Solaman vs Sobi And Others
2021 Latest Caselaw 3488 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                       &

                     THE HONOURABLE MR.JUSTICE C.S.DIAS

           MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                             MFA.No.122 OF 2011

APPELLANT/S:

                SOLAMAN, VALIKKODATH VEETTIL, CHELAKKARA VILLAGE,
                THALAPPILLY TALUK, THRISSUR DISTRICT.

                BY ADVS.
                SRI.P.B.KRISHNAN
                SRI.N.AJITH
                SMT.GEETHA P.MENON
                SRI.R.SURAJ KUMAR

RESPONDENT/S:

       1        SOBI AND OTHERS, CHALISSERY ANGADI, KAVUKKOD AMSOM DESOM,,
                CHALISSERY VILLAGE, OTTAPALAM TALUK.

       2        MOBI SO.VARIKKODETH DR.KURIAN
                CHALISSERY ANGADI, IN DO. DO.

       3        KUNHUKUNHAN.T.K., S/O.THOLATH LATE KUNHAPPAN, CHALISSERY
                ANGADI,, KAVUKKOD AMSOM DESOM, CHALISSERY VILLAGE,,
                OTTAPALAM TALUK, NOW RESIDING AT THOLATH HOUSE,, NEAR
                ST.PETER & ST.PAULS CHURCH, T.K

       4        BOSE.T.K. SO.THOLATH LATE KUNHAPPAN
                CHALISSERY ANGADI, KAVUKKOD AMSOM DESOM,, CHALISSERY
                VILLAGE, OTTAPALAM TALUK, NOW RESIDING, AT THOLATH HOUSE,
                NEAR G.H.S.S., CHALISSERY,, PALAKKAD DISTRIC

       5        SAJI.T.K. SO.THOLATH LATE KUNHAPPAN
                CHALISSERY ANGADI, KAVUKKOD AMSOM DESOM,, CHALISSERY
                VILLAGE, OTTAPALAM TALUK, NOW RESIDING, AT THOLATH HOUSE,
                GUDDU TRADERS, KADAVALLUR.P.O., KALLUMPURAM

       6        RAJU.T.K. SO.THOLATH LATE KUNHAPPAN
                CHALISSERY ANGADI, KAVUKKOD AMSOM DESOM,, CHALISSERY
                VILLAGE, OTTAPALAM TALUK, NOW RESIDING, AT MENACHERY
                APARTMENT, BISHOP PALACE ROAD,, THRISSUR.

                R1-2 BY ADV. SRI.P.K.SAJEEV
                R3-6 BY ADV. SRI.T.KRISHNAN UNNI SR.
                R3-6 BY ADV. SRI.P.K.MOHANAN, PALAKKAD

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MFA.No.122/2011                        2




                                 JUDGMENT

Dated this the 1st day of February 2021

A.Muhamed Mustaque, J.

This appeal is filed challenging the order of the

District Court, Palakkad in an application filed by

the parents of minor, namely, Mary Ammini @ Siya Mobi

seeking appointment of her father as a guardian and

permission to transfer by sale of half share of the

minor in the petition schedule property. Ext.B1 is an

agreement entered into between the mother of the

Ward, the first petitioner before the District Court,

namely, Sobi with her brothers, who are respondents 3

to 6 herein. Admittedly, the minor is having half

share in the property mentioned in Ext.B1 agreement.

The total extent of the property is 2.68 Acres.

2. Ext.A12 is the settlement deed executed by

Aani in favour of Sobi-mother and Ward. As per

Ext.B1, the property belonging to respondents 3 to 6

is covered by Ext.B2 having an extent of 67 cents is

to be exchanged in favour of mother and Ward. It is

to be noted that in regard to the exchange,

respondents 3 to 6 have performed their part of the

contract; that means, they executed the deed in

favour of mother and Ward in anticipation of

execution of conveying the right of mother and Ward

in respect of the property covered by Ext.A12. One of

the stipulations in Ext.B1 agreement is that

permission has to be obtained from the District Court

for conveying the right of the minor. It is based on

this, the aforesaid petition was filed by the parents

before the District Court, Palakkad.

3. The appellant-Solaman was not a party to the

proceedings. He got himself impleaded in the

proceedings. He was arrayed as supplemental 5th

respondent. He raised objections. According to him,

such transfer is not in the best interest of the

minor child. Solaman is the brother of father of the

Ward.

4. The District Court, after adverting to the

Commission Report and all materials, allowed the

petition and appointed the father of the Ward as a

guardian and also gave permission to transfer half

share of the minor to respondents 3 to 6 in exchange

of the property already transferred by Ext.B2

document.

5. We heard Sri.P.B.Subramanian, the learned

counsel appearing for the appellant, Sri.P.K.Sajeev,

the learned counsel appearing for respondents 1 and 2

and Sri.T.Krishnan Unni, the learned senior counsel

appearing for respondents 3 to 6.

6. The learned counsel appearing for the

appellant strenuously tried to impress on us on his

submission contending that the transfer is not

beneficial to the minor. According to him, the

Commissioner had reported the value of both

properties and there is a huge disparity between the

value of the property conveyed to minor and to be

conveyed to respondents 3 to 6. It is further

submitted that the District Court gave permission,

without adverting to the fact that the transferrees

are the brothers of the mother of the Ward.

7. The learned senior counsel appearing for

respondents 3 to 6 would submit that respondents 3 to

6 have performed their part of contract and as per

the agreement, respondents 1 and 2 in this appeal are

bound to obtain permission from the District Court.

It is submitted that a running business is also being

transferred to the minor along with immovable

properties. It is submitted that the property to be

transferred to the minor also consists of two storied

building having 3500 square metres.

8. The property sought to be conveyed is by the

natural guardian. The permission under the Guardians

and Wards Act, 1890 (for short, the Act) would be

required under Section 30, only if such guardian is

appointed as guardian by the court. The parties are

Christians. No such permission is required for the

Christian under the Act to obtain permission from the

court for the disposal of the immovable property of

the minor. The parties might have approached the

District Court as they bound by the agreement. In

such circumstances, the District Court granted

permission, taking note of the various attending

circumstances and welfare of the child. The Division

Bench of this Court in Jince Mary Johns v. Johny

[2011 (4) KLT 533] clearly laid down the law in

regard to seeking permission for the disposal of

immovable properties. It was held that only when a

person is declared by the court as a guardian, such

permission is required to be obtained from the court.

9. The property of the minor is being disposed

in exchange of another property. Merely because there

are some differences in the valuation, the court

cannot now hold that such a transfer is against the

welfare of the Ward. It is always open for the minor

to question such transfer on attaining majority. We

do not find any reason for questioning such

permission by the paternal uncle of the Ward, who

himself got impleaded, pending the proceedings before

the District Court. Therefore, this appeal is only to

be dismissed. Accordingly, it is dismissed. There

will be no order as to costs. All pending

interlocutory applications are closed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

ln