James Nicholas L vs Nil
2023 Latest Caselaw 2822 Kant

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                                                         MFA No. 553 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 2ND DAY OF JUNE, 2023

                                            PRESENT
                             THE HON'BLE MR JUSTICE ALOK ARADHE
                                              AND
                        THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                    MISCELLANEOUS FIRST APPEAL NO. 553 OF 2023 (GW)
                   BETWEEN:

                   1.    JAMES NICHOLAS L,
                         S/O LOUIS JAMES A,
                         AGED ABOUT 13 YEARS,
                         SINCE MINOR REPRESENTED BY HIS MOTHER AND
                         GUARDIAN SMT MANJU M. @ MAGDALEEN MANJU
                         LOUIS @ MANJU LOUIS JAMES,
                         W/O LOUIS JAMES AND D/O MUNIRAJU,
                         AGED ABOUT 39 YEARS,
                         R/AT 617, VEERABHADRAPPA ROAD,
                         R. S. PALYA, MARUTHI SEVANAGAR,
                         BENGALURU-560033.

Digitally signed
by BELUR           2.    JEEVESH ADHVIK,
RANGADHAMA               S/O SRINIVAS M, AGED ABOUT 1 YEAR,
NANDINI
                         SINCE MINOR REPRESENTED
Location: HIGH
COURT OF                 BY HIS FATHER AND GUARDIAN
KARNATAKA
                         SRINIVAS M., S/O MUNIRAJU
                         AGED ABOUT 35 YEARS,
                         R/A 52/A, SATHYMURTHY CROSS,
                         R. S. PALYA, KAMANAHALLI MAIN ROAD,
                         BENGALURU-560033.

                   3.    SAANVI M,
                         D/O MAHESH S, AGED ABOUT 5 YEARS,
                         SINCE MINOR REPRESENTED BY HER MOTHER AND
                         GUARDIAN SMT LAKSHMI DEVI M @ DEVI M,
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                                            MFA No. 553 of 2023




     W/O MAHESH S, D/O MUNIRAJU,
     AGED ABOUT 32 YEARS, R/AT 52/A SATHYAMURTHY
     CROSS, R. S. PALYA KAMANAHALLI MAIN ROAD,
     BENGALURU - 560033.

                                                   ...APPELLANTS
(BY SRI CHETHAN A. C., ADVOCATE)
AND:

1.   NIL

                                                  ...RESPONDENT
     THIS MFA IS FILED UNDER SECTION 47(A) GUARDIAN
AND WARDS ACT, AGAINST THE JUDGMENT AND DECREE
DT.27.10.2022 PASSED IN G AND WC NO.25002/2022 ON THE
FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE,    MAYO   HALL   UNIT,  BENGALURU,    (CCH-22),
DISMISSING THE PETITION FILED UNDER SECTION 8(2) OF
HINDU MINORITY AND GUARDIANSHIP ACT.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:
                           JUDGMENT

The parties to the proceedings are referred to as per their

designation before the trial Court.

2. The petitioners are impugning the order dated

27.10.2022 in the proceeding before the XIII Addl. City Civil

Mayohall Unit, Bengaluru in G&WC No.25002/2022.

MFA No. 553 of 2023

3. The petitioner No.1 is minor and his parents are

Christians. It appears that the mother of petitioner No.1 Manju

@ Magdaleen was a Hindu and later converted as a Christian.

The petitioners No.2 and 3 are also minors and they are

represented by their respective natural guardians. The

petitioners No.2 and 3 are Hindus.

4. The petitioners No.1 to 3 represented by their

natural guardians filed the petition invoking Section 8(5)(c) of

the Hindu Minority and Guardianship Act, 1956 ('Act of 1956'

for short). The trial Court noticing that the Act of 1956 is not

applicable to petitioner No.1,has treated his petition as one

under the Guardians and Wards Act, 1890 and the petition filed

by the petitioners No. 2 and 3 as the petition under the Act of

1956.

5. The petitioners sought permission from the Court to

alienate the petition properties. Hence, the appeal by petitioner

No.1 is treated as an appeal under Section 47(a) of The

Guardians and Wards Act, of 1890 and the appeal by the

remaining two petitioners is treated as one under Section

8(5)(c) of the Act of 1956.

MFA No. 553 of 2023

6. The brief facts necessary for the adjudication of the

case can be summarised as under:

7. One Lakshmaiah was the owner of the schedule

properties described in the petition. Lakshmaiah was a bachelor

and he executed a Will dated 22.09.1994. Under the said Will,

a prior interest is created in favour of the children of his

brother's son Muniraju, namely Manju, Srinivas and Devi. The

Will further stipulated that Muniraju shall be the guardian of his

children during their minority and the khata in respect of the

said properties bequeathed under the Will be changed in the

names of his minor children referred to above after they

attaining majority. The Will further stipulates the properties will

be inherited by the children of the said Manju, Srinivas and

Devi after the demise of the testator. The Will further

stipulated that Manju, Srinivas and Devi shall not have the right

to alienate the properties bequeathed.

8. The Lakshmaiah died on 22.7.1995. It is stated that

petitioner No.1 is the son of Manju. Petitioner No.2 is the son of

Srinivas and the petitioner No. 3 is the daughter of Devi. The

MFA No. 553 of 2023

petitioners No. 1 to 3 were aged 13, 1 and 5 years respectively

when the petition was filed.

9. It is the case of the parents of petitioners that they

are the natural guardians appointed under the Will and are

extremely poor and they do not have funds for the education of

the petitioners. It is further stated that properties have to be

sold to generate the funds to raise and educate the petitioners

and the petition is filed seeking permission to alienate the

properties bequeathed under the Will referred to above. The

natural guardians urged that the properties surrounding the

petition properties are well-developed and the petition

properties are likely to be grabbed by land mafia.

10. There are no respondents to the petition. After the

publication of the citation, none appeared and objected to the

petition. The trial Court recorded the evidence of the mother of

petitioner No.1, who is examined as P.W.1. Ten documents are

marked. After hearing the parties, the Court concluded that no

grounds are made out and dismissed the petition. Being

aggrieved by the aforementioned order, the petitioners are

before this in appeal.

MFA No. 553 of 2023

11. Learned counsel for the petitioners submitted that

the trial Court has misconstrued the Will produced by the

petitioners. He contends that the petitioners No.1 to 3 are the

owners of the properties under the Will dated 22.09.1994

executed by Lakshmaiah. That being the position, the guardian

of the petitioners can alienate the properties for legal necessity

and for the benefit of the minors. It is urged that the guardians

of the petitioners No.1 to 3 have no means to pursue the

education and they have sought permission of the Court to

alienate the properties for the benefit of the minor petitioners.

He contends that the enough evidence is placed to establish the

necessities to sell the properties. It is his contention that the

intended sale is for the benefit of the minors and the trial Court

committed a serious error in dismissing the petition and

refusing permission to alienate the properties.

12. We have considered the contentions raised at the

bar. Perused the materials available on record including the

judgment.

13. The points for considerations are:

MFA No. 553 of 2023

(a) Whether the guardians of the petitioners No.1 to 3 can alienate the petition properties?

(b) Whether the trial Court is justified in dismissing the petition holding that grounds are not made out to allow the petition granting permission to alienate the petition properties?

14. This Court has perused the Will dated 22.9.1994. In

terms of the said Will, the testator bequeathed the properties in

favour of Manju, Srinivas and Devi the children of the testator's

brother's son, Muniraju. The relevant clauses in the Will read

as under:

"1.xxxxxx

xxxxxxx Even the said three children 1. Manju, 2.Srinivasa, 3.Devi, to whom I have bequeathed the schedule properties is (sic) not entitled to sell or convey the schedule properties after attaining the majority.

2. The said schedule properties should go to the said Manju, Srinivas and Devi's children after my death".

MFA No. 553 of 2023

15. The trial Court has considered the aforementioned

clauses in the Will and has concluded that Manju, Srinivas and

Devi to whom the properties are bequeathed are not entitled to

alienate the properties and the properties should go to the

children of Manju, Srinivas and Devi after the demise of the

testator. In other words, the properties are bequeathed in

favour of children of Manju, Srinivas and Devi by creating a

prior interest in favour of Manju, Srinivas and Devi who will be

holding the properties on behalf of the children to be born. This

being the position, it is apparent that Manju, Srinivas, and Devi

do not have absolute rights over the property, they have a

limited right over the properties and they hold the properties in

Trust on behalf of the children to be born to them. Petitioner

No.1 is the son of Manju and petitioner No. 2 is the son of

Srinivas and the petitioner No. 3 is daughter of Devi. The

petitioners No.1 to 3 are the joint trustees under the Will. The

question is whether their guardians can alienate the petition

properties of the petitioners who are the trustees.

16. The Trial Court has held that the guardians of the

petitioners cannot alienate the properties as there is restraint in

the Will. The restraint in the Will dated 22.09.1994, is to be

MFA No. 553 of 2023

understood in the context. The restraint against alienation

incorporated in the Will is only to emphasise the fact that

Manju, Srinivas and Devi have only a limited interest in the

properties and they will be holding the properties in trust. The

said restraint clause cannot be interpreted to say their power to

alienate the properties, as the guardians of the legatees, is

taken away. Such a restraint is contrary to law. However, the

power of the minor guardian to alienate the properties is not

unfettered. The Courts will permit the guardians to alienate the

property of a minor only if the alienation is for the benefit of a

minor. Thus, the Court has to consider whether the persons

seeking the permission of the Court to alienate the minors'

properties have made out the grounds.

17. Admittedly, there are two properties, they are

residential houses. The value of the properties is not specified.

Petitioner No.1 is aged 13 and the petitioner No.2 is aged 2

years and the petitioner No. 3 is aged 5 years. Though the

guardians made a claim that they are unemployed, it is not

mentioned as to what is their income. The guardians of the

minor petitioners No.1 and 3 are the mothers. The guardian of

petitioner No. 2 is the father. The income and occupation of the

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MFA No. 553 of 2023

father of the petitioners No.1 and 3 is not disclosed. Nothing is

stated about the income of petitioner No.2. Though it is stated

that the petitioner No.1 is studying in 8th standard and the

petitioner No.3 is studying in nursery, no evidence is produced

to show the school expenses. It is not stated as to where

petitioner No. 3 is studying.

18. The petitioners have not stated as to what is the

expenditure needed for education of the children and how much

the shortfall is taking into their income. The value of the

properties to be sold is not disclosed. It is also not stated that

for what value they intend to sell the properties. The guardians

who seek the permission of the Court have stated that they

have no means to provide for educational expenses. Since

petitioners are stated to be studying in 8th standard and

nursery, the claim to sell the two sites for the purpose of

education does not impress the Court. The Trial Court in terms

of the impugned order has held that it is the duty of the

guardian of the children to provide education for the children

and no materials are placed to show that the guardians of the

petitioners are unable to provide education to the petitioners.

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MFA No. 553 of 2023

19. It is also required to be noticed that in paragraph 16

of the impugned judgment, the trial Court has held that there is

no material to hold that the guardians are unable to protect the

properties in question and the same is in danger of being

grabbed by the land mafia. The testamentary guardians are

under obligation to protect the interest of the beneficiaries

named in the Will. No complaint is filed against the persons who

are allegedly making attempt to encroach the properties.

20. Since the Court is considering the petition seeking

permission to alienate the properties of the minors, the Court

has to keep interest of the minor as a paramount consideration.

Absolutely nothing on record to justify as to why both the

immoveable properties are to be sold for the purpose of

education of the minors who are said to be studying only in 8 th

standard and nursery. It is also not stated as to whether they

will be left with any other property after the sale of the

properties. For these reasons this Court is of the view that no

grounds are made out to allow the appeal.

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MFA No. 553 of 2023

21. Accordingly, the appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

BRN