IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 MFA.No. 110 of 2011 ---------------------------- OPGW.880/2007 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT/PETITIONER: ------------------------------------- MRS.JINCE MARY JOHNS, W/O.LATE ELDO SURESH MATHEW ALIAS ELDO K.MATHEW, RESIDING AT KILUTHATTIL, ELDO RADO, MYTHRIPURAM CROSS ROAD, KAKKANADU, KOCHI - 21. BY SR.ADV. SRI.V.CHITAMBARESH SRI.S.ANANTHAKRISHNAN RESPONDENTS: ----------------------- 1. SRI.K.P.JOHNY, S/O LATE K.V.PAILY, KALLARAKKAL HOUSE, MUDAKKUZHA P.O., KURUPPAMPADY, ERNAKULAM DIST. 2. SRI.VARKEY, S/O LATE PAILY, KILITHATTIL HOUSE, THENGODE, KAKKANADU VILLAGE, ERNAKULAM DIST. BY ADV. SRI.T.C.SURESH MENON FOR ADDL.R1-2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thottathil B.Radhakrishnan & K.Surendra Mohan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = M.F.A.No.110 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of October, 2011. Judgment Thottathil B.Radhakrishnan, J. C.R. 1.Mathukutty had 38 cents of land. On his death, that devolved on his two children, including Eldho Suresh Mathew, who died on 1.6.1996 leaving behind his widow and an infant. The widow cared for and brought up that son, Tharun. In 2005, M/s.Carmelites of Mary Immaculate Congregation, a charitable religious institution, purchased a large extent of property, including the aforesaid property which originally belonged to Mathukutty. By succession, minor Tharun had 2/3rd of the ½ share of his late father in that property. Tharun's mother represented him in that sale and invested the child's share in Life Insurance MFA110/11 -: 2 :- Corporation of India and Shriram Investment Ltd. She also purchased 6.5 cents of land with a residential building in Thrikkakara Panchayat utilizing the sale consideration. It appears that thereafter, the vendees wanted her to clear any cloud on the transaction on account of the minority of Tharun. The mother, therefore, filed original petition under Section 7 and an application for relief under Section 29 of the Guardians and Wards Act, 1890, hereinafter, the 'G & W Act', for short. She applied that she be declared the guardian and be granted permission; essentially, ratification; for the transaction of sale made in favour of M/s.Carmelites of Mary Immaculate Congregation. There was no opposition to the petition. It needs to be noted that the appellant, widowed young and left with an infant then, did not re-marry, but brought up the boy who, at the time of institution of proceedings before the court below, in 2007, was 12 years of age and by now, around sixteen. The court below held that the sale having been entered into in MFA110/11 -: 3 :- 2005 without previous sanction of the Court in terms of Section 29 of the G & W Act, such transaction, to which the mother was a party, demonstrates that she is not a person who would protect the interest of the minor and by such sale, she has acted against the best interest of the minor. Accordingly, the request of the mother to appoint her as the guardian was dismissed holding that the action of the mother in that regard cannot be accepted. The request under Section 29 for permission or for ratification of the transaction was also refused as per the impugned order. 2.In the course of this appeal against the aforesaid order, we saw that certain persons who could be treated as interested in the affairs of Tharun are named in the original petition. We, impleaded them as supplemental respondents in this appeal and issued notice to them; one of whom is the minor's paternal grandfather's brother and the other, the maternal grandfather. MFA110/11 -: 4 :- Both of them have filed separate affidavits supporting the appeal and the petition and application from which it arises. They affirm that the appellant unfortunately lost her husband, but remained unmarried and brought up the infant, caring for him. 3.Relying on the judgment of this Court in Jancy Rajan[2009(1) ILR Kerala 676], the learned senior counsel appearing for the appellant argued that the courts should be considerate in granting permission to guardian, unless the guardian has an interest adverse to that of the minor. He further argued that at least in exceptional cases, the requirement in Section 29 of the G & W Act as to previous permission could be excused if it becomes necessary in the interest of the minor and in such a context, the court below could ratify the transaction. He points out that, on facts, the transaction in question ought to have been held as one such, particularly when it has been pleaded and shown that the funds were MFA110/11 -: 5 :- utilized for purposes of the child. He says that the bonafides of the mother was beyond any pale of suspicion and the court erred in law and on facts in holding that the appellant's conduct shows that she is incompetent to be the guardian of her son, Tharun. 4.Sub-sections 2 and 3 of Section 4 of the G & W Act say that unless there is something repugnant in the subject or context, “Guardian” means a person having the care of the person of a minor or of his property or of both his person and property and “Ward” means a minor for whose person or property or both, there is a guardian. The power of the Court under Section 7 of the G & W Act includes the power to appoint a guardian for the person or property of the minor or for declaring a person to be such a guardian. The content of Sub-section 2 of Section 7 that an order under that Section shall imply the removal of any guardian who has not been appointed by Will or other instrument or appointed or declared MFA110/11 -: 6 :- by the court evidences that the provisions of G & W Act visualize 'a guardian' who has not been appointed by Will or other instrument or appointed or declared by the court. 5.While Section 28 deals with the powers of testamentary guardian and applies to cases where a guardian has been appointed by Will or other instrument, Section 29 operates when a person other than the Collector or a testamentary guardian is appointed or declared as a guardian. That limitation of the power of such a guardian of property of a ward in terms of Section 29 will stand confined to persons who are appointed or declared by the court to be guardians. Section 30 describes the consequences as to voidability of transfers made in contravention of Section 28 or Section 29. Therefore, Sections 28, 29 and 30 do not have any bearing on a guardian who is neither the Collector nor a testamentary guardian nor a person appointed or declared by the court to be the guardian of the property of a ward. MFA110/11 -: 7 :- Hence disposal of immovable property of a minor by such a guardian would not be affected by Section 30 of the G & W Act merely on the ground that previous permission of the Court was not obtained in terms of Section 29 of that Act. 6. The question then would be as to who could be treated as a guardian other than the Collector, testamentary guardian or a person appointed or declared to be the guardian by the court. Reverting to Section 4(2), a person having the care of the person of a minor or his property or of both his person and property is a guardian. Precedents would show that biological parents have always been recognised as the natural guardians. The concept 'legal guardian' is understood even in terms of some of the statutes as to include the empowerment of persons other than the biological parents as the guardians, obviously, coupled with the corresponding duty to care, protect etc. Juristic persons have also been held to fall within the term 'guardian' as MFA110/11 -: 8 :- defined in Section 4(2) of the G & W Act. All these materials will show that there is a class of persons identifiable as guardians not falling within sections 28, 29 & 30 of the G & W Act. Thus, put in a straight-jacket formula, a person fitting the definition of guardian under Section 4(2) of G & W Act and not being the Collector or one appointed as guardian by Will or other instrument or one who is not declared by the Court to be guardian of the property of a ward, is not limited in power by the restriction contained in Section 29 of that Act. 7. Be that as it may, a guardian as noted above, claiming to be one so, is, in terms of Section 8 of the G & W Act, entitled to apply for an order under Section 7 of that Act declaring him to be appointed as the guardian of the minor's person or property or both. On an order being made granting such an application and declaring a person to be the guardian of the property of a minor, he becomes a person declared by the Court MFA110/11 -: 9 :- to be guardian of the property of a ward for the purpose of Section 29 of the G & W Act and his powers get restricted by the limitation thereto, in terms of Section 29. 8. A person; not being a Collector or a testamentary guardian or other person so appointed or declared by the Court to be guardian of the person or property of a ward, or both; but has the care of the person of a minor or of his property or of both his person and property, that guardian, like a Collector or testamentary guardian or other person so appointed, stands in a fiduciary relation to his ward and is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires. He has title to custody of the ward as enjoined by Section 25 of the G & W Act. He is also such guardian of the property of the ward and is bound to deal therewith carefully as a man of ordinary prudence would deal with it, if it MFA110/11 -: 10 :- were his own. He may do all acts which are reasonable and proper for the realisation, protection and benefit of the property, subject to the provisions in Chapter III of the G & W Act. This is the net effect of sub-sections 2 and 3 of Section 4 and of Sections 20, 24, 25 and 27 of that Act. 9. In the case in hand, the appellant who applied before the court below, is the biological mother of the minor Tharun. Uncontroverted is the fact that she has the care of the person and property of that ward. Tharun's father not being alive, Section 19(b) of the G & W Act, which applies to appointment, or declaration as to guardian, does not apply. Considering matters in terms of Section 17 of the G & W Act, consistent with the law to which minor Tharun is subject, it appears in the circumstances to be for the welfare of that minor, to declare that his mother is his guardian. This is so, having particular regard having had to the fact that the appellant is the MFA110/11 -: 11 :- minor's mother; she brought him up from infancy, following the demise of Tharun's father and had been showing the care of the person and property of that minor. 10. Section 31 of the G & W Act gives, among other things, the yardsticks that have to guide the court in permitting transfers under Section 29. Those guidelines run along with the primary principle of the authority of the court acting as parens patrea which is recognised as part of the sovereign power. The court granting permission for transfers under Section 29 of the G & W Act would have to be first satisfied as to the necessity for such an order or that the transfer would be for an evident advantage to the ward. The necessity or advantage that the court finds has to reflect in the order. The court is authorised to attach to the permission, in its discretion, any condition, including those enumerated in different clauses of sub-section 3 of Section 31. The court can also have a pre- MFA110/11 -: 12 :- decisional hearing of any relative or friend of the ward who should, in the opinion of the court, be heard in the matter. 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 wellbeing 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 Section 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 MFA110/11 -: 13 :- 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 Section 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 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 Section 29, in the case of the parent who is the guardian, would arise in terms of the provisions of the G & MFA110/11 -: 14 :- 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 bonafide, and that the transaction entered into before that application was not only bonafide 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 MFA110/11 -: 15 :- up to an adult is only a matter of which the mother would be concerned. Therefore, when the mother 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 bonafides. 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. MFA110/11 -: 16 :- 12.In the result, i.The appeal is allowed. ii.The impugned order is set aside. iii.The petition under Section 7 of the G & W Act is allowed and the appellant is declared as the guardian of the minor Tharun who is more elaborately described in the O.P. from which this appeal arose. iv.I.A.1737/08 is allowed ratifying the sale. v.No costs. Thottathil B.Radhakrishnan, Judge. K.Surendra Mohan, Judge. Sha.