IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 MFA.No. 209 of 2009() --------------------- GOP.206/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANTS: PETITIONERS ------------------------- 1. BEEVI SUHARA, AGED 48 YEARS, W/O.LATE N.S.MOIDHEENKUTTY, CHOOLAKKAPARAMBIL HOUSE, 4/410, SUROOR MANZIL, VALLAM, OKKAL P.O. 2. BEJNA SAFERA, AGED 23 YEARS, D/O.LATE N.S.MOIDHEENKUTTY, CHOOLAKKAPARAMBIL HOUSE, 4/410, SUROOR MANZIL, VALLAM, OKKAL P.O. 3. SYED SUROOR, AGED 19 YEARS, S/O.LATE N.S.MOIDHEENKUTTY, CHOOLAKKAPARAMBIL HOUSE, 4/410, SUROOR MANZIL, VALLOM, OKKAL P.O. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S): RESPONDENT ------------------------- NIL. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON 28/08/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M..F.A.(G & W) No. 209 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of August, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioners in G.O.P.No. 206 of 2008 on the file of the VIth Additional District (Wakf) Court, Ernakulam. That petition was filed under Sections 7 and 10 of the Guardian and Wards Act for getting permission for the first petitioner to sell the share of the minor, Mohammed Zafran, over the petition schedule property. 2. The first appellant is the mother and late Moidheenkutty is the father of minor, Mohammed Zafran. Appellants 2 and 3 are the children of the first appellant and sister and brother of the minor. Moidheenkutty died on 22.8.1998. Mohammed Zafran and appellants 2 and 3 M..F.A.(G & W) No. 209 of 2009 2 are the only children of the first appellant and late Moidheenkutty. Mohammed Zafran was born on 14.7.1994 and he is now studying in VIIIth standard. The first appellant and her deceased husband purchased 8 cents of property in Sy.No. 479/9B and 478/9A of Perumbavoor Village along with an old building as per Sale Deed No.3022/88. After the death of her husband, his share in the property devolved upon the minor children and the first appellant. As per law, the first appellant is entitled to 1/8th share and minor is entitled to get 2/5 share, i.e. 1.400 cents. The second appellant is entitled to get 1/5 share, i.e. 0.700 cents and third appellant is entitled to get 2/5 share, i.e. 1.400 cents from the half of the undivided share. Mohammed Zafran is under the care and protection of the first appellant, who is looking after his affairs and protecting his interests. 3. The first appellant and the minors are residing in the house in the above property. The said house is very old and in a dilapidated condition. Therefore, the appellants decided to purchase another property and constructed a building therein and M..F.A.(G & W) No. 209 of 2009 3 purchased 5 cents of property in Aluva West Village, as per Sale Deed No.548/1/2007 in the name of Mohammed Zafran and appellants 1 and 3 jointly. Now the first appellant need money for completing the construction and conducting the marriage of her daughter. She finds it difficult to raise the amount from other sources. Therefore, the appellants decided to sell the property to one Subair, S/o. Aliyar for a total consideration of Rs.20,000/- per cent and Rs.40,000/- for the building. The sale of the property is for the welfare of the minors. 4. In the Additional District Court, PW1 was examined and Exts.A1 to A4 were marked. The Additional District Judge, on considering the matter, dismissed that petition on the ground that there was no prayer to appoint the first petitioner as the guardian of the minor and the proposed sale consideration is not fair and reasonable. Against that order the petitioners filed this appeal. M..F.A.(G & W) No. 209 of 2009 4 5. Heard the learned counsel for the appellants. There is no respondent in this appeal. 6. There is a delay of 277 days in filing this appeal. The appellants filed C.M. Appln. No. 2332 of 2009 for condoning the delay in filing the appeal. In the affidavit filed in support of the petition, it is stated that after the dismissal of the G.O.P. the proposed vendee withdrew from the agreement to purchase the petition schedule property and thereafter the first appellant approached him and convinced him about the scope of the appeal and the proposed vendee agreed to purchase the petition schedule property and that is the reason for the delay in filing the appeal. Since the appellants have shown sufficient cause for the delay, C.M. Appln. No.2332 of 2009 is allowed and the delay is condoned. 7. The appellants have also filed I.A.No. 2351 of 2009 for amending the petition, incorporating the prayer to appoint the first appellant as the guardian of the minor, Mohammed Zafran. Since the appointment of the guardian is necessary for giving M..F.A.(G & W) No. 209 of 2009 5 sanction to sell the petition schedule property, that petition is also allowed. 8. The learned counsel for the appellants submitted that the petition schedule property is situated in a very remote area and therefore it will fetch only a market value of Rs.20,000/- per cent and Rs.40,000/- for the old building. The learned counsel for the appellants further submitted that the first appellant has genuine interest for the welfare of the minors, which is evident from the fact that after the death of the father 5 cents of property was purchased in the joint names of the minor, Mohammed Zafran, and appellants 1 and 3 by virtue of Ext.A2 Sale Deed No.5418/07 of S.R.O. Alwaye. 9. Since the first appellant is the mother of the minor, she is the most suitable person to be appointed as guardian of the minor and therefore she can be appointed as guardian of the minor. The minor has only 2/5 shares (1.400 cents) over the petition schedule property and the other sharers have intended to sell their share over the petition schedule property for the M..F.A.(G & W) No. 209 of 2009 6 purpose of completing the construction of the house in the property in which the minor has a share. We are of the view that the proposed sale is for the evident advantage and necessity of the minor's welfare. The appellants are prepared to deposit the share of sale consideration of the minor in fixed deposit in any nationalised bank. Therefore, we are of the view that the learned Additional District Judge is not justified in dismissing the petition. 10. Accordingly this appeal is allowed. The order dismissing G.O.P.No. 206 of 2008 on the file of the Additional District Court, Ernakulam is set aside and that petition is allowed and the first petitioner/first appellant is appointed as guardian of minor Mohammed Zafran. Permission is granted to the first appellant to sell the share of the minor over the petition schedule property. The appellants are permitted to sell the petition schedule property for a price not less than Rs.20,000/- per cent. The first appellant is directed to deposit the share of sale consideration due to the minor in fixed deposit in any M..F.A.(G & W) No. 209 of 2009 7 nationalised bank till the minor attains majority and produce the fixed deposit receipt within two months after executing the sale deed. The appellants are directed to execute the sale deed within four months from this date and produce copy of the sale deed before the Additional District Court, Ernakulam, within one month after executing the sale deed. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm