Orissa High Court
(An Appeal Under Section 47 Of The ... vs Collector on 2 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
GUAP No.2 of 2023
(An Appeal under Section 47 of the Guardians and
Wards Act, 1890)
Mamata Paramaguru .... Appellant
Mr. Dipti Ranjan Bhokta, Advocate
-versus-
Collector, Khordha .... Respondent
Mr. Baibaswata Panigrahi,
Additional Standing Counsel
Heard and disposed of on 2nd May, 2023
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CORAM:
JUSTICE K.R. MOHAPATRA
JUDGMENT
K.R.Mohapatra, J
1. This matter is taken up through Hybrid mode.
2. This appeal has been filed assailing the order dated 25th
January, 2023 (Annexure-6) passed by learned District Judge,
Khurda at Bhubaneswar in Gua(P) No.12 of 2022, whereby
an application under Section 11 of the Guardians and Wards
Act, 1890 (for short, 'the Act'), has been dismissed.
3. Mr. Bhokta, learned counsel submits that Appellant is the
mother guardian of two minor children, namely Mayaan
Paramaguru (son) and Roshni Bharadwaj (daughter). The
property in question, i.e., Plot No.811/4033 under Khata
No.703/3767 in Chaka No.268 measuring an area Ac.0.019
decimal and Plot No.813/4034 under aforesaid Khata in
SASANKA Digitally signed Chaka No.270 to an extent of Ac.0.036 decimal (total
by SASANKA
SEKHAR SEKHAR
SATAPATH SATAPATHY Ac.0.055 decimal) situated in mouza Dumuduma under
Date: 2023.05.05
Y 19:09:42 +05'30'
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Bhubaneswar tahasil in the district of Khordha (for short,
'the case land') was purchased by the deceased husband of
the Appellant, namely, late Shakti Paramaguru and after his
death, the case land has been recorded in the name of the
Appellant and her two minor children and ROR has already
published in the name of the Appellant as well as the minor
children (Annexure-4). After untimely death of her husband,
the Appellant is facing immense difficulties to upkeep and
maintain the children and meet with their expenditure for
education. Finding no other alternative, the Appellant made
an application under Section 11 of the Act for grant of
permission before learned District Judge, Khurda at
Bhubaneswar to sell the case land for welfare of the children
and her maintenance. All relevant documents in support her
case were produced before learned District Judge. Learned
District Judge, while adjudicating the petition, i.e., Gua (P)
No.12 of 2022, held that her minor daughter is studying
Std.VII and the minor son is studying in Std.III at DPS,
Kalinga. As such, it appears that there is no legal necessity to
alienate minors' share of the case land. Accordingly, the
petition under Section 11 of the Act was dismissed.
3.1 It is submitted by learned counsel for the Appellant that
before death of her husband, the minor children were
prosecuting their study at DPS, Kalinga. As a mother, it is
her duty to see that the children should get better education.
It is further submitted that the Appellant does not have any
independent source of income. Thus, only because her
children are studying at DPS, Kalinga, it cannot be presumed
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that the Petitioner has sufficient means of livelihood and
there is legal necessity to alienate the case land.
3.2 It is his submission that in similar nature of cases, Delhi
High Court in Jageet Kaur Vs. State (FAO No.155 of
2013 disposed of on 25th February, 2014) and the High
Court of Judicature at Madras in Naveetha Vs. Mohamed
Nahub Basha (CMA No.1577 of 2016 disposed of on 3rd
August, 2016) have granted permission to the mother of
the minor children to alienate the property by making
certain arrangements. He, therefore, submits that the
Appellant should be permitted to alienate the case land
protecting the interest of the minor children.
4. Mr. Panigrahi, learned ASC submits that admittedly the
Appellant does not have any independent source of
income, but learned District Judge, holding that the minor
children of the Appellant are studying in DPS, Kalinga,
opined that there is no legal necessity to alienate the case
land. The same may not be correct in all circumstances.
But while adjudicating a petition under Section 11 of the
Act, learned Court should examine the matter with
circumspection and be careful to see that the property and
the interest of the minor children is not affected by the
permission for alienation and the alienation is for the
welfare of the children. He, therefore, submits that the
Appeal may be disposed of in accordance with law.
5. Taking into consideration the rival contentions of the
parties and that the Appellant does not have any
independent source of income, this Court is of the
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considered opinion that keeping the property idle with the
Appellant without any income there from, will be
beneficial for none. It should be utilized in a manner which
will be for the welfare of the minors and also meet the
legal necessities of the Appellant. As such, permission
under Section 11 of the Act should be granted with certain
conditions to sell the case land. Accordingly, the impugned
order is set aside.
6. The appeal is allowed directing that learned District Judge,
Khurda at Bhubaneswar shall allow the Appellant to sell
the case land. 2/3rd of the sale consideration shall be kept
in fixed deposit in any Nationalized Bank till the minor
children, namely, Mayaan Paramaguru (son) and Roshni
Bharadwaj (daughter) attain majority and interest accrued
there from shall be spent for the welfare of the children.
The Appellant may utilize rest 1/3rd of the sale
consideration for her day-to-day requirements as well as
for upkeep, maintenance and education of the minor
children. It is further directed that in case of any exigency
for utilization of the deposited amount in favour of the
minor children, the Appellant is at liberty to move the
competent Court for appropriate direction. Learned District
Judge, Khurda may also pass necessary orders to monitor
the utilization of the sale proceeds.
Urgent certified copy of the judgment shall be granted on
proper application.
(K.R. Mohapatra)
Judge
s.s.satapathy
