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2021 DIGILAW 857 (KER)

K. Sabarinathan v. District Collector, Palakkad

2021-09-23

SATHISH NINAN

body2021
JUDGMENT : Petitioner is the father of Sri.S.Neeraj who was born mentally retarded (hereinafter referred to as “the special child”). Suprabha, the wife of the petitioner and the mother of the special child, expired on 08.01.1999. An extent of 3 acres of property belonged jointly to Suprabha, her brother and their mother (hereinafter referred to as, “wife”, “brother-in-law” and “mother-in-law”, respectively). After the death of the wife, in the year 2006 and 2008 the brother-in-law and mother-in-law executed registered sale deeds with respect to the property in favour of strangers. At that time the special child was a minor and the sale deeds were executed by the mother-in-law as his guardian. In the year 2009, the petitioners mother-in-law and brother-in-law filed a suit as OS 741/2009 before the Sub Court, Thrissur against the petitioner and the special child as defendants, seeking a relief for partition in respect of certain other item of property. Subsequently the petitioner, on his own behalf and as the guardian of the special child, who was then a minor, filed OS 1701/2012 for partition treating the sale deeds of 2006 and 2008 first above referred to as void. 2. Pending the suits the parties arrived at a settlement. As per the settlement, the petitioner did not claim any share in the property. The value of the share of the special child over the properties was fixed at Rs.10 lakhs. The sub court as per order on IA 5884/13 permitted the petitioner to sign the compromise for and on behalf of the special child. It appears that, the fact that the special child is mentally challenged was not brought to the notice of the Court. Be that as it may, the fact remains that the suit ended in a compromise. In compliance with the terms of the compromise, an amount of Rs.10 lakhs, being the share of the minor, was deposited in a Bank-HDFC Bank, Palakkad Town, R.S. Road as a Fixed Deposit. The Fixed Deposit receipt was produced before the court noting a lien in favour of the court. The same has been observed in the judgment passed on compromise in the suit OS 741/2009. A copy of the said judgment is produced along with the writ petition as Ext.P4. 3. The Fixed Deposit receipt was produced before the court noting a lien in favour of the court. The same has been observed in the judgment passed on compromise in the suit OS 741/2009. A copy of the said judgment is produced along with the writ petition as Ext.P4. 3. In the year 2017, on the application of the petitioner under Section 14 of the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, (hereinafter referred to as “the National Trust Act”) the petitioner was appointed as the legal guardian of the special child. Since neither at the time of execution of the sale deeds in the year 2006 and 2008 or at the time of the compromise before the Sub Court, Thrissur, in OS 741/09, any guardian in terms of the National Trust Act was appointed for the special child, petitioners seek for a direction from this Court to the respondent who is the Chairman of the local level committee under the National Trust Act for sanction to execute a conveyance in favour of the assignees under the 2006 and 2008 sale deeds for the consideration of Rs.10 lakhs received under the compromise in OS 741/09. 4. Heard Sri.Vinod Vallikkappan, learned counsel for the petitioner, learned Government Pleader and Sri.V.Ramkumar Nambiar and Smt.Satyasree Priya, learned Amicus Curiae. 5. The learned Amicus Curiae points out that, neither the National Trust Act nor the Rules made thereunder specifically provide for grant of sanction for sale of assets of the Wards dealt with thereunder. In the absence of any specific provision or a direction from this Court clarifying the powers of the Local Level Committee constituted under the National Trust Act, they would be unable to consider the request if any made for sanction, points out the learned Amicus Curiae. 6. As per Ext.P1 certificate of appointment of the petitioner as the legal guardian of the special child, the obligations of the legal guardian has been mentioned thus:- “3. Obligations of the Legal Guardian (a) Maintenance and care of the person (b) Management of the immovable property (c) Management of movable property (d) Any others” 7. Noticeably, serial No.3(b) deals with the obligation of the legal guardian regarding management of immovable property of the special child. Obligations of the Legal Guardian (a) Maintenance and care of the person (b) Management of the immovable property (c) Management of movable property (d) Any others” 7. Noticeably, serial No.3(b) deals with the obligation of the legal guardian regarding management of immovable property of the special child. But for casting an obligation to take care of the assets, there is no express provision under the National Trust Act or the Rules thereunder, for dealing with the assets of the Ward dealt with therein. Section 14 of the National Trust Act provides for appointment of guardian. Section 15 enumerates the duties of a guardian, which includes,care of the assets of the ward. Section 16 mandates the guardian to file periodical returns giving the details of the assets of the subject. Sections 14 to 16 of the National Trust Act reads thus, “14. Appointment for guardianship—(1) A parent of a person with disability or his relative may make an application to the Local Level Committee for appointment of any person of his choice to act as a guardian of the persons with disability. (2) Any registered organization may make an application in the prescribed form to the Local Level Committee for appointment of a guardian for a person with disability: Provided that no such application shall be entertained by the Local Level Committee, unless the consent of the guardian of the disabled person is also obtained. (3) While considering the application for appointment of a guardian, the Local Level Committee shall consider— (a) whether the person with disability needs a guardian; (b) the purposes for which the guardianship is required for person with disability. (4) The Local Level Committee shall receive, process and decide applications received under sub-sections (1) and (2), in such manner as may be determined by regulations: Provided that while making recommendation for the appointment of a guardian, the Local Level Committee shall provide for the obligations which are to be fulfilled by the guardian. (5) The Local Level Committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations. 15. (5) The Local Level Committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations. 15. Duties of guardian— Every person appointed as a guardian of a person with disability under this Chapter shall, wherever required, either have the care of such person with disability and his property or be responsible for the maintenance of the person with disability. 16. Guardian to furnish inventory and annual accounts.—(1) Every person appointed as a guardian under section 14 shall, within a period of six months from the date of his appointment, deliver to the authority which appointed him, an inventory of immovable property belonging to the person with disability, and all assets and other movable property received on behalf of the person with disability, together with a statement of all claims due to all and debts and liabilities due by such person with disability. (2) Every guardian shall also furnish to the said appointing authority within a period of three months at the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him.” The guardian is thus made responsible for the maintenance of the assets of the subject and is required to submit periodical reports regarding the assets of the subject. Situations would arise where for various reasons including, to find a financial source for the proper care and maintenance of the Ward, the assets of the Ward or a portion thereof would be required to be dealt with by way of sale or otherwise. However, there is no express provision under the National Trust Act or the Rules thereunder, enabling the same. When the guardian is answerable to the Local Level Committee, and periodical monitoring at the hands of the Committee is contemplated, it requires to be read into the powers of the Committee, the power to grant sanction for dealing with the assets of the Ward by the guardian appointed under Section 14 of the National Trust Act. Though express powers in the said regard have not been specifically vested in the committee, on the scheme of the Act it must be understood to be vested with the Committee. Though express powers in the said regard have not been specifically vested in the committee, on the scheme of the Act it must be understood to be vested with the Committee. Therefore it is declared that, the Local Level Committee under the National Trust Act, has the power to grant or refuse sanction to a guardian to deal with the assets of the Ward. Of course, whether in a given case sanction is to be granted or not, is for the Committee to consider on appreciating the entire facts of each case. 8. The power to grant or refuse sanction to deal with the assets of the Ward, having been held to vest with the Local Level Committee, it is for the petitioner to approach the Committee with a proper application on production of all the relevant materials including those to convince the Committee that the interests of the Ward is adequately safeguarded and protected, and that the transaction is in the best interests of the Ward. The petitioner could seek for permission to execute conveyance of the rights of the subject over the property conveyed under sale deeds of the year 2006 and 2008 referred to first above for the consideration of Rs.10 lakhs received as per the settlement in OS 741/09. If such a request is made, the Local Level Committee shall consider the entire facts, the sufficiency of the consideration, and pass appropriate orders. The committee shall, while considering the application, give notice of the proceedings to the assignees under the sale deeds of the year 2006 and 2008 referred to above and also the plaintiffs in OS 741/2009 of the Sub Court, Thrissur. The writ petition is ordered as above.