Nasma K Nasma Manzil v. Kerala Gramin Bank

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945** **WP(C) NO. 10429 OF 2023** ## **PETITIONER:** NASMA K NASMA MANZIL, NEAR SS HIGH SCHOOL, KARIMBAM, TALIPARAMBA, KANNUR, PIN - 670142 BY ADVS. UNNI. K.K. (EZHUMATTOOR) PRAFIN JOSEPH ZACHARIA ## **RESPONDENTS:** 1 KERALA GRAMIN BANK REPRESENTED BY ITS GENERAL MANAGER, KGB TOWERS, AK ROAD, UPHILL MALAPPURAM, PIN - 676505 2 BRANCH MANAGER KERALA GRAMIN BANK KARUVANCHAL P.O, KANNUR, PIN - 670571 BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) JAI MOHAN(D/2454/2009) PRANOY HARILAL(K/931/2018) FARHA MATHER K.B.(K/000988/2020) SMT. ARYA RAGHUNATH (AMICUS CURIAE) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.10429 OF 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C) No.10429 of 2023** **---------------------------------------------Dated this the 17[th] day of August, 2023** # **JUDGMENT** ## The above writ petition is filed with the following prayers: _“i) issue a writ of mandamus or any other appropriate writ order of direction, commanding 2[nd] respondent, to release the money with interest from Ext.P3 and P4 deposits belongs to Late Hamza to the legal heirs mentioned in Ext.P2 forthwith._ _ii) To declare that the 2[nd] petitioner has no authority to retain the deposit of late Hamza even after production of Legal heir ship certificate and_ _iii) issue such other appropriate writ, order or direction as this Hon’ble Court deem fit and proper, in the circumstances of the case”[SIC]_ WP(C) NO.10429 OF 2023 3 2. Petitioner is the widow of Hamza K., who died on 25.10.2020 as evident by Ext.P1 death certificate. Petitioner and 4 children are the legal heirs of deceased Hamza, is the submission. Ext.P2 is the legal heirship certificate issued by the Tahsildar, Taliparamba. It is submitted that, late Hamza was running a shop at Karuvanchal and owns two bank accounts with the 2[nd] respondent. Altogether Rs.3,41,453/- belongs to late Hamza is with the 2[nd] respondent bank, is the submission. Exts.P3 and P4 are the first page of the pass books of the two accounts. After the death of Hamza, the financial status of the family became worst and the petitioner requested the 2[nd] respondent to release the money to the petitioner and her children to meet the educational and other expenses. But the 2[nd] respondent was not ready to release the money. WP(C) NO.10429 OF 2023 4 The petitioner also issued a legal notice to the 2[nd] respondent, as evident by Ext.P5. Even then, there is no response. Hence this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Standing counsel appearing for the respondents. This Court appointed Adv.Arya Raghunath as Amicus Curiae to address the question of law raised in this case. 4. A statement is filed by the respondents. It will be better to extract paragraph No.9 of the statement: _“9. In the present matter it is submitted that with the deceased account holder and his legal heirs being governed by the principles of Mohameddan law, no guardian of property is identifiable as enumerated under section 359 of Mulla's principles of Mohameddan Law. Section 359 enumerates the persons entitled, in the order_ WP(C) NO.10429 OF 2023 5 _mentioned therein to be the guardian of the property of a minor, namely, (1) the father; (2) the executor appointed by the fathers's will; (3) the father's father; (4) the executor appointed by the will of the father's father. Further, it is settled law that under Mohameddan law mother cannot act as a property guardian of a minor. It is therefore respectfully submitted that the Respondent bank is in no state to accede to the request of the Petitioner.''_ 5. In the above paragraph, it is stated that, as per the principles of Mahomedan Law, no guardian of property is identifiable as enumerated under Section 359 of Mulla principles of Mahomedan Law. It is the case of the respondents that, Section 359 enumerates the persons entitled, in the order mentioned therein to be the guardian of the property of a minor, namely, (1) the father; (2) the executor appointed by the fathers's will; (3) WP(C) NO.10429 OF 2023 6 the father's father; (4) the executor appointed by the will of the father's father. It is also stated that, it is settled law that under the principles of Mahomedan Law mother cannot act as a property guardian of a minor. It is therefore, submitted that the respondent bank is not in a position to release the amount to the petitioner who is the wife of deceased Hamza. 6. Admittedly, the petitioner and four children are the legal heirs as per Ext.P2. Petitioner's son Muhammed Adhil is a minor. It is submitted that, Fidha Mariyam K., daughter of the petitioner mentioned in Ext.P2 is now major. Petitioner and the Amicus Curiae relied on Section 361 of the principles of Mahomedan Law which is extracted hereunder: _“361. De facto guardian.- A person may neither_ WP(C) NO.10429 OF 2023 7 _be a legal guardian (s. 359) nor a guardian appointed by the Court (s. 360), but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor._ _The expression "de facto guardian" is used in contradistinction to "de jure guardian." Legal guardians (s. 359) and guardians appointed by the Court (s. 360) are de jure guardians. The mother, brother, uncle, and all relations other than the father and father's father are de facto guardians, unless they are appointed executor by the will of the father or father's father (s. 359), or are appointed guardians by the Court (s. 360)._ _A mother and her minor son executed a mortgage-deed. Later the son, as plaintiff, wanted to redeem the mortgage: It was held in the case that a de facto guardian has no power to transfer any right or interest in the immovable property of the minor and that such a transfer is not merely voidable but void. It is void also qua those who are sui juris. Ali Mohammad v. Ramniwas ('67) A. Raj. 258.”_ WP(C) NO.10429 OF 2023 8 7. Section 361 says that, a person may neither be a legal guardian (S.359) nor a guardian appointed by the Court (S.360), but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called defacto guardian. A defacto guardian is merely a custodian of the person and property of the minor. In this case, admittedly the petitioner and her children are the legal heirs of deceased Hamza. There is no dispute on that aspect from anybody. Petitioner is the wife of deceased Hamza. Petitioner submits that, she is ready to submit an affidavit of her three children before the respondents and the share of the petitioner and the three children may be released to the petitioner and her three children. The share of the minor child can be put in a fixed deposit treating the 9 WP(C) NO.10429 OF 2023 petitioner as the guardian. I think that practical approach can be adopted in this case in the peculiar facts and circumstances of this case. Therefore, this writ petition is disposed of with the following directions: i. The petitioner will submit a request to the respondents for releasing the amount in the bank Account Nos.404611000009277 and 40461110000111 along with an affidavit/consent letter from the other three children. ii. If such a request is received, the respondents will release the amount in the bank Account Nos.404611000009277 and 40461110000111 to the petitioner, after deducting the share of the minor child. iii. The share of the minor child can be WP(C) NO.10429 OF 2023 10 put in a fixed deposit treating the mother as the guardian. iv. Once the documents are produced with the request by the petitioner for releasing the amount, the respondents will disburse the amount, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment with the request and documents. This Court record appreciation to the Amicus Curiae who appeared and argued this case. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO.10429 OF 2023 11 ## **APPENDIX OF WP(C) 10429/2023** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE DATED 25.11.2020 ISSUED BY CORPORATION OF KANNUR EXHIBIT P2 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DATED 23.07.2021 ISSUED BY TAHASILDAR, TALIPARAMBA EXHIBIT P3 TRUE COPY OF THE 1ST PAGE OF PASSBOOK OF ACCOUNT NO. 404611000009277 EXHIBIT P4 TRUE COPY OF THE 1ST PAGE OF PASSBOOK OF ACCOUNT NO.40461110000111 EXHIBIT5 TRUE COPY OF LEGAL NOTICE DATED 21.02.2023 ISSUED TO THE 2ND RESPONDENT RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE