minor. The court below dismissed the petition. The appeal is preferred being aggrieved by the dismissal of ::2:: ## **M.F.A No.41 Of 2014** the petition. Parties are hereinafter referred to as arrayed in G.O.P.No.650/2012. 3. Petitioner is the wife of late Benny. She is the mother and natural guardian of minor 'Jacquline' born on 3.10.2003 in the wedlock of the petitioner and late Sri.Benny. Benny died on 27.7.2006 leaving behind the petitioner and minor daughter as legal heirs. The minor is under the care and custody of the petitioner. The petition schedule property is originally owned by late Benny. After his death, the petitioner and her daughter became the co-owners of the property. Petitioner's case is that the property is lying in a remote area and the petitioner find it difficult to maintain the property. In the circumstance, the petitioner decided to sell the property. According to her, the sale of property is for the benefit and advantage of the minor. It is stated that the sale consideration of the minor's share can be utilised for the future of the minor and petitioner. After negotiation, the petitioner sold the property for her and on behalf of the minor daughter to the respondents as per sale deed No.3766/2007. The sale proceeds of the minor is deposited in the Bajaj ::3:: ## **M.F.A No.41 Of 2014** Alliance Life Insurance Company as per Policy No.0042627127. It is said that the petitioner has no interest against the interest of the minor and the petitioner is having the capacity and ability to look after the minor who is now under the care and custody of the petitioner. Two persons including the grandmother of the minor filed affidavits stating that the petitioner has no interest against the interest of the minor and she is the best person to be appointed as the guardian of the minor as well. The father-in-law of the petitioner was examined and Exts.A1 to A5 were marked. The property has been sold by Ext.A5 to the respondents. 4. The sale proceeds of the minor's share have been deposited in the Bajaj Alliance Life Insurance Company, Perumbavoor. A perusal of the policy would reveal that ` Three Lakhs was deposited in the New Unit Gain Plus Scheme of Bajaj Alliance Life Insurance Policy in the name of the minor for an assured sum of ` 3,75,000/- with maturity date 12.3.2027. The learned Judge without examining the grievance of the petitioner and without satisfactory reasons held that the transaction of the share of the minor child in the ::4:: ## **M.F.A No.41 Of 2014** petition schedule property is not bona fide and not in the best interest of the child. The court below also quoted the decisions of this Court reported in _**Paul v. Biju**_ [2012 (1) KLT SN 71 (C.No.85)] and _**Jince Mary Johns v. Johny**_ (2011 (4) KLT 533). In _**Paul's case**_ (supra), this Court held that the father and natural guardian of Christian minors is competent to alienate their properties for their welfare or for the benefit of the properties as prudent man would deal. It was held that no previous sanction of the court is necessary for such alienations. It was also held that when the Guardians and Wards Act does not provide that a natural guardian shall not without the previous permission of the court, transfer by sale or otherwise, of the properties of the minor it is not at all necessary to obtain previous sanction of the court to effect sale or transfer. In this case also, the parties are Christians. Previous sanction of the court is not necessary for the natural guardian to transfer the minor's share. In _**Jince Mary Johns's case**_ (supra), this Court held that the court can grant sanction _ex post facto_ and ratify the action taken by the parent, who is the guardian, before the application for ::5:: ## **M.F.A No.41 Of 2014** declaration as to guardianship is filed if it is shown that the transaction is bona fide, in the best interest of the child and to its evident advantage. 5. The petitioner is the mother and natural guardian of the minor daughter. The property belongs to the petitioner and minor daughter. Petitioner is the permanent resident of Ernakulam. The property is lying in a remote place in Thiruvananthapuram. The petitioner find it difficult to maintain the property since the property is lying in a remote area and the property is not fetching any income. In the circumstance, the sale of the property to the respondents cannot be said to be bona fide not in the absence of any contra evidence to prove that the mother who is caring and protecting the child finds it difficult to maintain and look after the property lying at a long distance. If she bona fide believe that the sale of the property will be in the best interest of herself and her minor daughter, there is nothing wrong in selling such property to the best advantage of the mother and child. Previous sanction of the court is not necessary for effecting transfer. ::6:: ## **M.F.A No.41 Of 2014** 6. Even though sanction is not necessary to transfer the property, the petition filed by the petitioner can be treated as a petition for ratification of the transaction as held in _**Jince Mary Johns's case (supra).**_ Disposal of immovable property of a minor by a Christian natural guardian will not be affected by Section 30 merely on the ground that previous permission of the court was not obtained in terms of Section 29 of the Act. This Court also held as follows: _“When it is shown that the application for such declaration is bona fide, and that the transaction entered into before that application was not only bona fide but was also to the best interest of the child and to its evident advantage, the court would necessarily consider that case for granting sanction ex post facto i.e., to say, ratify the action taken by the guardian before the application for declaration as to guardianship is filed._ In the result, G.O.P.No.650/2012 on the file of the 6[th] Additional District Court, Ernakulam is allowed. This Court ratify the transaction of sale of the petition schedule property ::7:: ## **M.F.A No.41 Of 2014** in respect of the minor's share as per sale deed No.3766/2007of Puthencruz S.R.O. in favour of the respondents. The appellant/petitioner is appointed as the guardian in respect of the person of the minor and her properties. **HARUN-UL-RASHID, Judge.** **ALEXANDER THOMAS, Judge.** bkn/-