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2013 DIGILAW 186 (MAD)

Munisamy v. Sivamma

2013-01-08

S.MANIKUMAR

body2013
Judgment :- 1. Parents of minor Sadhasivam and Minor Amaresh have filed two applications under Section 29 of Guardian and Ward’s Act in G.O.P.Nos.92 and 93 of 2011 respectively, seeking permission from the learned principal District Judge, Krishnagiri to sell the minors share in the petition schedule mentioned properties. 2. In G.O.P.No.92 of 2011, Mr. Munisamy and Mrs. Sivamma, parents of the minor, Ramamurthy, then aged 13 years has sought for permission from the learned principal District Judge, Krishnagiri, to sell the minor Ramamurthy’s ½ share in the petition scheduled mentioned property as per the sale agreement dated 29.07.2011 and also sought for permission from the Court to deposit the sale proceeds of Rs.66,500/-, representing the ½ share of Minor Ramamoorthy. One Sadhasivam, brother of minor Ramamoorthy, entitled to the balance ½ share of the scheduled mentioned property, has attained majority. The property, has been settled in favour of the above said brothers, by their grandfather Madhanagiriyappa, through a registered gift settlement deed dated 29.12.2003. 3. Mr.Munisamy, father of Minor.Ramamurthy, in the supporting affidavit seeking permission to sell ½ share of the schedule mentioned property has stated that Minor Ramamurthy and Major Sadhasivam, brothers are studying in the school and to meet out the educational and other expenses, funds are required and it was decided to sell the property and accordingly, an agreement of sale has been executed in favour of one Mr.Muniraj of Alambadi village and post, Kolar District, Karnataka State for value of Rs.1,33,000/-. Father of the minor has also stated that an advance amount of Rs.50,000/- has been received and that the balance sale consideration of Rs.83,000/-has to be paid by the purchaser, within three months from the date of agreement of the sale. 4. In G.O.P.No.93 of 2011, Mr. Venkatesh alias Venkatesappa, father of minor Amaresh, then aged about 11 years, has sought for permission from the learned principal District Judge, Krishnagiri, to sell petition scheduled mentioned property as per the sale agreement dated 29.07.2011 and also sought for permission from the Court to deposit the sale proceeds of Rs.62,500/-. The petition schedule mentioned property, has been settled in favour of minor Amaresh by his maternal grandfather Madhanagiriyappa through a registered gift settlement deed dated 29.12.2003 and in the supporting affidavit seeking permission to sell the schedule mentioned property, Minor Amaresh is also stated to be studying in the school. The petition schedule mentioned property, has been settled in favour of minor Amaresh by his maternal grandfather Madhanagiriyappa through a registered gift settlement deed dated 29.12.2003 and in the supporting affidavit seeking permission to sell the schedule mentioned property, Minor Amaresh is also stated to be studying in the school. As the parents were not able to meet out his educational and other expenses, and for the said purpose, it was decided to sell the property, and accordingly, an agreement of sale has been executed in favour of above said Muniraj for a sale consideration of Rs.62,500/-on 29.07.2011. Father of the minor, has also stated that an advance amount of Rs.12,500/-has been received and that the balance sale consideration of Rs.50,000/-has to be paid by the purchaser, within three months from the date of agreement of the sale. 5. In G.O.P.No.92 of 2011, Mr.Munisamy, father of the minor Ramamurthy, has examined himself as PW1 and reiterated the need for disposing the property and also marked Ex.A1, unregistered Sale agreement executed between the Munisamy and one Muniraj, Ex.A2, true copy of Gift Settlement Deed executed by Madhanagiriappa in favour of the Sadasivam and Minor Ramamurthy, Ex.A3, Giudeline value for the land in S.No.476 and Ex.A4, School certificate issued by Govt. High School, Alasetty. 6. In G.O.P.No.93 of 2011, Mr. Venkatesh & Venkatesappa, father of the minor Amaresh has examined himself as PW1 and marked Ex.A1, unregistered Sale agreement executed between Venkatesh @ Venkatesappa and one Muniraj, Ex.A2, true copy of Gift Settlement Deed executed by one Madhanagiriappa in favour of the Minor Amaresh, Ex.A3, Guideline value for the land in S.No.570 and Ex.A4, School certificate issued by P.U.M.School, Devarulimangalam. 7. Fathers of both the minors have adduced oral evidence to substantiate their contention that the proposal to sell the above schedule mentioned properties was necessitated only in the interest of the minors. They have also deposed that sufficient paper publication and publication in the village had been effected and that there were no objections for alienating the property in the interest of the minors. This is also their contention that the sale proceeds would be deposited in a nationalised bank and that it for only education and maintenance expenses of the minors Ramamurthy and Amaresh, respectively. 8. This is also their contention that the sale proceeds would be deposited in a nationalised bank and that it for only education and maintenance expenses of the minors Ramamurthy and Amaresh, respectively. 8. Though, the parents have pleaded that the proposed sale was only in the interest of the minors, the learned principal District Judge, Krishangiri, upon perusal of the Gift Settlement Deed, Ex.A2, has noticed that under Ex.A2, on Munivenkatamma, grandmother of the minors, has been appointed as the guardian. The Court below has observed that as per Ex.A2, the gifted properties shall not be alienated to anybody until the minors attain majority and that the grand mother has been given the right to enjoy the property. The Court below, has extracted the following relevant portion from Ex.A2. “TAMIL” 9. By observing that under Ex.A2, no right of alienation is granted even to the guardian, till the minors attain the age of majority and when the said Munivenkatamma, grandmother, has been appointed as guardian for the minors, the averments in the supporting affidavit filed in G.O.P. Nos.92 and 93 of 2011 do not state anything as to whether the said guardian was alive or not and in the light of the above observation, the Court below declined to grant permission to sell the minors properties mentioned in the above said G.O.Ps and accordingly, both the petitions have been dismissed. 10. Being aggrieved by the same, the present Civil Miscellaneous Appeals CMA Nos.3616 and 3617 of 2011, have been filed. Parents, have contended that though, Mrs. Munivenkatamma, wife of Madhangiriyappa, has been nominated as guardian by her husband in Ex.A2, registered Settlement Deed in Document No.1950 of 2003 dated 29.12.2003 in favour of minor Amaresh, son of Venkatesh @ Venkatesappa and another property in favour of Minor Ramamurthy (1/2 share) and Minor Sadhasivam (1/2 share), who has now attained majority, due to old age and health condition, she is not able to exercise any rights over the schedule mentioned properties. Parents, have also contended that the schedule mentioned properties are dry lands and they do not yield any income and that there is also a possibility of third parties encroaching upon the properties. 11. Parents, have also contended that the schedule mentioned properties are dry lands and they do not yield any income and that there is also a possibility of third parties encroaching upon the properties. 11. It also their contention that when the minors interest is sought to be protected by the sale and the consequential act of depositing the sale proceeds in a nationalised bank, in their respective names, the Court below ought to have granted permission. According to the parents, as per Section 4 of the Hindu Marriage and Guardianship Act, 1950 r/w Guardian and Ward’s Act, 1980, father is the natural guardian of a Hindu minor for the person and property and when both the parents have sought for permission to sell the minors share with the consent of their grandmother Mrs. Munivenkatamma, guardian appointed as per Ex.A2, registered Gift Settlement deed dated 29.12.2003, the Court below ought to have granted permission. 12. Perusal of the impugned awards show that the Court below has raised a very valid objection that the averments in the supporting affidavit in G.O.P.Nos.92 and 93 of 2011 do not contain anything about, grandmother Mrs. Munivenkatamma, guardian of minors, who has been appointed under Ex.A2, registered Gift Settlement Deed, and that she has also been conferred with a right to possess and enjoy the properties, until the minors attain majority. According to the parents, the purpose for the proposed sale is to meet out the educational and other maintenance expenses of the minors. 13. In CMA No.3616 of 2012, field against the order made in G.O.P.No.92 of 2011, dated 17.12.2011 on the file of the learned principal District Judge, Krishanagiri, in the matter of minor M. Ramamurthy, a joint affidavit has been filed by Mr. Munisamy and Mrs. Sivamma, parents of the above said minor and also Mrs. Munivenkatamma, grandmother of the minor to the effect that the proposed sale is only to protect the interest of the minor Ramamurthy. In the joint affidavit, they have also stated that the advance amount of Rs.50,000/-, received towards the sale consideration and the balance amount of Rs.66,500/- would be deposited in the name of the minor Ramamurthy in a nationalised bank and that they would not withdraw, even the interest or any part of the principal amount. 14. In the joint affidavit, they have also stated that the advance amount of Rs.50,000/-, received towards the sale consideration and the balance amount of Rs.66,500/- would be deposited in the name of the minor Ramamurthy in a nationalised bank and that they would not withdraw, even the interest or any part of the principal amount. 14. In the joint affidavit, they have also undertaken that they would not misappropriate the amount in any manner until minor Ramamurthy, attains majority. It is also their contention that the sale agreement is in accordance with Government guidelines and that there is no collusion or fraud between the parties. 15. Similarly in C.M.A.No.3617 of 2012, filed against the order made in G.O.P.No.93 of 2011 dated 17.12.2011, on the file of the learned principal District Judge, Krishangiri, Mr. Venkatesh @ Venkatesappa and Mrs. Munirathima, the parents of minor Amaresh, then aged about 11 years and his grandmother Mrs. Munivenkatamma, have filed a joint affidavit. The contents of the affidavit are on the same lines. Parents and the grandmother, have undertaken to deposit the entire sale consideration of Rs.62,500/- in the name of the minor Amaresh in a nationalised bank and that they have further undertaken not to withdraw any interest or any part of the principal amount from the deposit. They have also contended that the amount would be deposited in the bank, till the minor attains majority or any nominee is appointed by the court. 16. In both the joint affidavit, Mrs. Munivenkatamma, grandmother, who has been appointed as guardian under Ex.A2, Registered Gift Settlement deed dated 29.12.2003, has given no objection for the sale of schedule mentioned properties for the welfare of the minors and deposit of the entire amount in fixed deposit, in their names, in a nationalised bank, until the minors attain majority. 17. On this day, Mr. Sadhasivam, brother of minor Ramamurthy, who has ½ share in Ex.A2, dated 29.12.2003, settlement deed executed by his grandfather Madanagirippa, has appeared in Court. Transfer certificate issued by the Head Master, Government Hr. Sec. school, Kelamangalam dated 22.05.2012 has been produced to prove that he was born on 04.09.1993 and on the date of hearing the appeal, he has attained majority. He has no objection for the property being sold. 18. Transfer certificate issued by the Head Master, Government Hr. Sec. school, Kelamangalam dated 22.05.2012 has been produced to prove that he was born on 04.09.1993 and on the date of hearing the appeal, he has attained majority. He has no objection for the property being sold. 18. As the grandmother of the minors stated supra, who has been granted a right of possession and enjoyment of the schedule mentioned properties, until the minors attain majority, herself has filed a joint affidavit, alongwith the parents of the minors, stating that she has no objection to sell the property, for the welfare of the minors and consequently for the deposit of the entire amount in a fixed deposit in a nationalised bank in favour of the minors, the objection of the court below, no longer subsists. As she has given no objection to sell the property, it should be construed that the grandmother and guardian under Ex.A2, registered gift settlement deed, has waived her right of possession and enjoyment of the schedule mentioned properties, in the interest of minor. From their undertaking one thing is clear that the grandmother is unable to manage the properties and that she is not interested in possessing and enjoying the property. By asserting that they would not even receive even the interest, they have made it clear, that the funds are required to meet out the educational and other expenses. As the intention of the parties, appear to be bonafide, this Court is of the view that the proposed sale, can be permitted. 19. Recording the undertaking of Mr. Munisamy and Mrs. Sivamma, the parents of Minor Ramamurthy and Mrs. Munivenkatamma, grandmother of minor this Court is of the view that permission can be granted to sell the minor’s ½ share for value of Rs.66,500/- and that the same should be deposited in a nationalised bank. The parents of minor Ramamurthy and the grandmother, should not withdraw any interest or any part of the principal amount. 20. Similarly, having regard to the undertaking of Mr. Venkatesh @ Venkatesappa and Mrs. Munirathina, the parents of Minor Amaresh and Mrs. Munivenkatamma, grandmother of minor, respectively the entire sale proceeds viz., Rs.62,500/- should be deposited in a nationalised bank and that they would not withdraw any interest or any part of the principal amount. 20. Similarly, having regard to the undertaking of Mr. Venkatesh @ Venkatesappa and Mrs. Munirathina, the parents of Minor Amaresh and Mrs. Munivenkatamma, grandmother of minor, respectively the entire sale proceeds viz., Rs.62,500/- should be deposited in a nationalised bank and that they would not withdraw any interest or any part of the principal amount. For the reasons stated supra earlier, this Court is of the view that permission should be granted to sell the property, settled in favour of the minor Amaresh. 21. It is well settled that the Court should be the guardian of the person and property of a minor. In as much as the respective parents of the minors and the grandmother of minors, have undertaken to deposit the entire sale consideration in the name of the minors in any nationalised bank and also undertaken not to withdraw the interest of any part of the principal amount, permission can be granted, subject to the condition that the sale consideration of Rs.66,500/- in respect of the schedule mentioned property in G,O.P.No92 of 2011 and Rs.62,500/-, in respect of the schedule mentioned property in G.O.P.No.93 of 2011, be deposited in a nationalised bank in the names of the minors M. Ramamurthy and Amaresh, respectively, and on production of the fixed deposit receipts, the learned principal District Judge, Krishangiri, is directed to grant permission to sell the property. Parents of the minors and the grandmother, shall not withdraw any interest or any part of the principal amount, from their deposits, until, the minors attain majority. On attaining majority, the minors, in whose interest the properties are now sought to be sold, can seek for appropriate orders from the Court below. Both the Civil Miscellaneous Appeals are ordered, accordingly, no costs.