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2010 DIGILAW 564 (KAR)

Kashibai v. Veerangouda

2010-04-20

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
Judgment :- 1. This appeal U/S 47(1) of Guardians & Wards Act, 1890 (for short “Act)is one, which richly deserves to be allowed for more than one reason. The appeal is by the maternal grandmother of minor child by name Gangana Gouda son of Rudra Gouda Mulkipatil, minor, resident of Annigeri, Navalgund Taluk, Dharwad district. 2. The appellant is aggrieved by the impugned order dated 12.08.2008 passed in G & W. No. 19/2006 on the file of Court of First Additional Civil judge (Sr. Dn.). Dharwad sitting at Navalgund allowing the petition filed by the respondents- paternal uncle of the minor child. 3. The petition had been filed U/s 7 & 10 of the Act, seeking to appoint the petitioner to be the guardian of not only the person of the minor child but also in respect of three parcels of agricultural lands, for managing the agricultural properties for the benefit of the minor child. 4. Description of the lands are as under: 1. Sy. No. 1172 measuring 20 acres 20 guntas 2. Sy. No. 1170/1 measuring 5 acres 20 guntas 3. Sy. No. 1168/1 measuring 8 acres Petitioner had filed the petition even during the life time of the parents of the minor child, impleading the father of the child, i.e., Rudragouda, as a respondent, with the plea that the father of the minor child was mentally not stable and addicted to sorts of bad vices; that he was not in a position to protect the interest of minor child and he was squandering properties of the minor. Therefore for better management of the property, the petition had been filed. 5. The petition itself was not in the proper format, it was not verified and attested in terms of Sec. 10 of the Act. 6. However if had been averred in the petition that the father of minor child is irrespective and wayward. The petition was not contested at all and obviously came to be allowed in terms of the following order. 12.08.2008 Sri N.B.S file Vakalath for respondent and no objections memo. Heard, petition is allowed. The petitioner is appointed as guardian of minor and also his property. But the applicant shall not have any rights to alienate or create charge, mortgage, etc of minor’s property without obtaining the necessary permission. Issue certificate Accordingly case is closed. 7. 12.08.2008 Sri N.B.S file Vakalath for respondent and no objections memo. Heard, petition is allowed. The petitioner is appointed as guardian of minor and also his property. But the applicant shall not have any rights to alienate or create charge, mortgage, etc of minor’s property without obtaining the necessary permission. Issue certificate Accordingly case is closed. 7. Being aggrieved by this order, the maternal grandmother of the minor child who was in fact looking after the welfare of the child and was educating him, has come up with this appeal. 8. It is the version of the appellant that the minor child was being looked after and was being taken care of by the grandmother (appellant) ever since the death of his mother in the year 2008; that the appellant is in fact looking after some parcels of agricultural land measuring an extent of 7 acres 21 guntas in Sy. No. 1168/3 and an extent of 9 acres 21in Sy. No. 999/1 of Annigere Village which admittedly are the properties of the minor. 9. The appellant who was taking care of the properties and also of the person of minor child has filed an independent petition u/S 7 and 10 of the Act seeking for appointing her as the guardian of not only of the person of the minor but also in respect of the properties which were in the possession of the minor’s uncle (the respondent in this appeal and the petitioner in G & W No.19/2006) in addition to the properties which were in her own possession, even during the pendency of the petitions filed by the appellant in G & WC No.13/06 and 12/09 which are still pending; that the respondent had surreptitiously without even putting the appellant on notice and without impleading the appellant in whose custody and care the child is being brought up, had managed to get the impugned order; that the impugned order is not sustainable in law and is to be set aside and the writ petitions are liable to be dismissed. 10. Notice had been issued to the respondents and uncle of the minor child and he is represented by counsel Sri K.S. Patil. Further developments that took place during the pendency of the petition before the trial court are: the mother of the minor expired on 06.11.2006 and the father expired on 18.04.2009. 10. Notice had been issued to the respondents and uncle of the minor child and he is represented by counsel Sri K.S. Patil. Further developments that took place during the pendency of the petition before the trial court are: the mother of the minor expired on 06.11.2006 and the father expired on 18.04.2009. It is for this reason while the appellant is taking care of the minor child and educating him, the uncle of the child continued to remain in possession of three parcels of agricultural lands which were even otherwise in his possession and enjoyment earlier. It is to displace the respondent from such a fiduciary position which he does not deserve to hold and contending that it is not in the interest of the minor child, the appellant had filed two petitions as aforestated. We find from the record that the impugned other, perse is not tenable in law not only for the reason that it was passed without notice to the appellant in whose care and custody the minor child is being brought up but also for the reason that the respondent who had sought for appointment as a guardian for the person of the minor had suppressed the fact that the child was under the care and custody of the appellant. It is therefore contended that the impugned order cannot be sustained. 11. It appear that while the petitions filed by the appellants seeking for appointing her to be the guardian of person of the minor child and also of the agricultural property of the minor child G & W No. 13/06 is still pending, there was yet another petition which had been filed during the vacation in respect of the movable properties, namely Maruti car, motorcycle and two other parcels of agricultural lands which actually belonged to the minor. It appears while the appellant has filed the appeal against the impugned order, she had also made an attempt to revive the petition in which the impugned order came to be passed and has in fact, sought for removal of respondent from being the guardian of properties of the minor in term of the impugned order interalia contending that in securing the impugned order, the respondent has not acted in a bonafide manner, and he is guilty of suppression of facts. 12. 12. It appears the respondent had also filed applications in the petition which had been disposed of earlier and now sought to be revived by the appellant as indicated above and also in pending petitions filed by the very appellant namely G&W No.13/06 and G&W No.12/09 seeking for stay of these proceedings before the Court of Civil Judge (Sr. Dn). Dharwad, during the pendency of this appeal before this court, such applicants having been dismissed, respondent has come up with three writ petitions namely W.P. No.67044/2009, 67045/2009 and 67046/2009 questioning the order 12.08.2008. these petitions are linked with this appeal. We having noticed that though the respondent in this appeal has in fact been appointed as the court guardian of three parcels of agricultural land under the impugned order dated 12.08.2008 and that no statement of accounts have been filed either before this court or before the trial Court, in fact, we express our great shock and surprise that the learned judge of the trail Court has not even imposed commensurate and necessary conditions on the court guardian not only to file periodical statement of accounts for the management of the properties but also to deposit the income from the properties. 13. In the absence of any such conditions the respondent appears to have taken full advantage of the same and has dealt with the properties in a casual manner. We having noticed such developments and had issued certain interim directions in this appeal as and when the matter, had come up for orders, in terms of order dated 22.03.2010, 30.03.2010, 31.03.2010 and yet again on 06.04.2010 reading as under: 22.03.2010 This Miscellaneous First Appeal filed under Section 47(1) of the Guardian and Wards Act, has come up before the Court for further orders on various deficiencies and inadequacies. 2. While Sri.S.L. Matti, learned counsel has appeared for the appellants in this appeal. Sri K.L. Patil, learned counsel has appeared for the 1st respondent. 3. This appeal is linked to W.P. 67044/2009.67045/2009 and 67046/2009, we notice from the records that the presentation of not only the appeal appears to be not proper, but so also the original petitions before the trail court. Therefore, it is necessary that the learned counsel for the parties look into this aspect of the matter and make proper submission before us and for such purpose we grant a week’s time. 4. Therefore, it is necessary that the learned counsel for the parties look into this aspect of the matter and make proper submission before us and for such purpose we grant a week’s time. 4. We also notice that the 1st respondent in MFA. 20254 of 2009, who has been appointed as the guardian of the properties of the minor in G & W. 19/2006 dated 12/08/2008, which order is challenged in this appeal, has not thereafter or earlier accounted the income from the properties of the minor, though admittedly the respondent has been in possession and cultivation of considerable extent of agricultural properties, which were in the name and owned by the minor, but possessed by the 1st respondent and it appears that he position is no different in respect of some other properties also owned by the minor, which are in the possession of the appellant and it is very necessary that all these persons, who are meddling with the properties of the minor child should render meticulous accounts of the income from the properties and as it has not been done so hitherto, we direct both the appellant and the 1st respondent to file before this Court a statement of accounts indicating the income from the properties of the minor in their possession and further direct both the appellant and the 1st respondent to deposit the amount, which is in their hands as of now immediately before this Court. 5. List on 30.3.2010, as requested by Sri.K.L. Patil learned counsel appearing for respondent no.1 30.03.2010 Notwithstanding the clear direction issued by this Court in terms of the order dated 22.03.2010 calling upon not only the Appellant’s grand mother in whose custody the minor is and who is also looking after some properties of the minor and the Respondent No.1 the uncle of the minor, appointed as guardian to take care of most of the properties of the minor child, were required of file statement of accounts. Sri. Jagadish Patil, learned Advocate for the Appellant seeks to file memo for production of document and not any statement and in any responsible way. The first respondent has not complied at all with this direction to any extent. Sri K.L. Patil learned counsel for the first Respondent on the other hand seeks three days time to file the statement. 2. Jagadish Patil, learned Advocate for the Appellant seeks to file memo for production of document and not any statement and in any responsible way. The first respondent has not complied at all with this direction to any extent. Sri K.L. Patil learned counsel for the first Respondent on the other hand seeks three days time to file the statement. 2. While the memo for production of documents which is in disorder is retained with the court records, the first respondent is required to file a proper statement explaining as to what are all the documents, in what context they are filed and what is the position of income and expenditure in respect of minor’s properties in their hands and also to indicate as to how long they are looking after the property of the minor which is in their possession and management, now. 3. The first respondent-Court appointed guardian who is otherwise also required to file statement has defaulted and has exposed himself to action that can be taken against him in accordance with law for such a failure. Matter is adjourned to 31.03.2010 to enable the first respondent to file his statement by 31.03.2010 failing which the matter will have to be viewed seriously. 31.03.2010 We had directed both the appellant as well as the respondents to file a proper statement of accounts in respect of the income earned from the properties of the minor, which are in the possession of the respective parties and more so the respondent-Veeranagouda not only being the court guardian of the minor’s property a parcel of agricultural land measuring about 34 acres located in his place, but also in the management and possession of this extent of agricultural land ever since the year 2006, if not earlier, after the demise of the mother of the minor boy. We, having noticed that the appellant, who is admittedly the grandmother of the minor boy was taking care of the education of the minor boy, while was in possession of other parcels of agricultural land measuring an extent of 18 acres at Annigeri village, belonging to the minor boy, while the respondent-Veerangouda-paternal uncle of the minor boy-on the other hand, is in possession of more than 35 acres of land in the very village and who is also the court-appointed guardian for managing the properties of the minor for the benefit of the minor as per the order passed by the court below, had never bothered to file any statement of accounts nor had rendered accounts any time and obviously had never deposited any income from the properties had directed the parties to file the statement of accounts. On our passing an order to file statements by today, the appellant has come up with a statement, inter alia to indicate that the appellant has incurred more expenditure than the possible income from 18 acres of land in her possession and cultivation and has made the minor boy a debtor. Obviously, there is no amount to be deposited on behalf of the minor boy by the appellant before this court. In so far as the respondent-Veernagouda is concerned, while a statement of accounts if filed, we are not satisfied with the particulars and details furnished in this statement, which is only to indicate that as of now, the respondent is in possession of only a sum of Rs. 23,536/- being the balance from out of the agricultural income of 35 acres of land, which is undoubtedly, in possession of this respondent, definitely from the year 2006 onwards, if not earlier. We find the minor’s properties are more mismanaged by the court-appointed guardians than managing it in any efficient manner and it is also the version of the respondent that at the time of the death of the mother of the minor boy, she had raised certain loan in the security of the minor’s properties from Vijaya Bank, Annigeri branch and that had swollen to more than Rs. 5,00,000/- and the respondent, with the intention of availing certain governmental concession scheme for waiting interest, applied under the one time-settlement scheme; that per the scheme the outstanding loan was scaled down to Rs. 5,00,000/- and the respondent, with the intention of availing certain governmental concession scheme for waiting interest, applied under the one time-settlement scheme; that per the scheme the outstanding loan was scaled down to Rs. 4,00,000/- by extending the concessional scheme of the government and as the concession can be available only by clearing the existing loan, the respondent-court guardian has raised a total loan of Rs. 6,00,000/- on the security of the very property repaid Rs. 4,00,000 for availing the concession and out of Rs. 2,00,000/- a sum of Rs. 1,50,000/- lakh was utilized for improving agricultural land and the balance Rs. 50,000/- is still with bank in the account and can be availed of when needed. We fail to understand as to how the court appointed guardian could have encumbered the property for raising a bigger loan from the bank without the permission of the court and a debt of this nature does not bind either the minor or the property can be sought to be encumbered. The bank which has given loan on such security in spite of being aware that they are properties belonging to a minor and the loan is being raised by the court appointed guardian and in respect of such transactions while the bank should have been more careful, the grant of further loans with the security of minor’s property without necessary permission from the court. Though Sri.K.L. patil, learned counsel for the respondent-guardian submits that the respondent had taken permission of the Assistant Commissioner for raising additional loan on the security of the minor’s properties, we are not at all satisfied about such submission. In any way absolving the respondent-court guardian from the consequences of indiscretion that he had indulged in. We make it clear that except for the loan amount of Rs. 4,00,000/- the additional loan of amount of Rs. 2,00,000/- cannot bind the minor or his estate and it is for the respondent, who admittedly owns an extent of 44 acres of agricultural land in the very village to make good this additional loan amount raised without the permission of the court, though he was court-appointed guardian of the properties. We also make it clear that as the respondent is managing the property of the minor, the interest on Rs. We also make it clear that as the respondent is managing the property of the minor, the interest on Rs. 4,00,000/- outstanding is only to be serviced by the respondent Veeranagouda from out of his fund, irrespective of the statement filed or the income shown from the agricultural properties belonging to the minor. If the statement filed today before the court is to be believed. It is obvious that it is a losing proposition for the minor and if this should be allowed for a couple of years, the value of the properties may not be sufficient to meet the outstanding debts and other expenditure etc. We cannot permit that to happen as the court is the ultimate guardian of all minor children. Therefore, we direct the bank authorities to realize the interest and the loan amount over and above Rs.4,00,000/- only from the respondent-Veeranagouda. For paucity of time, we are unable to conclude this matter today. List this matter on 6.4.2010 for further orders and for hearing. 06.04.2010 Pursuant to our orders passed on 31.03.2010 these matters are again listed for further orders today. While we find that he matter may have to be disposed of on merits, in the meanwhile we cannot help observing that the appellant as well as the respondent do not appear to have placed true facts and figures so far as the income from the property and the related expenses incurred by the respective party and as to the balance amount available to the credit of the minor’s account in each of their hands. While the present statement of accounts filed before us do not inspire our confidence, we give one more opportunity to the appellant as well as the respondent to come abreast clear and to file before the Court the respective fresh statement of accounts which is nearer to the truth and reality than being away as we find in the versions before the court as of now. Having regard to the close relationship of the parties to the minor, we expect them to come out with a better and cleaner statement of account which they should do at least by 13.04.2010. 2. List on13.04.2010 It is in this background the present appeal and writ petitions are taken up for disposal 14. Having regard to the close relationship of the parties to the minor, we expect them to come out with a better and cleaner statement of account which they should do at least by 13.04.2010. 2. List on13.04.2010 It is in this background the present appeal and writ petitions are taken up for disposal 14. Appearing on behalf of respondent in the appeal and for petitioner in the writ petitions submission of Sri K.L. Patil, learned counsel is that the respondent has in fact been managing the properties to the best of his ability and proper care is being taken to look after the property in the interest of minor child. Sri Patil would submit that in all fairness all petitions, which had been filed for appointment of guardians should have been heard and disposed of together however if the trail Court has disposed of the petition in terms of the impugned order, the respondent cannot be found fault with for the order passed by the learned Judge of the court below in the petition of the respondent. 15. In the wake of the interim directions for submission of periodical statement of accounts, etc. both the appellant and respondent have filed statement and additional statement of accounts which all form part of the record. 16. On a perusal of this statement of accounts we found they do not inspire confidence in us for accepting them at their face value. We are also not satisfied that the properties are being managed in the best interest of the minor child. We have also noticed that except for the amount of Rs. 24,000/- deposited before this Court which would ensure to the benefit of the minor child, the entire income is neither deposited nor accounted for. 17. Vast extents of lands are in the management of close relatives of the minor child, namely his paternal uncle and the maternal grandmother. In the circumstances it is hard to believe that such vast extent of agricultural lands would yield income of only a meager income of Rs. 24,000/- for two years. 18. Sri. Jagadish Patil. Learned counsel for the appellant submits that he appellant was put in possession of agricultural lands only in the year 2009 after the demise of the minor’s father. This submission is contested and disputed by Sri. 24,000/- for two years. 18. Sri. Jagadish Patil. Learned counsel for the appellant submits that he appellant was put in possession of agricultural lands only in the year 2009 after the demise of the minor’s father. This submission is contested and disputed by Sri. K.L. Patil, learned counsel for respondent who submits that the appellant was in possession of this parcel of land even prior to the year 2009. He further submits that the grandmother of the minor child has been taking care of the minor child on the death of mother of minor child during the year 2006. 19. We find from the undisputed facts that uncle and grandmother of the minor child are in possession and enjoyment of properties of minor. 20. While the Court appointed guardian, the uncle of minor child is in possession of 33 acres of land the appellant is in possession of about 22 acres of land ever since the year 2006 but the productivity of such agricultural lands is only Rs. 24,000/- is something which makes us to feel very sad. 21. Therefore we have to infer that the minor’s interest is not being taken care of properly, either by the appellant o the respondent. If at all, it is mismanaged by the appellant, being the maternal grandmother and also by the respondent perhaps the most proximate person to take care of the interest of the minor child being the paternal uncle of minor child. 22. On consideration of all these facts and circumstances, we think we should not go in search of some third person to be appointed as guardian either for the person or for the property of the minor child or of both. 23. We impress upon both grandmother and the paternal uncle of the minor child to act with a degree of responsibility and honesty and to show love and affection to the minor by acting in the best interest of the person and properties of the minor. 24. The order impugned in this appeal is not sustainable. Therefore the appeal is allowed, the impugned order is set aside. 25. We remand the matter to the trail Court. We direct the trail Court to consolidate all petitions seeking for appointment of guardian for either the person or the properties or in respect of both person and the properties. 26. The order impugned in this appeal is not sustainable. Therefore the appeal is allowed, the impugned order is set aside. 25. We remand the matter to the trail Court. We direct the trail Court to consolidate all petitions seeking for appointment of guardian for either the person or the properties or in respect of both person and the properties. 26. The trail Court shall hear the learned counsel for both the parties and pass orders in accordance with laws, if necessary by recording evidence adduced by parties which in our opinion is necessary to pass an order in the best interest of the minor child. As the court itself is the paramount guardian of every minor child, it is the duty of the court to protect the interest of the minor child. 27. We find that a motorcycle which was in the possession of the grandmother of the minor child was sold without the permission of the Court. Mr. Jagadish Patil learned counsel for appellants submits that the sale proceeds viz., a sum of Rs. 17,000/- has been invested in the name of the minor child with the Life Insurance Corporation of India. 28. Sri K.L. Patil, learned counsel for respondent submits that while a Maruti car bearing No. KA-25-G-1841 is admittedly in the possession of respondent. Court may grant permission for effecting sale of this car and to utilize the sale proceeds to discharge the loan outstanding on the car. We permits the respondent to effect the sale of the car under intimation and consultation of the banker/financier and utilize the sale proceeds to clear the outstanding loan and deposit the balance, if any to the credit of the minor’s account before the trial Court, with the permission and the supervision of the Court. 29. In the wake of allowing the appeal and setting aside the impugned order and remanding the matter to the trail Court for fresh consideration and order. W.P. No. 67044/2009. W.P. No. 67045/2009 and W.P. No. 67046/2009 do not survived for consideration for our examination and accordingly they are dismissed. 30. We are constrained and it has become necessary for us to impose some terms in the interest of the minor child during the pendency of petitions before the trail Court. 1. The parties should file periodical statement of accounts once in six months. 2. 30. We are constrained and it has become necessary for us to impose some terms in the interest of the minor child during the pendency of petitions before the trail Court. 1. The parties should file periodical statement of accounts once in six months. 2. The respondent-paternal uncle of the minor child should deposit a minimum sum of Rs. 60,000/-per year before the trail Court during the pendency of the petitions and this should be done from the current year. Likewise the appellant shall deposit a sum of Rs. 40,000/- per year to the credit of the minor child subject to the rendition of the periodical accounts and finalization of the accounts by the trail Court. The trial Court shall pass orders with regard to the investment and disbursement of this amount to ensure accrual of interest on such investment and if any imminent necessity arises part of the deposit to be spent for the welfare of the minor child. 31. The amount in deposit before this Court made by the respondent shall be transmitted to the trail Court for being invested in the name of the minor child initially for a period of three years. The statement of accounts filed before this Court shall be sent to trail Court along with a copy of this order. 32. In view of order as above, the appellant as also the respondent shall continue to be in occupation of lands of minor of aforestated subject to fulfilling the terms indicated above and such orders that may be passed by the trail Court.