IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 MFA.No. 110 of 2010() --------------------- OPGW.77/2009 of DISTRICT COURT, THALASSERY .................... APPELLANT: PETITIONER ------------------------ MALIKKANTAKATH PARAKKOT MAIMOONATH, AGED 29 YEARS, W/O.ABDULKHADER, PARIYARAM AMSOM, MUKKUNNU DESOM, TALIPARAMBA TALUK, KANNUR DIST. BY ADV. SRI.BLAZE K.JOSE RESPONDENTS: --------------- 1. KOMMACHI AIKYATH MOIDEEN HAJI, AGED 70 YEARS, S/O.MAMMU HAJI, PARIYARAM AMSOM, MUKKUNNU DESOM, TALIPARAMBA TALUK, KANNUR DIST, PIN-670 502 2. MALIKKANTAKATH PARAKKOT AYISHA,AGED 36 YEARS, D/O.KOMMACHI AIKYATH MOIDEEN HAJI, KUPPAM PO, TALIPARAMBA TALUK, KANNUR DIST, 670 144. 3. MALIKKANTAKATH PARAKKOT THAHIRA, AGED 32 YEARS, D/O.KOMMACHI AIKYATH MOIDEEN HAJI -DO- -DO- PIN 670 144 , 4. KOMMACHI ABDULKHADER, AGED 36 YEARS, S/O.KEERANTAKATH HAMZA, ANDENKULAM, PARIYARAM AMSOM, DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT PIN-670 502. 5. MALIKANTAKATH PARAKKOT MUHAMMED ASHRAF, AGED 33 YEARS, S/O.KOMMACHI AIKYATH MOIDEEN HAJI, PARIYARAM AMSOM,MUKKUNNU DESOM,TALIPARAMBA TALUK, KANNUR DISTRICT , PIN-670 502. 6. MALIKANTAKATH PARAKKOT ABOOBACKER SIDDIQUE, AGED 34 YEARS, S/O.KOMMACHI AIKYATH MOIDEEN HAJI, -DO- -DO- ADV. SRI.T.T.RAKESH FOR R 1 TO 6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. (G & W) No. 110 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2011 JUDGMENT Joseph J., The appellant challenges the order passed by the learned District Judge, Thalasserry in O.P. (G&W) No.77 of 2009. 2. Briefly put the case of the appellant, before the Court below as the petitioner is as follows. The appellant is the mother of minor Fathimath Rizwana M.P., female child born on 27.4.1999. Her father divorced the petitioner by pronouncing Talak. The minor was totally neglected by him and thereby she was under the care and custody of the appellant, her mother. The first respondent is the father of the appellant, respondent 2 and 3 are sisters of the appellant. Respondents 5 and 6 are the brothers of the appellant. Fourth respondent is the appellant's second husband. 3. Petition A schedule property belonged to the first M.F.A. (G & W) No. 110 of 2010 :2: respondent. He executed Dhananischayadharam Deed No.1042 of 1993 of S.R.O. Thaliparamba in respect of the appellant and respondents 2 and 3. Respondents 5 and 6 were given the right to reside in the house situated in the petition schedule property. Hence they are also made parties to the petition. Respondents 2 and 3 gifted their 1/6 share in petition A schedule property in favour of the appellant and 3/6 share in favour of the minor child as per gift Deed No.3743 of 2006 of S.R.O. Thaliparamba. Thus the appellant and minor have given ½ equal rights in the property. 4. The petition B Schedule property were assigned in favour of the appellant, minor and the fourth respondent, as per Assignment Deed No. 4580 of 2008 of S.R.O. Thaliparamba. As per the document, the appellant and minor were entitled for ¼ share each in property and 2/4 share belongs to the fourth respondent. Property are not fertile and they are meager. The appellant has shares in petition A and B schedule properties. To raise funds for the construction of a new house for the residence of herself, fourth respondent and minor, the house situated in the petition A schedule M.F.A. (G & W) No. 110 of 2010 :3: property is not having sufficient convenience. The fourth respondent is intending to sell his share in petition B schedule property. On 3.3.2009 a person approached the appellant and fourth respondent for purchase of the petition schedule propertiy and offered Rs.1 lakh for the petition A schedule property and Rs.1 lakh fifteen thousand for the B schedule property. According to the appellant, the consideration offered is the best available market value for the property. The appellant was ready and willing to deposit the sale consideration due to the minor in a fixed deposit account in any of the Nationalised bank till her attaining majority. As the minor's father has neglected her and divorced the appellant, the appellant being her mother is the apt person to be appointed as the guardian of the person. 5. The respondents filed vakalath and counter stating that that they have no objection in appointing the petitioner as the guardian of the minor. The appellant filed affidavit stating that she has no interest and third party affidavit in that respect also was filed. Declaration as provided under Section 10(3) of the Guardians and M.F.A. (G & W) No. 110 of 2010 :4: Wards Act was filed in respect of the appellant. Paper publication and affixture of notices in respect of the filing of the petition were also done. The appellant filed proof affidavit in lieu of chief examination. The learned District Judge after consideration of the matter has found that the intended sale of petition A schedule property and residential building in which the minor has one half share cannot be found as beneficial to her interest and intended to protect her welfare. As far as B schedule property is concerned it has an extent of 11.56 cents and major share of the property is with the appellant and fourth respondent. If they sell their ¾ share in the property the exclusion of the minor ¼ share from alienation will be detrimental to her interest. So the intended sale of B schedule property was found as beneficial to the minor and the appellant was allowed to alienate the minor ¼ share in the B schedule property. The appellant was also appointed as the guardian of the person and the property of the minor. The appellant was also allowed to dispose the minor's ¼ share in B schedule property for a consideration of Rs.1,15,000/-, which amount was directed to be M.F.A. (G & W) No. 110 of 2010 :5: deposited in a fixed deposit in any of the nationalised bank within 30 days from the date of sale. Being aggrieved by this order, the appellant filed this appeal. 6. We heard the Shri. Blaze K Jose, learned counsel appearing for the appellant and Shri K Ratheesh, learned counsel appearing for respondents. 7. Learned counsel for respondents has no objection in grant of relief. 8. Learned counsel for the appellant points out that the Court below has erred in not permitting the appellant to sell ½ shares in the A schedule property. He prays that actually the appellant may be permitted to sell 1/2 right of the minor in A schedule property and to put up the residential building in B schedule property. The original issues put forward to the Court below was that the appellant may be permitted to sell A and B schedule properties for the purpose of constructing building in another property with the funds generated from the sale of A and B schedule properties. Learned counsel further points out that putting up a residential M.F.A. (G & W) No. 110 of 2010 :6: building in A schedule property, is inconvenient. He would point out that there is no proper access to A schedule property. He referred to the contents of the documents relating to A schedule property. 9. The sale of the property of a minor can be legally premised only on the basis that it is for the benefit of the minor. The minor has ½ share in the A schedule property. The Petition A schedule property consists of 14 cents and a building, which is stated to be in a dilapidated condition. There is no material on record as to what will be the source of funds for the appellant and the fourth appellant to put up a residential building, whether it is in another property or in B schedule property. There is, in fact, no prayer as to permit the appellant to put up the residential building in B schedule property and the prayer was to permit the sale of the minor's share in both properties for putting up building in yet another property. The learned counsel for the appellant is not able to point out from the proof affidavit as to any material which would disclose the actual lie of the properties and the question of the access being M.F.A. (G & W) No. 110 of 2010 :7: limited or restricted. Evidence in this regard is necessary. The Court below has found that as the appellant has ½ right of the A schedule property and the building and the extent of property is 14 cents the minor can very well have partition and seperate possession of her one half right in the property thereby even if the petitioner alienates her one half right therein it will not affect the minor's right or possession over the property. In fact the total amount required for putting up the building is a crucial input which is missing. We also further take note of lack of evidence as to the nature of dilapidated condition of the residential building in A schedule property and whether it is really necessary to construct a building as claimed by the appellant. 10. Having considered all these circumstances, we think that the matter requires to be remanded and accordingly we set aside the order and remand the matter back to the Court below so that the appellant may adduce further evidence in the matter. It is also open to the appellant to seek amendment of the petition, if she is so advised. M.F.A. (G & W) No. 110 of 2010 :8: 11. In the circumstances of the case, we direct that the Trial Court shall dispose of the matter on or before 30.6.2011. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/