IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 8063 of 2011(G) ------------------------- PETITIONER(S): ----------------------- AMMAL KURIEN, AGED 57 YEARS, W/O.V.K.KURIEN, VELLIYOTTU HOUSE, KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.MARTIN G.THOTTAN SRI.P.NEELAKANTA PILLAI (HARIPAD) RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM. 695 001. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY, GOVT. OF INDIA, DEPARTMENT OF LAW AND COMPANY AFFAIRS, NEW DELHI. 3. DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA DISTRICT, ALAPPUZHA. ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R2 GOVT.PLEADER SMT.SANJEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.8063/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM THE CHRISTIAN MEDICAL COLLEGE, VELLOORE. EXT.P2: TRUE COPY OF THE SCHEDULE OF THE PROPERTY JOINTLY OWNED BY THE PETITIONER'S FAMILY IN EQUAL SHARES. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 8063 OF 2011 ===================== Dated this the 29th day of November, 2011 J U D G M E N T Petitioner is the wife of late Dr.V.K.Kurien, who expired on 31/10/2009. At present, petitioner is living with her two children namely Soumya Kurien, daughter and Sri.Koshy Kurien, son. From Ext.P1 certificate, it is seen that her son Sri.Koshy Kurien is a mentally retarded person. Petitioner and her children have inherited 3.97 ares of property comprised in Re.sy.Nos.672/3-10 and 672/18-2 of Karthikappally Village and the details of the property are given in Ext.P2. 2. In this writ petition, petitioner seeks an order declaring that she is the guardian of the personal property of her mentally retarded son Sri.Koshy Kurien and also seeks permission to sell the share of her son in the aforesaid property. 3. In view of the claim of the petitioner that her son is a mentally retarded person necessitating her appointment as his guardian, this court by oder dated 2/8/11 directed the 3rd respondent District Collector to make a report about the correctness of the assertions made by the petitioner. WPC No. 8063/11 :2 : 4. Learned Government Pleader has obtained instructions, which confirms that the son is a 22 year old youngster, who is a mentally retarded person and that he is incapable of managing himself. Therefore, the claim of the petitioner regarding the mental retardation of her son which is duly certified by Ext.P1 certificate issued from the Christian Medical College, Vellore stands confirmed by the 3rd respondent also. 5. Petitioner also submits that apart from the meager family pension that is being received, she and the members of the family including the unemployed daughter and the mentally retarded son have no other income to sustain themselves. It is also stated that her daughter is 26 years old and is of marriageable age and that for marriage expenses and for treatment of her son, she requires substantial amounts. It is stated that therefore she and her daughter have decided to sell 3.97 ares of property. 6. In this writ petition, apart from the declaration that she is the guardian of her mentally retarded son, she also seeks a WPC No. 8063/11 :3 : permission to sell the son's share in the property. 7. The power of this Court to appoint a guardian for a mentally retarded person has been considered by this Court with reference to the provisions of the Mental Health Act and also the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability, etc. in the decisions reported in Narayanankutty Menon v. State of Kerala (2009 (1) KLT 183) and Narayanankutty Menon v. State of Kerala (2009 (1) KLT 910). 8. In these judgments, this Court has held that exercising powers under Article 226, which is unlimited in nature, it is well within the power of this Court to appoint a person as guardian of a mentally retarded person. Thus, in the light of the legal position settled in the aforesaid two judgments and applying the same to the facts of this Case, I see no reason why the prayer of the petitioner to declare herself as the guardian of her son Sri.Koshy Kurien should not be granted. 9. Therefore, I direct that henceforth, the petitioner, the mother, shall be the guardian of her son Sri.Koshy Kurien and it WPC No. 8063/11 :4 : shall be the responsibility of the petitioner to look after the welfare of the mentally retarded son and also his property both movable and immovable. 10. As far as the necessity pointed out by the petitioner for the disposal of the property is concerned, I see no reason to doubt the bonafides of the petitioner. Petitioner has also undertaken before this Court that the share of her son's property will be kept in deposit in a Nationalised Bank and that the same will be utilized only for the treatment and other expenses of her son and I record the submission. 11. Subject to the said condition, petitioner is permitted to dispose of the share of her mentally retarded son Sri.Koshy Kurien in 3.97 ares of property mentioned above. Once in three months, the petitioner shall file report before the 3rd respondent, the District Collector concerning the amounts that are in the account of her son and also its utilisation. It is made clear that it shall be open to the District Collector to issue appropriate directions to the petitioner to ensure that the welfare of the son is duly taken care of. In the event it is necessary, it will also be open to the District WPC No. 8063/11 :5 : Collector to seek orders of this Court including for variation of the order appointing the petitioner as the guardian of her son. With the aforesaid directions, writ petition is disposed of. ANTONY DOMINIC, JUDGE Rp