Madras High Court
T.V.Chandresh vs Unknown on 27 June, 2023
C.M.A.No.1319 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2023
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1319 of 2023
V.Nalini
Repreented as mother and natural guardian
for hier minor sons
1.T.V.Chandresh
2.T.V.Yogesh ... Appellant
PRAYER:- This Civil Miscellaneous Appeal has been filed under Section
47 of the Guardians and Wards Act, 1890, praying for set aside the
judgment and decree passed in H.M.G.O.P.No.8 of 2022, dated 12.08.2022
on the file of the Principal District Judge at Tiruvallur.
For Appellant : Mr.G.V.Sridharan
JUDGMENT
The above captioned Civil Miscellaneous Appeal has been filed
challenging the order passed by the learned Principal District Judge,
Tiruvallur in H.M.G.O.P.No.8 of 2022, dated 12.08.2022. The petitioner
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C.M.A.No.1319 of 2023
had filed a petition under Section 8(2) of Hindu Minority and
Guardhianship Act, 1956 to appoint herself as guardian of her two minor
children and grant permission to her to sell the petition schedule mentioned
property.
2. The Learned Judge after taking evidence in the said petition
allowed the petition and directed the petitioner to deposit 2/3 rd of the sale
consideration, namely Rs.28,22,132/- (Rupees Twenty Eight Lakhs Twenty
Two Thousand One Hundred and Thirty Two only) out of Rs.42,33,200/-
(Rupees Forty Two Lakhs Thirty Three Thousand Two Hundred only) in
the name of the minor wards in any Nationalised Bank till the date of the
two minor children attaining majority.
3.The Learned counsel appearing on behalf of the appellant would
submit that the appellant had produced the loan account statement issued by
the ICICI Bank, which discloses that the said schedule mentioned property
was mortgaged and there is a loan amount of Rs.26,10,400/- (Rupees
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C.M.A.No.1319 of 2023
Twenty Six Lakhs Ten Thousand and Four Hundred only) due to the Bank.
Therefore, the learned counsel would submit that the direction to deposit a
sum of Rs.28,00,000/- (Rupees Twenty Eight Lakhs only) cannot be
complied with. The learned counsel submitted that the value of the property
has to be calculated after deducting the loan amount.
4.There is force in the submission made by the learned counsel for the
appellant. It is seen from the order passed by the learned Judge that the
appellant had marked Ex.P7, the copy of the Memorandum of Deposit of
Title Deed executed by the appellant's husband in favour of ICICI Bank.
Ex.P9 is the loan account statement issued by the ICICI Bank. In such
circumstances, the actual value of the asset in the hands of the appellant and
her two minor sons would be the Sale consideration minus the loan amount.
Therefore, the appellant cannot be expected to deposit a sum of
Rs.28,22,132/ (Rupees Twenty Eight Lakhs Twenty Two Thousand One
Hundred and Thirty Two only) as directed by the learned Judge. Hence, the
appeal is disposed of with the following directions:
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C.M.A.No.1319 of 2023
(a)The direction to deposit a sum of Rs.28,22,132/- is
set aside and the matter is remanded back to the learned
Principal District Judge, Tiruvallur.
(b)The appellant is further directed to produce proof
for the actual amount due under the mortgage as on date,
before the learned Judge.
(c)Thereafter, the learned Judge may direct the
appellant to deposit 2/3rd of the amount derived after
deducting the loan amount from the sale consideration in
the name of the minor children and pass such other order as
deemed fit.
5.With the above directions, the above captioned Civil Miscellaneous
Appeal is ordered accordingly. No costs.
03.07.2023
gba
Index : Yes/ No
Speaking order: Yes/ No
Neutral Citation: Yes/ No
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C.M.A.No.1319 of 2023
SUNDER MOHAN,J.
Gba
C.M.A.No.1319 of 2023
03.07.2023
https://www.mhc.tn.gov.in/judis
