IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 MFA.No. 133 of 2009() --------------------- GOP.1594/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT(S): PETITIONER ------------------------ 1. KRISHNAKUMAR, AGED 41 YEARS, S/O. BALAKRISHNA PILLAI, BHARAHTHI NILAYAM, AIMURY KARA, PISHARICKAL, ELEMBAKAPILLY.P.O., KOOVAPPADY VILLAGE. 2. BINDHU KRISHNA KUMAR, AGED 32 YEARS, W/O. KIRISHNAKUMAR, BHARATHI NILAYAM, AIMURY KARA PISHARICKAL, ELAMBAKAPILLY.P.O., KOOVAPPADY VILLAGE. BY ADV. SRI.K.SUNILKUMAR SMT.V.K.SREENA RESPONDENT(S): --------------- NIL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 22/06/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 133 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2009 JUDGMENT Joseph Francis, J. This appeal under Section 47 of the Guardian and Wards Act is filed by the petitioners in G.O.P. No. 1594 of 2008 on the file of the VIth Additional District Court, Ernakulam. That is a petition filed by the parents of minors, Athira Krishnakumar and Anjali Krishnakumar, under Sections 8 and 10 of the Guardian and Wards Act. 2. The first appellant is the father and the second appellant is the mother of minors Athira Krishnakumar and Anjali Krishnakumar, who were born on 5.9.2001 and 9.3.2003 respectively. Both the minors are residing in the care and custody of the appellants. Property having an extent of 2 ares and 84 square meters, corresponding to 7 cents, in Resurvey M.F.A.No. 133 of 2009 2 No.287/16/2 in Block No.IX along with building bearing No.X/330 belongs to minors and the first appellant jointly as per Sale Deed No.5085/2004. Minors together have got 2/3 right over the property. Appellants have no adverse interest against the minors. 3. The first appellant, their father, is a fit person to be appointed as the guardian of the person and property of the minors and he is ready and willing to act as such. The first appellant has 1/3 right over the petition schedule property. He is ready to sell his share over the petition schedule property as he is in need of money. It is impossible for him to sell his share alone. Therefore, he wants to sell the minors' share also and ready to deposit their share in fixed deposit in any Nationalised Bank. Therefore they sought permission to sell the property. 4. In the Additional District Court, the first petitioner was examined as PW1 and Exts.A1 to A4 were marked. The learned Additional District Judge, on considering the matter, allowed the Original Petition in part and the first petitioner was appointed as M.F.A.No. 133 of 2009 3 guardian of the person and property of minors Anjali Krishnakumar and Athira Krishnakumar. But the prayer for permission to sell the property was rejected on the ground that the proposed sale is not for the necessity of the minors and not advantageous to the interest of the minors. Against the rejection of that prayer, the petitioners filed this appeal. 5. Heard the learned counsel for the appellants and perused the records. 6. The learned counsel for the appellants submitted that the appellants have filed a petition as I.A.No. 1418 of 2009 to amend the Original Petition by incorporating a new paragraph in the Original Petition to the effect that “the first petitioner is a business man, he incurred debt in connection with his business, that he spent money for the treatment of his family members and the first petitioner is in debt trap. The share of the first petitioner in the petition schedule property is sufficient to discharge his debt and he is ready to deposit the share of the minors in a Nationalised bank. Once the first M.F.A.No. 133 of 2009 4 petitioner is relieved from the financial obligations, he can devote more care and attention towards the welfare of the minors and thus the sale of the petition schedule property is for the necessity or for the evident advantage of the minors”. Since the amendment sought for is necessary for the purpose of clarifying the need of the petitioners to sell the petition schedule property, that petition is allowed. Therefore, at present there is sufficient pleadings in the Original Petition that the purpose of the sale is for necessity or for the evident advantage of the minors. 7. Ext.A1 is the birth certificate showing that the date of birth of minor Athira Krishnakumar is 5.9.2001. Ext.A2 is the birth certificate showing that the date of birth of Anjali Krishnakumar is 9.3.2003. Ext.A3 is the Sale Deed No.5085/04 dated 18.9.2004, by which the first petitioner purchased the petition schedule property having an extent of 7 cents in the name of the first petitioner and his minor children. The total sale consideration shown in that document is Rs.35,000/- Ext.A4 is the agreement for sale executed between the M.F.A.No. 133 of 2009 5 first petitioner and one Radhakrishnan Nair, by which the first petitioner agreed to sell the petition schedule property for a sale consideration of Rs.2,45,000/- 8. The learned counsel for the appellants submitted that the appellants are prepared to deposit Rs.81,666/- each in the name of the minors in fixed deposit, which is the share of sale consideration due to them. In the decision reported in Re Tomy George (1995 (1) KLT 141) it was held that: “8. We must bear in mind that it is the natural guardian of the minor who applied for permission for selling the minor's property. It should not be forgotten that the custody of the minor also is with him and that the minor is about 17 years old and till now petitioners have been managing the affairs of the minor. She was given education, food and clothing. Nothing is brought out or even suggested that the petitioners have any adverse interest or any other motive in selling the property of the minor. The property sought to be alienated itself was M.F.A.No. 133 of 2009 6 assigned by the father in favour of the minor. The court need not approach the request for permission with a penumbra of suspicion when the natural guardian of a minor applies for permission to sell property which belongs to the minor. When an application is filed by the natural guardian and when it is found that he has genuine interest in the welfare of his minor daughter, the statement of such guardian can, normally, be believed and the proposal for sale can be presumed to be for the advantage and benefit of the minor. However, conditions can be imposed by the court while granting permission. xx xx 11. S.31 of the Act stipulates that permission cannot be granted except in a case of necessity or of evident advantage of the ward. The expression 'evident advantage' does not warrant a negative or narrow meaning. The test should be in approach of prudent man to the problem. If this test is applied, we feel that the court below was not justified in insisting that permission could be granted only when the parents find out another M.F.A.No. 133 of 2009 7 property for purchase. The interest of the minor will not be jeopardised as the petitioners have offered to deposit the sale proceeds in court or in the manner directed by the court. The courts should not take a rigid view in the matter. The court, after granting permission, could have seen that the money is utilised profitably or to the advantage of the minor by acquisition of any alternate property.” 9. In the present case, the first petitioner is the father and natural guardian of the minors. The second petitioner is the mother of the minors and she has no objection in allowing the petition. From Ext.A3 Sale Deed, it is evident that the first petitioner purchased the petition schedule property by spending his own money and that the first petitioner has 1/3 share and the minors together have 2/3 share. Since the first petitioner is in debt trap, selling his share over the petition schedule property is absolutely necessary as he has no other source to discharge his liability. If the 1/3 share of the first petitioner M.F.A.No. 133 of 2009 8 alone is sold to a third party, it will adversely affect the interests of the minors as the extent of the property is only 7 cents. There is no evidence to show that any income is derivable from the petition schedule property. Therefore, selling the shares over the minors in the petition schedule property and depositing the sale consideration due to the minors in fixed deposit will be beneficial to the interest of the minors and as that amount will fetch reasonable interest. In the above circumstances, we are of the view that the Additional District Judge ought to have granted permission to the petitioners to sell the share of the minors over the petition schedule property. 10. Accordingly, this appeal is allowed and the order in G.O.P. 1594 of 2008 on the file of the VIth Additional District Court, Ernakulam rejecting permission to sell the petition schedule property is set aside. That Original Petition is allowed and the first petitioner is permitted to sell the share of the minors over the petition schedule property. The first petitioner is directed to execute the Sale Deed within three months from this date. The first petitioner is also directed M.F.A.No. 133 of 2009 9 to deposit Rs.81,666/- each in the name of the minors in fixed deposit in any Nationalised Bank till the minors attain majority and produce the fixed deposit receipt before the Additional District Court, Ernakulam, within two weeks after executing the Sale Deed. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm