IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 WP(C).No. 4977 of 2007(P) ------------------------- OS.100/2002 of SUB COURT, PATHANAMTHITTA .................... PETITIONER(S): --------------- 1. SHYLA, W/O. LATE SAINIUDEEN, LAILA MANDIRAM, KARUVATTA MURI, ADOOR VILLAGE, ADOOR TALUK. 2. HASHIM (MINOR), S/O. LATE SAINUDEEN, LAILA MANDIRAM, -DO- -DO-. 3. HARIS (MINOR), S/O. LATE SAINUDEEN, LAILA MANDIRAM, -DO- -DO-. (MINOR PETITIONERS 2 AND 3 ARE REPRESENTED BY THEIR NEXT FRIEND AND MOTHER, 1ST PETITIONER). BY ADV. SRI.RASHEED C.NOORANAD SRI.G.GOPAKUMAR (CHERTHALA) RESPONDENT(S): --------------- PUSHPAKUMAR N., THIRUVATHIRA VEEDU, KILIVAYAL MURI, ERATTU VILLAGE, ADOOR. ADV. SRI.SIBY MATHEW FOR R1 SRI.A.A.MOHAMMED NAZIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: 1. EXT.P1 : TRUE COPY OF THE AMENDED PLAINT DATED 16.8.06. 2. EXT.P2 : TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DTD.3.8.06. 3. EXT.P3 : TRUE COPY OF THE PETITION DTD.3.8.06. 4. EXT.P4 : TRUE COPY OF THE OBJECTION DTD.21.8.06. 5. EXT.P5 : TRUE COPY OF THE ORDER OF THE LEARNED SUB JUDGE'S DTD. 26.8.06. RESPONDENT'S EXHIBITS NIL //TRUE COPY// P.A TO JUDGE S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.(C) No.4977 OF 2007 -------------------------------- Dated this the 7th day of April 2010 JUDGMENT Writ petition is filed by the additional defendants 2 to 5 in O.S No.100 of 2002 pending on the file of Sub Court, Pathanamthitta. Suit is one for money instituted by the respondents. Suit claim was based on a cheque purported to have been issued by the husband of the additional 2nd defendant and father of the other defendants. Pending suit, the maker of the cheque who alone was the sole defendant in the suit passed away and his legal representatives, the additional defendants, were brought in as parties to the suit. Admittedly the property scheduled in the plaint which is stated to have been brought in by amendment later was attached to secure the plaint claim alleging that it belonged to the deceased defendant. Additional second defendant, the mother was appointed as guardian of the minor defendants, her children, brought in as 2nd and 3rd defendants in the suit. She moved an application for removing her from their guardianship contending that she had conflict of interest with that of the children in respect of the disputes arising for adjudication in the suit. Her husband, father of the children, had executed a gift deed in respect of the plaint property in favour of one of the minor children and he had no subsisting right over that property W.P.(C) No.4977 OF 2007 Page numbers when it was attached by orders of the court was her case. She had a further case that her husband was only a name lender in the sale deed relating to plaint property and the funds for purchase were actually provided by her father. The application to remove her from the guardianship of the minor children was objected to by the plaintiffs in the suit. The learned Munsiff after considering the petition with reference to the objections, and hearing the counsel on both sides, dismissed the application vide Ext.P5 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned Sub Judge has taken note that the request for removal from the guardianship of the minor children was moved by the mother, the additional 2nd defendant (1st revision petitioner ) only after filing of a written statement in the suit resisting the suit claim of the respondent. It was also noticed that the attachment made over the property which had been later brought in by way of an amendment as plaint schedule property seeking a charge over such property is still subsisting. There is no adjudication of the title or interest over the plaint property in the suit which has been instituted only for recovery of money based on a cheque was also W.P.(C) No.4977 OF 2007 Page numbers taken into account by the court to dismiss the application moved by the mother to remove her from the guardianship of her children. The guardian appointed happens to be the mother of the children and their father is no more. She has sought for her removal from guardianship stating that she has conflict of interest with the minors in the suit. The court is not expected to accede to such request especially when no adjudication with the title, right or interest of the property scheduled in the plaint was involved in the suit. There is no merit in the writ petition, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv