IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 6884 of 2009(O) ------------------------- AGAINST THE ORDER DATED 27.11.2008 IN IA NO.1110/2008 & IA NO.1139/2008 IN OP(G&W).11/2004 of DISTRICT COURT, ALAPPUZHA .................... PETITIONER(S): ORIGINAL PETITIONER ---------------------------------------------------- BEENA SATHEESAN, W/O. LATE SATHEESAN, BUSINESS WOMAN, RESIDING AT KRISHNA NIVAS, POWER HOUSE WARD, SOUTH ARYAD MURI, MULLACKAL VILLAGE, ALAPPUZHA. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): CR. PETITIONER ------------------------------------------- 1. THE PRINCIPAL DISTRICT COURT, ALAPPUZHA. ADDITIONAL R2: 2. MEETHU, KRISHNA NIVAS, POWER HOUSE WARD SOUTH ARYAD MURI MULLACKAL VILLAGE, ALAPPUZHA. IMPLEADED AS PER THE ORDER IN IA NO.3599 OF 2009 DATED 30.3.2009 ADV. SRI.JAWAHAR JOSE FOR ADDL.R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 6884/2009 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE O.P.(G&W) ACT 11 OF 2004 BEFORE THE HON'BLE DISTRICT COURT, ALAPPUZHA. EXT.P2: COPY OF IA NO.103/04 IN THE ABOVE OP EXT.P3: COPY OF ORDER DATED 1.10.2004 OF THE DISTRICT COURT, ALAPPUZHA. EXT.P4: COPY OF ORDER DATED 27.11.2008 IN IA NO.1110/08 AND 1139/08. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. ------------------------------------ W.P.(C).No.6884 of 2009 ------------------------------------ Dated this the 30th day of March, 2009 JUDGMENT As per the order dated 27.11.2008 in O.P. (G & W) No.11 of 2004, on the file of the court of the District Judge, Alappuzha, the petitioner was appointed as the guardian of the person and property of her two minor children Neethu and Athul. Now, Neethu has attained majority. She is impleaded as the second respondent in this Writ Petition. 2. Permission was sought for before the court below to mortgage the property belonging to the minors for raising a loan from the Bank. That application was made in the year 2004. The requirement at that time was for a sum of Rs.2 lakhs. The court below directed security to be furnished. The petitioner could not comply with the terms. Therefore, she could not mortgage the property. Later, Neethu became a major. It is stated that for the purpose of modernising the bakery run in the property, it is necessary to mortgage the property and raise funds from the Bank. I.A.No.1110 of 2008 was filed by the petitioner praying for reducing the security to be furnished since one of the children has attained majority. The court below accepted the contentions put forward by the petitioner and WPC No. 6884/2009 2 granted the prayer. However, it was held that on behalf of the minor, the petitioner can create mortgage in respect of the property for the purpose of securing only a sum of Rs.2 lakhs. The petitioner is aggrieved by this condition stipulated in the order by which a ceiling is put on the loan to be raised by mortgaging the property. It is true that at the time when the guardian O.P. was filed in 2003, it was stated in paragraph 7 of the O.P. that for developing the bakery business, it was necessary to raise funds and the Bank had agreed to sanction a loan of Rs.2 lakhs. But, now by the passage of time, I am of the view that the court below was not justified in limiting the loan amount to Rs.2 lakhs, only based on the averment made in the guardian O.P. in 2003. Taking into account the value of the property, the expenses to be incurred for modernising the bakery business and all other changed circumstances, I am of the view that the court below was not justified in limiting the amount of Rs.2 lakhs. Of course, the court is entitled to, rather bound to, protect the interests of the minor and in that process it can limit the amount of money that can be borrowed by mortgaging the property belonging to the minor. 3. In the facts and circumstances, I am of the view that a fresh look is necessary into the matter. The order passed by the court below is set aside. The petitioner shall produce all the relevant WPC No. 6884/2009 3 documents relating to the proposal for modernising the bakery, the loan amount sought to be sanctioned, the details regarding the repayment etc. The court below shall consider the same and pass appropriate orders permitting the petitioner to mortgage the property for such amount as the court thinks fit. Taking into account the urgency of the situation and interests of the minor, a final decision shall be taken or before 30.6.2009. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl