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Kumari Nahusha v/s Nil

    Misc. First Appeal No. 2052 of 2015 (GW)

    Decided On, 10 April 2015

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE N.K. PATIL & THE HONOURABLE MRS. JUSTICE RATHNAKALA

    For the Appellant: Rashmi Patel for R. Nataraj, Advocates. For the Respondent: ------



Judgment Text

(Prayer: This M.F.A. is filed under Section 47(e) of the Guardian and Wards Act, against the order dated 3.1.2015 passed on G & WC No.25/2014 on the file of the VI Additional City Civil and Sessions Judge, Bangalore City, partly allowing the petition filed under Section 28 of the Guardians and Wards Act, r/w Section 8 of the Hindu Minority and Guardianship Act.)

1. This appeal is filed under Section 47(e) of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act’ for brevity) challenging the order dated 3rd January 2015 passed by the learned VI Additional City Civil & Sessions Judge, Bangalore City, in G & W.C.No.25/2014, whereby the petition filed by the appellant herein is partly allowed.

2. Briefly stated, the appellant being a minor represented by her father/natural guardian, filed a petition under Section 28 of the Act read with Section 8 of the Hindu Minority and Guardianship Act, 1956, seeking permission for her parents to develop the petition schedule property and construct two residential houses on the two floors and further permission for her parents to take 50% of the und

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ivided interest in the schedule property along with first floor of the proposed construction as their share and earmark the remaining 50% of the undivided interest in the schedule property along with the ground floor of the proposed construction towards the share of the minor appellant.

3. After presentation of the petition, notice of the petition was taken in 'The Hindu' daily newspaper and nobody appeared to contest the petition. PWs-1 to 3 were examined for the petitioner and documents Exs.P1 to P11 are marked.

4. The learned District Judge was of the opinion that, the parents being the guardians of the minor petitioner are not entitled to create their interest in the schedule property and granting permission as sought is out of scope of the powers granted under Section 29 of the Act. The operative portion of impugned order reads thus:

'1. The petition filed by the petitioner is hereby allowed in part.

2. It is hereby ordered that, permission is hereby granted to P.W.3 to invest his money in the schedule property and construct thereon two residential houses on the two floors.

3. It is hereby ordered that, the prayer to permit the parents of the petitioner to take 50% of the undivided interest in the schedule property along with the first floor of the proposal construction as their share and earmark the remaining 50% of the undivided interest in the schedule property along with the ground floor of the proposed construction towards the share of the minor petitioner is hereby rejected.

4. Issue Certificate accordingly.'

5. Since the father of the minor appellant is presently put up in United States of America, in his absence, the minor is represented by her month in this appeal.

6. It is the case of the appellant that the property in question was allotted to the appellant in a partition suit between her father and grandfather. She along with her parents was residing at United States of America and they could not attend the maintenance of the property. It is an old building requires extinctive repair. They could not identify a tenant. Now the appellant is residing at Bangalore along with her mother and she is prosecuting her studies in Indus International School, Sarjapura Road, Bangalore City. The family has no accommodation at Bangalore. Hence, they propose to pull down the existing old building and put up new construction at their own cost on the basis of joint development agreement. The appellant can retain the grounds floor towards her share and the parents can retain the first floor as compensation for the cost of the building. The arrangement is for the benefit of the appellant since the property would be developed and the appellant can encash the rent that may be earned by renting out the ground floor. As of now, no income is generated from the property.

7. It is the submission of the learned Counsel for the appellant that the learned District Judge insisted the father to file an affidavit stating that, he would not encumber 50% of the undivided share along with the constructed area that would fall to his share in the event of granting permission by the court. Such affidavit was indeed filed. Still, the learned District Judge has rejected the proposal to allot 50% of the undivided interest in the schedule property along with first floor of the proposed construction towards the share of the appellant’s father. The parents of the appellant are the citizens of United States of America and hold the status of 'Overseas Citizens of India'. There is dual taxation agreement between India and America. The expenses incurred at India by the parents would be treated as expenditure in India, which could be deducted in the income. If the father invests money on a property belonging to the appellant, he cannot claim such investment as expenditure. Unless he gets corresponding benefit from the said property, he cannot invest the money. It is for the said reason, he sought permission to make over 50% of the undivided interest in the schedule property along with the constructed area to his share while remaining 50% would fall to the share of the appellant. But the court below did not consider the bonafides of the appellant and also failed to appreciate the facts demonstrated by the appellant. Under the circumstances, the appeal may be allowed by setting aside the order insofar as it relates to rejection of the appellant’s request to make over 50% of the undivided interest in the schedule property along with the ground floor to the share of the appellant’s father.

8. The mother of the appellant has produced an affidavit sworn by the father of the appellant at U.S.A. The relevant portion of the affidavit is extracted below:

'2. I state that I as the natural guardian of my daughter; intend to construct a two floor residential building at my cost in the aforesaid property. I state that my daughter; my wife and I shall reside in the first floor while the ground floor premises shall be rented out and the rent shall be utilized completely for the maintenance and well being of my daughter.

3. I state that since I have to invest my income over the property that belongs to my daughter; the investment for the construction cannot be termed as an expenditure. It is due to this only that I shall take 50% of the undivided interest of the property along with the first floor premises while the other 50% undivided interest shall be retained by my daughter who shall take the ground floor premises. I state that this is in the best interest of my daughter since the property in question was not yielding any rent or income.

4. I state that I shall not alienate the 50% undivided interest in the property along with the first floor constructed area in the aforesaid property until my daughter enters into a wedlock and I shall ensure the complete well being, maintenance of my daughter.'

9. The learned District Judge though does not disbelieve the version of the father of the minor that, they are going to pull down the existing building and put up a two floor building at their own cost on joint development basis, etc., and though draws a favourable inference that there is no hurdle to grant permission to demolish the old building and construct the new one, was reluctant to allow the prayer to allot a share in the proposed construction and to permit the father to take 50% of the undivided interest in the proposed property along with the first floor of the proposed construction towards the share of the parents and to earmark the remaining 50% of undivided interest along with the ground floor of the proposed construction towards the share of the appellant. The reasoning assigned was, since the parents have no pre-existing right, title or interest in the schedule property, the proposed transaction is not in accordance with Sections 7 and 29 of the Act or Section 8 of the Hindu Minority and Guardianship Act, 1956 and they do not permit the guardian to take any share or create his right, title and interest in the property of the ward.

10. Section 7 of the Act emphasized by the court below is an enabling provision for the court to make an order of guardianship. Section 29 of the Act, which the court below thought would not permit a guardian to take share or create his right, title or interest in the property of the ward, reads as under:

'29. Limitation of powers of guardian of property appointed or declared by the Court.-

Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or

(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.'

11. A cursory reading of the above Section makes it clear that the guardian is not prohibited from mortgaging, creating charge or alienating by any other mode of the immovable property of his ward, but he has to obtain prior permission from the court for such transaction.

12. On a overall view of the matter, it emanates that the family of the minor now propose to settle down at Bangalore and they have no accommodation of their own at Bangalore, they intend to put up a construction in the petition schedule property, which was gifted to the minor as per the terms of compromise entered in a partition suit between the father and grandfather of minor. There is no reason to infer the malafides on the part of the father of the minor in canvassing that if he expends his money in the property belonging to his daughter, it cannot be termed as expenditure for tax purpose. In that view of the matter only, he is offering to take 50% of the undivided interest in the property and reside with the minor and also his wife in the first floor of the building. Apart from 50% of the undivided interest from the first floor building, she will be entitled for the rentals.

13. In our considered opinion, the prayer sought by the appellant is reasonable and is in the welfare of the minor. As such, they are none other than her own parents and natural guardians. Allowing the prayer, which is rejected by the court below, would sub-serve the welfare of the minor. Hence, the following order:

The appeal is allowed.

The order dated 3rd January 2015 passed by the learned VI Additional City Civil & Sessions Judge, Bangalore City, in G & W.C.No.25/2014, is hereby modified.

Apart from the relief granted by the court below, parents of the appellant Kum.Nahusha, aged 13 years, daughter of Sri.C.R. Madhusudhan, are permitted to take 50% of the undivided interest in the petition schedule property along with the first floor of the proposed construction as their share and earmark the remaining 50% of the undivided interest in the schedule property along with the ground floor of the proposed construction towards the share of the minor appellant.
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