KANCHANA, BEENA & BINIJA v. LETHA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936** **MFA.No. 87 of 2014 () ----------------------** **AGAINST THE JUDGMENT IN OPGW 438/2013 of ADDL.DISTRICT COURT, THRISSUR DATED 18-06-2014** **APPELLANTS:** **------------------------** **1. KANCHANA AGED 49 YEARS D/O.LATE MUKKANAMKULNAGARA UNNI AND W/O.THAMARASSERY VISWANATHAN HOUSE NO.8/205 OF PUNNAYURKULAM PANCHAYATH PUNNAYURKULAM DESOM, CHAVAKKAD, THRISSUR DISTRICT.** **2. BEENA AGED 46 YEARS D/O.LATE MUKKANAMKULNAGARA UNNI AND W/O.NAYARAMBIL BABU HOUSE NO.8/562 OF THISSUR CORPORATION THRISSUR TALUK P.O., KURIACHIRA-680 006 THRISSUR DISTRICT.** **3. BINIJA D/O.LATE MUKKANAMKULNAGARA UNNI AND W/O.KODAVALPPIL CHANDRAN HOUSE NO.9/277, KADAVALLUR PANCHAYATH P.O. KORATTIKKARA-680 543, KODUVALLUR VILLAGE THALAPPILLY TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.RAJIT** **RESPONDENTS:** **----------------------------** **LETHA, AGED 38 YEARS W/O.LATE MUKKANAMKULAGARA RAMADAS, HOUSE NO.3/139 KATTAKAMBAL VILLAGE AND DESOM P.O. KATTAMBAL-680 544, THALAPPILLY TALUK THRISSUR DISTRICT.** **R1 BY ADV. SRI.V.V.JOY** **THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 24-10-2014 ALONG WITH MFA(G&W)103/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **MFA (G&W) No.87 & 103 OF 2014** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of October , 2014 ## **JUDGMENT** ## Ramachandran Nair, J. These two appeals are filed by the respective parties aggrieved by the order passed in O.P.No.438/2013 by the court below. 2. By the said order, the O.P. has been dismissed . The appellant in M.F.A.(G&W) No.103/2014 filed the application before the First Additional District Judge, Thrissur invoking Sections 7,8,9,10 and 29 of the Guardians and Wards Act to appoint herself as guardian of the minor children in order to partition the joint family property and for allocation of the shares on behalf of the minors to the petitioner. She is the widow of late Sri.Unni Appu @ Ramdas. 3. The appellants in the other appeal are the sisters of late Unni Appu @ Ramdas, who died on 15.9.2010. The two children of the appellant in M.F.A.(G&W) No.103/2014 are minors. The total 2 MFA(G&W)Nos.87 & 103 of 2014 extent of property is 38.995 Ares along with a terraced residential house. It is stated that the sharers of the property would be the widow and children of deceased Unni Appu along with three sisters. Each sharer would therefore legally get an extent of 9.75 Ares of property. It is stated that the well-wishers and other parties i.e. the appellants in M.F.A.(G&W) No.87/2014 decided that wife and children of deceased Unni Appu be given the residential house along with a larger extent of share in order to help them. Accordingly, the wife and children were given an extent of 13.765 Ares along with the residential house and the remaining 25.235 Ares was decided to be allotted to the share of the appellants in M.F.A.(G&W) No.87/2014. Partition deed was executed as Partition Deed No.2637/2012 of Sub Registrar Officer, Akkikavu. 4. Since the property belongs to the minors also, the mother who is the appellant in M.F.A.(G&W) No.103/2014 filed the O.P. to appoint herself as guardian and ratify the allocation of shares. 5. We heard the learned counsel on both sides. 6. It is submitted that going by the decision of this Court in 3 MFA(G&W)Nos.87 & 103 of 2014 **Jince Mary Johns v. Johny (2011 (4) KLT 533)** , which has been followed in another judgment reported in **2014(4) KHC 65 (DB) ( Deepthi v. Paulose @ Paul and Another)** , even if permission was sought after the partition was effected, that will not prevent the court from ratifying the same. We find on a perusal of the order passed by the learned Judge that the learned Judge was of the view that the partition is not a transfer of immovable property and that partition is not covered by Section 29 of the Guardians and Wards Act. It was also stated that the application is filed to ratify the partition effected earlier which cannot be done by granting permission under Section 29 of the Guardians and Wards Act. 7. In the light of express terms of Section 29 of the Act, as far as partition is concerned, it is not specifically mentioned in the section. But as far as the aspect of appointment of mother as guardian and ratification of the action taken by the mother, the same is permitted in the light of the view taken by this Court in **Jince Mary Johns v. Johny (2011 (4) KLT 533)** . MFA(G&W)Nos.87 & 103 of 2014 4 8. In paragraph 11 of the said judgment, this court was of the view that ex post facto permission can be granted provided the court is satisfied that the transaction is bonafide. We extract the said paragraph hereunder : “ _11. With the aforesaid in mind, adverting to the facts of the case, it can be seen that the ward Tharun unfortunately lost his father while an infant. The mother, widowed at a young age, going by the materials on record, took care of the child, brought him up and had provided everything that is needed for the physical and emotional well being and evaluation of Tharun. She is not criticized by the relatives of having acted in any manner against the interest of Tharun. The affidavits filed in answer to the notices issued by this Court speak in support of her contribution to the welfare of the child. She is one who has discharged the duties of the guardian in terms of S.24 of the G. & W.Act. She has supported him, taken care of his health and education and all other matters as are required for Tharun. Now, he has grown up to be sixteen years of age. As already noticed, (the transaction in relation to which the mother sought permission was already entered into before she made the application under S.29. Remember, as already noted, she was not the guardian appointed by the court. Nor is she a testamentary guardian. There is also no declaration by the court that she is a guardian. Therefore, in terms of law as enunciated above, she was not bound to get previous_ MFA(G&W)Nos.87 & 103 of 2014 5 _permission for the transaction. When confronted with the requirement for the transferee to clear any cloud on the title that was passed, she approached the court for a declaration that she is the guardian. Along with that, she applied for permission for the transaction. This, obviously, means that she was requesting for ex post facto approval of the transaction which she had entered into on behalf of and for the benefit of Tharun. The liability to seek previous sanction in terms of S.29, in the case of the parent who is the guardian, would arise in terms of the provisions of the G. & W. Act only when that person is declared by the court as the guardian. Preponing this effect to the date of application, it could also be held in favour of minor, as a principle of law, that such permission has to be sought for even in cases where application for declaration as to guardianship is pending. 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 in 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 case in hand, the fact that Tharun is going up the ladder of his pursuit of education and is reaching the final years of schooling, requiring further financial support, needs no elaboration. The further requirement of Tharun for support, financially and also for fair atmosphere to grow up to an adult is only a matter of which the mother would be concerned. Therefore, when the mother_ MFA(G&W)Nos.87 & 103 of 2014 6 _says that the fund generated by sale have been invested in the name of Tharun in the LIC or other investments and also that she has purchased a residential building, there is no reason to doubt her bona fides. Not only that, such materials abundantly disclose that the transaction entered into by her was in the best interest of the child and owing to the necessity and that the said transaction brought an evident advantage to the ward Tharun. Therefore, we are satisfied that the finding of the trial court to the contrary are unsustainable. We also do not find any ground to sustain the view of the court below that because the mother had entered into the transaction without prior sanction of the court, she should be held to have not acted in the best interest of Tharun. This finding would not stand in the light of the principles of law as noted above.”_ ## 9. In the subsequent decision in **2014(4) KHC 65 (DB) ( Deepthi v. Paulose @ Paul and Another)** also, the same view has been taken in paragraph 6, which is extracted below : “ 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 John'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 MFA(G&W)Nos.87 & 103 of 2014 7 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.”_ 10. Herein, going by the partition deed, wife and children of the deceased have been alloted the residential house along with 13.765 Ares of land. It is submitted that normally they would have been entitled for 9.75 Ares of land. Therefore a larger extent has been allotted to them. In that view of the matter, we are of the view that the rights of the children are not affected by the partition deed executed and they are benefited also. The transaction is a bonafide one. In that view of the matter, we ratify the action of the appellant in M.F.A.(G& W) No.103/2014 in executing the partition deed for herself and on behalf of minor children. The appellant in M.F.A.(G& W) 8 MFA(G&W)Nos.87 & 103 of 2014 No.103/2014 is appointed as the guardian and the O.P.(Guardian) No.438/2013 of the I Additional District Judge, Thrissur will stand allowed. The appeals are accordingly allowed. ## **T.R.RAMACHANDRAN NAIR, JUDGE** **P.V.ASHA, JUDGE** sv. MFA(G&W)Nos.87 & 103 of 2014 9