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2009 DIGILAW 114 (KER)

Jancy Rajan v. Nill

2009-02-09

P.R.RAMAN, P.S.GOPINATHAN

body2009
Judgment :- Gopinathan, J. 1. The appellant is the petitioner in G.O.P. No.1256 of 2006 on the file of the VIth Addl.District Judge, Ernakulam. She was married to Sri.P.S.Rajan, who expired on 23-2- 1995. The petition schedule property was acquired by late Rajan as per Ext.A4. Matrimony blessed the appellant with two children. Noble P.Rajan is the youngest. He was born on 11-6-1992. On the death of the husband of the appellant, the petition schedule property devolved upon the appellant and her two children. The youngest one (minor) is studying in Xth standard. According to the appellant, she is finding it difficult to meet the educational expenses of her minor son with her own income. So, she thought of selling the petition schedule property for which she had found out a prospective vendor and Ext.A3 agreement for sale was entered into. The petition schedule property measures 7.2 cents with a house therein. The value of the land was agreed at Rs.1,00,000/-per cent and value of the building at Rs.3,00,000/-. Seeking an order to appoint her as the guardian of the minor and to permit her to alienate the property, the appellant filed the above petition before the lower court. 2. There is no respondent in the petition. Nobody objected the petition, though due notice was published. 3. The appellant was examined as P.W.1 and Exts.A1 to A5 were marked. 4. During the pendency of the petition, the appellant filed an affidavit stating that she is prepared to deposit Rupees six lakhs in the name of the minor. The lower court, on an appraisal of the evidence on record, arrived a conclusion that the appellant has not mentioned the real value for which she intended to sell the property. Such a conclusion was seen arrived at on a presumption that, usual practice is that, an agreement for sale will be produced before the court showing a far lesser price than the real price. In arriving such a conclusion, the lower court has relied upon the averments in the affidavit that she was prepared to deposit Rupees six lakhs in the name of the minor and that if the actual sale was for Rs.10 lakhs, the share of the minor would be much lesser. Consequently, though the appellant was appointed as the guardian of the minor, her prayer for permission to sell the property was rejected. Consequently, though the appellant was appointed as the guardian of the minor, her prayer for permission to sell the property was rejected. Assailing the said order, this appeal was preferred. 5. Having heard the learned counsel for the appellant, who had taken us through the pleadings and the evidence, we find that to arrive at a conclusion that the appellant had not shown the real value in Ext.A3, we had to read in between the lines. Such a conclusion is nothing but a guess work. On the same time, the lower court omitted to note the fact that, in between the mother and the minor son, there may not be an arithmetic precision while disposing a property belonging to the mother and the minor. It is evident from the impugned judgment that since the minor is studying in Xth standard, no much money is required at present for his education purpose. But more money may be required in furture. Probably, on the anxiety of getting an order, the appellant might have offered before the court that she is prepared to deposit Rupees six lakhs in the name of the minor. That amount may be inclusive of the share of the appellant, sometimes, even that of the brother of the minor. There is nothing on record to show that the appellant has got any adverse interest against the minor or that the property was intended to be sold for any higher amount or for any other purpose or that the appellant has got any other source to meet the educational requirements of the minor. It is also pertinent to note that, even if the appellant deposited the amount more than that is actually due, she could seek permission of the court to withdraw the amount, as and when much amount is required. The lower court lost sight of all these circumstances and declined permission to sell the property, that too, on some guess work, which is contrary to the evidence on record. 6. In the above circumstances, we find that the lower court went wrong in declining the prayer to alienate the property. The lower court lost sight of all these circumstances and declined permission to sell the property, that too, on some guess work, which is contrary to the evidence on record. 6. In the above circumstances, we find that the lower court went wrong in declining the prayer to alienate the property. Consequently, the appeal is allowed and there would be an order allowing the appellant to sell the petition schedule property on condition that she should deposit a sum of Rupees six lakhs in a Nationalised Bank and produce the fixed deposit receipt before the lower court within seven days after the execution of the sale deed. There will be no order as to costs.