Lissy v. Annie, Jacob, Francis, Sebastian, Stanly, Elsy, Sudharsan and others (MFA(G&W)105/2014)

## **C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936 MFA.No. 105 of 2014 ----------------------- AGAINST THE ORDER IN OP(GUARDIAN) 538/2013 of ADDL.DISTRICT COURT, THRISSUR DATED 27-08-2014 ## APPELLANT/PETITIONER: ---------------------------------------------- LISSY, AGED 35 YEARS W/O LATE ZAKARIYAS, S/O OUSEPH @ GEORGE CHOWALLUR HOUSE, KURUMAL DESOM, VELUR VILLAGE THALAPPILLY TALUK ADDL. APPELLANTS: ANJANA, AGED 14 YEARS, D/O. LATE ZAKARIYAS, CHOWALLUR HOUSE, KURUMAL DESOM, VELUR VILLAGE THALAPPILLY TALUK AND AGNA, AGED 11 YEARS, D/O. LATE ZAKARIYAS, CHOWALLUR HOUSE, KURUMAL DESOM, VELUR VILLAGE THALAPPILLY TALUK, WHO ARE REPRESENTED BY THE MOTHER, 1ST APPELLANT, ARE ADDED ALONG WITH THE NAME OF THE APPELLANT AS PER ORDER DATED 4.11.2014 IN I.A. No. 3305/2014. BY ADV. SRI.RAJIT ## RESPONDENTS/RESPONDENTS: ---------------------------------------------------- 1. ANNIE, W/O OUSEPH @ GEORGE, CHOWALLUR HOUSE, KURUMAL DESOM VELUR VILLAGE, THALAPPILLY TALUK 2. JACOB, AGED 42 YEARS S/O OUSEPH @ GEORGE, CHOWALLUR HOUSE, KURUMAL DESOM VELUR VILLAGE, THALAPPILLY TALUK MFA(G&W)105/2014 2 ## 3. FRANCIS, AGED 39 YEARS - S/O OUSEPH @ GEORGE, CHOWALLUR HOUSE, KURUMAL DESOM VELUR VILLAGE, THALAPPILLY TALUK 4. SEBASTIAN, AGED 35 YEARS S/O OUSEPH @ GEORGE, CHOWALLUR HOUSE, KURUMAL DESOM VELUR VILLAGE, THALAPPILLY TALUK 5. STANLY, AGED 34 YEARS S/O OUSEPH @ GEORGE, CHOWALLUR HOUSE, KURUMAL DESOM VELUR VILLAGE, THALAPPILLY TALUK 6. ELSY, AGED 50 YEARS D/O OUSEPH @ GEORGE, CHOWALLUR HOUSE, KURUMAL DESOM VELUR VILLAGE THALAPPILLY TALUK AND W/O SIMON OIAKKENGAL HOUSE VENGILISSERY DESOM, VELUR VILLAGE, THALAPPILLY TALUK 7. SUDHARSAN, AGED 40 YEARS S/O PALLIVIL GOPALAN PARLLIKKAD DESOM NOW AT THALAKOOTTUKARA DESOM CHIRANELLUR VILLAGE, THALAPPILLY TALUK THRISSUR DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER SMITHA SUDHARSAN PARLLIKAD DESOM NOW AT THALAKKOTTUKARA DESOM CHIRANELLUR VILLAGE, THALAPPILLY TALUK THRISSUR DISTRICT 8. ANJANA, AGED 14 YEARS D/O LATE ZAKARIYA, CHOWALLUR HOUSE, ----DELETLED KURMAL DESOM VELUR VILLAGE, THALAPPILLY TALUK 9. AGNA, AGED 11 YEARS D/O LATE ZAKARIYAS, CHOWALLUR HOUSE, KURUMAL DESOM --DELETED VELUR VILLAGE, THALAPPILLY TALUK RESPONDENTS 8 AND 9 ARE REPRESENTED BY THEIR MOTHER LISSY, CHOWALLUR HOUSE, VELLUR VILLAGE, THALAPPILLY TALUK. THE 8TH AND 9TH RESPONDENTS ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 4.11.14 IN I.A. NO 3305/2014. R1-7 BY ADV. SRI.V.V JOY (B/O) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON MFA(G&W)105/2014 3 11-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.** # **THOTTATHIL B. RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** **============================== M.F.A.(G&W)No. 105 OF 2014 ============================== Dated this the 11[th] day of November, 2014** ## **JUDGMENT** ## **Thottathil B. Radhakrishnan, J.** This appeal is against the order by which the District Court has dismissed an original petition filed invoking Sections 7, 8, 28 and 29 of the Guardians and Wards Act, 1890, hereinafter referred to as 'G&W Act'. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents, who appeared. 3. The immovable properties in relation to which the matter was originally filed relate to Ouseph, the paternal grandfather of Anjana and Agna, two minor children of MFA(G&W)105/14 2 Seharia Zakariyas, one of the sons of Ouseph, who died intestate on 2.5.2007. There is no dispute on relationship. The heirs of Ouseph entered into a partition. Under that, certain items get allotted to the heirs of Seharia Zakariyas, i.e., his widow Lissy, the appellant, and the aforenoted two minor daughters. The mother of the minors applied to the court below seeking that the said transaction of partition may be ratified. That stands dismissed as per the impugned order. 4. _Stricto senso_ , permission under Section 29 of the G&W Act is not necessary for partition, because that is not one of the transactions which fall under clause (a) or clause(b) of Section 29 of the G&W Act. The District Judge is right in saying so. As rightly noted by the court below, the Legislature has consciously excluded partition from Section 29, because partition is not included while other types of transactions are included. This could, MFA(G&W)105/14 3 obviously, be indicative of the fact that previous permission of the court may not be necessary for a partition involving the interest of minors. But while a partition takes place, it tends to touch upon the legal rights of minors who are involved in the partition. Their right to property; right to due share, eligibility for proper allotment; and, entitlement to proper protection orders in relation to the allotted properties; are among different considerations that may arise in relation to protecting the rights of the minors. The provisions in the G&W Act are not restrictive covenants _qua_ the judicial authority of the District Judge and the District Court. This is for simple reason that the Court operates in the realm of _parents patria_ in relation to the rights of minors. This is the seminal principle of law relating to minors. The fundamental duties of a parent can be traced to different provisions of the Constitution of India, including Article MFA(G&W)105/14 4 51A(k) and those emanating; reciprocally, and, attendant to; from the various legal rights and constitutional rights, including fundamental rights of the children. A meaningful and purposive study of different provisions of statute laws, child right and human right documents, including covenants and declarations in the international domain will stand advising the spread of flow of the rights of children to support, in the backdrop of different provisions, including Article 21 of the Constitution of India. Provisions relating to protection of child rights which are thus part of parental duties as well are among the principles to be followed for the welfare of the people. Those principles of policy to be followed relate to health, education, opportunity, material resources, fraternity and protecting family relationships which is part of the rich heritage of our composite culture. All the institutions of national life are duty bound to strive to promote such MFA(G&W)105/14 5 principles to ensure justice in accordance with the Constitution. Judiciary is an institution of national life. Courts are therefore duty bound to be guided by the pearls of wisdom which emanate from the Constitution and the laws. The constitutional gaze is the ever-guiding factor for any exercise of governance. This is so also in the exercise of judicial authority in terms of the Constitution and the laws. Every statute has to be understood and applied in the backdrop of the relevant societal purpose as is discernible from the Constitution. 5. The mere absence of partition being among the transactions enumerated in Section 29 does not denude the District Judge of the authority to look into the affairs of a minor when such matter comes before that officer or court. Under such circumstances, when the natural guardian of a child brings a transaction which has already been entered into, for the perusal and ratification of the MFA(G&W)105/14 6 Court; what is required is for that Court to examine whether there has been a _bona fide_ exercise of parental care, caution and due diligence as expected from natural or legal guardian. This is how the statutory provisions in the G&W Act have to be synchronised with the _parents patria_ authority of the Court to render meaningful, situational and substantial justice. If the Court is satisfied that it is so done, the stamp of approval of the judicial authority will only add credibility to the transaction which involves a minor. 6. The decision of this Court in **Jince Mary Johns v. Johny [2011(4)KLT 533],** which has been followed in another judgment reported in **Deepthi v. Paulose @ Paul and Another [2014(4)KHC 65(DB)],** laid down some of the guidelines that could be applied in such situations. Those principles have been incorporated to cases relating to partition also, as per the decision of the MFA(G&W)105/14 7 Division Bench of this Court in M.F.A.(G&W)Nos.87 & 103 of 2014 **.** We approve and follow those judgments as laying down the correct principles of law. 7. The primary question, as noted above, is not as to whether a particular transaction is one which falls under Section 29 of the G&W Act, but would be whether the transaction is in the best interest of the minor concerned. Even in cases relating to Section 29, such enquiry has to be conducted. The fact that previous permission in terms of Section 29 is not a statutory requirement does not take away the power of the Court to look into the transactions and consider whether they are in the best interest of the minor child. On the basis of the materials placed before it, if the Court is satisfied on judicial scrutiny that the transaction is in favour of the best interest of the minor, the seal of approval of that judicial authority ought to be granted. MFA(G&W)105/14 8 8. We have looked into a copy of the transaction which is a partition entered into between the heirs of Ouseph, including on behalf of the two minors. We are satisfied that the allotment is beneficial to the minors and it in no way adversely affects their interest. It is a _bona fide_ one. The execution of the partition deed is only to be approved. In the result, the impugned order is set aside and the original petition filed before the court below will stand allowed as prayed for. Sd/- **THOTTATHIL B. RADHAKRISHNAN JUDGE** Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. To Judge MFA(G&W)105/14 9