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2025 DIGILAW 346 (KER)

Preethy George P. W/o. Bert K. F. v. Nil

2025-02-21

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

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JUDGMENT : Devan Ramachandran , J. The issue in question in this appeal pirouettes around certain sums eligible to the minor child of the first appellant, standing in the Gratuity Pension Fund (GPF) of deceased Sri.K.F.Bert, who was working as a Sub Inspector of Police under the Department of Kerala Police, who unfortunately died intestate on 25.02.2023. 2. The appellants are the wife and major daughter of the deceased; while, the controversy in question is confined to the share of the GPF entitled to the minor child of the first among them. 3. When late Sri.K.F.Bert died, a claim was made by the appellants on their own behalf and on behalf of the minor child on the amounts due under the GPF and we understand – as expressly admitted - that the appellants were given their dues without any objection. However, when it came to the share of the minor child, the Authorities are stated to have directed the appellants to obtain a declaration of guardianship in favour of the first among them; and that they, thereupon, filed GOP No.308/2023 before the Court of the Additional District Judge, Irinjalakuda. 4. However, the aforementioned GOP has been dismissed by the learned Additional District Judge, holding that “provident fund and GPF cannot be termed as a property under Section 29 of Guardians and Wards Act” (sic); and hence, that the remedy of the appellants is to move the jurisdictional Family Court, under the provisions of the Family Courts Act. 5. The appellants challenge the aforesaid order of the learned Additional District Court as being misdirected and improper; and assert that the GOP was maintainable only before the said Court and not before the jurisdictional Family Court. They thus pray that the order of the learned Additional District Court be set aside and GOP No.308/2023 be allowed. 6. Sri.Nayana Varghese – appearing for the appellants, began her submissions drawing our attention to Sections 7 and 9 of the Guardians and Wards Act, 1890 (for short “the Act”). They thus pray that the order of the learned Additional District Court be set aside and GOP No.308/2023 be allowed. 6. Sri.Nayana Varghese – appearing for the appellants, began her submissions drawing our attention to Sections 7 and 9 of the Guardians and Wards Act, 1890 (for short “the Act”). The learned counsel pointed out that, as per Section 7 of the “Act”, it is the District Court which has been vested with the jurisdiction to consider an application for the appointment of a guardian for both the person and property of a minor; and that Section 29 thereof, then imposes limitation on the power of the said guardian to mortgage, charge, transfer by sale, gift, exchange or to lease such property for a term exceeding five years, or for one year after the ward ceases to be a minor, without the permission of the Court. She argued that, therefore, it is unmistakable in its tenor that Section 7 of the “Act” takes into its umbra property of a minor of every kind — be it movable, immovable or otherwise; and relied upon two judgments of this Court, namely Narayana Elayathu K.S. v. Sandhya [ 2022 (1) KLT 77 ] and Anitha Abraham v. Jacob Oommen [ 2003 (1) KLT 417 ], to fortify her argument that, any application for the purpose of declaration of the guardianship of the person or property of a minor will lie only before the District Court and not before the learned Family Court. She thus prayed that this appeal be allowed. 7. Sri.P.M.Shameer – learned Government Pleader, representing the respondent Accountant General – which Authority was, in fact, impleaded by us suo motu to verify whether they have any objection to the release of the GPF of late Sri.K.F.Bert in favour of the minor child – submitted that his client is only concerned that any release of such amounts is as per law and not in derogation of the imperative statutory requirements. He pointed out that, all which the appellants were told, was to obtain a certificate of guardianship from a competent Court and that therefore, the Accountant General does not have any opinion as to the manner in which it is to be obtained, or the Court which is competent to issue it. He thus left all such issues for the consideration of this Court. 8. He thus left all such issues for the consideration of this Court. 8. The narration of facts as afore render it apodictic that there is no dispute that the minor child is entitled to her share of the amounts standing credit in the GPF account of her deceased father; and that all which we are now required to decide is whether the Certificate of Guardianship qua her is to be issued by the learned District Court, or by the competent Family Court. 9. The impugned order holds that the jurisdiction to consider the issuance of a declaration of guardianship, relating to the amounts standing in credit of the GPF Account of the deceased - father of the minor child, is with a learned Family Court because, such amounts do not construe as “property”, within the purlieus of Section 29 of the “Act”. 10. We are afraid that we cannot find favour with the above holdings of the learned District Court; and that it has unfortunately misdirected itself as regards the manner of the application of the provisions of the “Act”. 11. We say as afore because, as rightly argued by Smt.Nayana Varghese, Section 7 of the “Act” vests jurisdiction, to declare the guardianship of the person or property of a minor, with the District Court; and then, Section 29 thereof makes it indubitable that, after such an appointment has been made, the guardian can mortgage, charge, transfer by sale, gift, exchange or lease the property for a term exceeding five years, or for a term exceeding one year beyond the date on which the ward ceases to be a minor, only with the permission of the Court. 12. It is consequently unnecessary for further expatiation that Section 29 of the “Act” limits the power of the guardian qua the immovable property of a minor; but does not in any manner even reflect upon the other types of property, as defined under Section 7 of the “Act”. 13. To paraphrase, when it comes to the movable property - which can even be tangible or intangible, but subject to a proprietary value - all which would require in law, is to ensure that the interest of the minor is protected until such time as he/she attains majority. 13. To paraphrase, when it comes to the movable property - which can even be tangible or intangible, but subject to a proprietary value - all which would require in law, is to ensure that the interest of the minor is protected until such time as he/she attains majority. The normal safeguard, that such amounts are deposited in an interest bearing account with a Nationalized or a Scheduled Bank, would come to play in such a situation; and hence, the finding of the learned District Court that the amounts standing in credit in the GPF Account of the deceased cannot be construed to be “property” within the ambit of Section 29 of the “Act” becomes wholly irrelevant and without any nexus to the cause concerned. 14. While we hold so, we are also in full affirmation with the declarations in Narayana Elayathu K.S. (supra) and Anitha Abraham (supra), wherein, it has been held, leaving no room for doubt, that when the question relates to the appointment of a guardian in respect to the property of a minor, a Family Court obtains no jurisdiction because, it is not a dispute “as defined under the explanation (g) in Section 7(1) of the Family Courts Act, 1984 ”. 15. Pertinently, there is absolutely no dispute as regards either the entitlement of the minor to the amounts in question, or to the proportion to which he is so eligible; and hence, we fail to understand why the learned District Court should have refused jurisdiction on the ground that such amounts are not part of “property” as included in Section 29 of the “Act”. No doubt, the view of the District Court, that the amount in question would not come within the ambit of Section 29 of the “Act” is without error because, it would take within its fold only immovable ones; but to then hold that it does not obtain jurisdiction for that reason certainly cannot find forensic favour. 16. Our view is thus certain that the property of a minor is within the sweep of Section 7 of the “Act”; and that it is only the immovable portions of it, that would be guided by the restrictions in Section 29 thereof. 17. In the afore scenario, we are of the firm opinion that the findings of the learned District Court are in error and that we are hence enjoined to intervene. 18. 17. In the afore scenario, we are of the firm opinion that the findings of the learned District Court are in error and that we are hence enjoined to intervene. 18. In summation, we allow this appeal and set aside the order of the learned Additional District Court; and as a necessary corollary, allow GOP No.308/2023, thus declaring that the first appellant is the guardian of the property of the minor, scheduled to the said petition. Needless to say, on the amounts being released by the competent Authority in favour of the first appellant in terms of our declaration above, the same shall be deposited by her, in a high interest bearing account with a Nationalised bank in the name of the minor, for a period until the latter obtains majority. The first appellant will, make this deposit within a period of one month from the date on which she receives the amount and will produce the Fixed Deposit receipt before the District Court, Irinjalakuda, within a period of two weeks thereafter.