Orissa High Court
Guardians And Wards Act vs Arpita Sahoo & on 12 November, 2024
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
GUAP NO.15 of 2023
(In the matter of application under Section-47 of the
Guardians and Wards Act, 1890).
Mamata Kumari ... Appellants
Sahoo & Others
-versus-
Arpita Sahoo & ... Respondents
Another
For Appellant : Mr. B. Bhuyan, Advocate
along with Mr. L. Mishra,
Advocate (A-3)
For Respondents : Mr. A. Mishra, Advocate
(R-1)
Mr. B.P. Nayak, AGA
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:12.11.2024(ORAL)
G. Satapathy, J.
1. This appeal U/S.47 of the Guardians and
Wards Act, 1890 (in short, "the Act") by the
appellant is directed against the order dated
16.09.2023 passed in GUA(P) No.08 of 2022 by which
the learned District Judge, Khurda at Bhubaneswar
declined to appoint the appellant No.1 as a guardian
for the interest of her minor sons and daughters-cum-
appellant Nos.2 to 4 in the scheduled property in an
application U/Ss.7 & 10 of the Act and consequently,
permit her to execute and register sale deed in respect
of the share of the minors appellant Nos.2 to 4.
It needs to be stated here that during the
pendency of this appeal, appellant No.3 has attained
majority and has entered appearance through her
counsel Mr.Bibekananda Bhuyan by directly filing
Vakalatnama in the Court today which is taken on
record.
2. The facts in precise are that one Arun Kumar
Sahoo, who was the husband of the appellant No.1
and father of appellant Nos.2 to 4 and respondent
No.1, died on 27.02.2020 leaving behind him a piece
of land in Plot No.5 in Khata No.611/ 3811 of Mouza-
Bhubaneswar Sahar Unit No.41, Chandrasekharpur,
PS- Chandrasekharpur, Tahasil- Bhubaneswar, Kisam-
Kolatha measuring an area of Ac.0.450dec. It is stated
that appellant Nos.2 to 4 are the students studying in
school and college, whereas respondent No.1 is now
married. According to the appellants, appellant No.1
being a housewife is practically facing a lot of difficulty
in maintaining and bearing the expenses of her sons
and daughters and she had incurred loans for the
marriage of respondent No.1. In such premises, when
appellant Nos.2 to 4 were minors and respondent No.1
was the unmarried major daughter, the appellant No.1
as the petitioner filed an application U/Ss.7 & 10 of
the Act before the learned District Judge, Khurda at
Bhubaneswar by impleading respondent No.1 as OP
No.1 and the Collector, Khurda as OP No.2 praying to
appoint her as a guardian of the minors in respect of
their interest in the scheduled land for the purpose of
selling it by executing and registering a sale deed on
the ground that she needs money for the purpose of
maintaining the children, expenses for their higher
education, marriage expense of major daughter-
respondent No.1 and to repay the loan of late Arun
Kumar Sahoo.
Accordingly, the application of the appellant
No.1 was registered as GUA Petition and the learned
District Judge, Khurda at Bhubaneswar proceeded with
the matter by taking the evidence. After closure of
evidence, the learned District Judge on analysis of
evidence on record returned with a finding that the
necessity of the appellant No.1 can be managed by
selling away the share of the appellant No.1 and
respondent No.1 and accordingly, declined to appoint
appellant No.1 as guardian for the interest of the
minor children to sell their shares, out of the
scheduled property. Being aggrieved, the appellant
No.1 has preferred this appeal by inter alia criticising
the impugned order on the score that it is not for the
welfare of the minor children.
3. In the course of hearing of this appeal, Mr.
Bibekananda Bhuyan, learned counsel appearing along
with Mr.Lalitendu Mishra, learned counsel for the
appellants vehemently submits that the learned
District Judge, Khurda at Bhubaneswar has committed
gross illegality by not appointing appellant No.1 as a
guardian for the property of the minors to alienate the
land for the purpose of securing higher education and
other educational expenses of the children together
with the loan incurred by the appellant No.1 for
conducting marriage of respondent No.1 and,
therefore, the impugned order being not in the interest
of justice, liable to be interfered with. Further, Mr.
Bhuyan submits that the learned District Judge should
have appointed the mother of the children as
guardian to alienate the scheduled property for the
best interest and welfare of the children, but he has
declined to appoint the appellant No.1 as guardian to
deprive the appellant No.1 to provide better education
to the minor children as well as to keep her as a
defaulter of loan incurred for the purpose of marriage
of respondent No.1. Mr. Bhuyan by relying upon the
decision rendered in Mamata Paramaguru vs.
Collector, Khordha; GUAP No.02 of 2023 disposed
of on 2nd May, 2023 submits that while deciding an
application for appointment of guardian for the
property of minor, the welfare of the children is
paramount consideration, but in this case permitting
the appellant No.1 to alienate the land would be for
the best welfare of the children in providing better
education as well as repaying the loan incurred by the
appellant No.1 for the expenses of marriage of
respondent No.1. Further, the decision in Saugat
Satpathy & Another vs. Collector, Khurda &
Another; FAO No.17 of 2024 disposed of on
05.03.2024 is also relied upon on behalf of the
appellant No.1 to allow the appeal.
On the other hand, Mr. Anoop Mishra, learned
counsel appearing for respondent No.1 supports the
contention as advanced by Mr. Bhuyan and inter alia
submits that respondent No.1 has got no objection if
the appellant No.1 is appointed as a guardian for the
property of the minors.
Further, Mr. B.P. Nayak, learned AGA submits
that admittedly the property belongs to the deceased-
Arun Kumar Sahoo, who was the husband and father
of appellant Nos.2 to 4 and respondent No.1, but
allowing the appellant No.1 to sell away the scheduled
land would not be in the interest and welfare of the
minors, since the scheduled property is a valuable
piece of land and it would fetch more money in future,
but the admitted averments of the appellant No.1
either in this appeal or in the petition before the
learned District Judge, Khurda at Bhubaneswar does
not disclose any real exigency of selling away the land.
It is further submitted by him that it is not prudent to
believe without any material to the effect that the
property in question is required to be sold for the
expenses of minor children for their higher education
and marriage of respondent No.1. Accordingly, Mr.
B.P. Nayak, learned AGA prays to dismiss the appeal.
4. After having bestowed an anxious and careful
consideration to the rival submissions, it is no more in
dispute that the Court on being satisfied can appoint a
guardian for the property of the minor provided the
same is for the welfare of such minor. Thus, the order
appointing a guardian for the property of the minor is
dependent upon the satisfaction of the Court as to the
welfare of minor child/children and the Court,
therefore, has to remain in guard to protect the
welfare of the minor child while dealing with an
application for appointing the guardian of the minor in
respect of its property. In this case, the appellants in
an application before the learned District Judge have
only taken the ground that after death of her husband
Arun Kumar Sahoo, appellant No.1 being a complete
housewife is unable to maintain her family and
children, but the children are reading in schools and
for their higher education, adequate fund is required.
In addition, it is also stated that since respondent No.1
has attained marriageable age, good amount of money
is required to meet the expenses for her marriage. It
is, therefore, clear that the appellants have taken two
grounds for alienating the scheduled land by way of
seeking an order from the learned District Court to
appoint appellant No.1 as a guardian of the minor
children for their interest in the scheduled land and
such two grounds are; (i) the expenses required for
higher study of the children and (ii) marriage expenses
of respondent No.1, but the appellants have taken
additional averments to repay the hand loan taken by
the late husband of appellant No.1 in this appeal which
is unacceptable inasmuch as, if the same was a fact,
what prevented the appellants not to aver such fact in
their application before the learned District Judge.
5. It might be a fact that in the meanwhile
respondent No.1 might have got married, but no
specific document has been produced to evidence that
appellant No.1 has incurred expenses or taken loan for
the marriage of respondent No.1. Merely by averring
in the appeal memo that the appellant no.1 has
borrowed a sum of Rs.12,00,000/- from the friends
and relatives for the marriage of respondent No.1 is
inconsequential in absence of any valid document.
Similarly, the ground as advanced by the appellants
for seeking Rs.30,00,000/- for the medical education
of appellant No.3 appears to be imaginary and bereft
of any document and the same is on no basis because
it is never averred that appellant No.1 has been
selected to take admission in MBBS course or any
medical course.
6. It is, however, pleaded and advanced in the
application for seeking appointment of appellant No.1
as a guardian of the minor's property that adequate
fund is required for the higher education of the minor
children and marriage expenses of respondent No.1,
but the admitted evidence on record discloses that
appellant Nos. 2 and 4 are reading in the school i.e.
Saraswati Sishu Vidya Mandir, Niladri Vihar,
Bhubaneswar in Class-VI & Class-X respectively.
Similarly, it is stated that appellant No.3, who has
become major in the meanwhile was reading in +2
Science, but no specific requirement of these three
children was either stated in the application or was
any document exhibited to show the expenses
required for their higher education. Whatever
expenses is required for their higher education can be
well adjusted by the sale of the share of appellant
Nos.1, 3 and respondent No.4, because the total
approximate value of the scheduled land as assessed
by the learned District Judge is Rs.1 Crore then. What
would be the exact and precise factors for the welfare
of the minor(s) can be well considered by having due
regard to the age, sex and requirement of such
minor(s) and what would be the best interest for such
minor(s) is paramount consideration in considering an
application for appointing guardian for the minor(s) in
respect of its property, especially when such
appointment of guardian is purely meant for alienation
of minor's interest in land. In this case, what was the
exact requirement of the minor children for higher
education has neither been pleaded nor was being
established, rather it seems that the application was
purely for according permission for alienation of land.
In a circumstance bereft any established reason, the
Court should not appoint anyone as a guardian of the
minor for its property merely because it is averred in
the application that adequate amount is required for
higher education of the children which can be made
out from sale of the interest of the children. In
absence of any real and legal evidence showing
pressing need for expenses towards higher education
of children, the sale of interest of the minor in the land
succeeded by it cannot be considered for the welfare
of such minor and the same assumes great
significance, when the valuation of the land is probably
nearabout Rs.1 Crore and 3/5th of the interest therein
can be alienated without any permission.
7. It is, however, considered appropriate to refer
to the submission of the learned counsel that no one
would come forward to purchase the interest in a
property because of the expectation of litigation, but
such a narrow interpretation cannot be made, because
the appellant No.1 could have worked out for the
partition of the scheduled land to meet the exigency
by approaching appropriate forum either the Civil
Court or Revenue Authority inasmuch as in that event,
the interest of the minors can be safeguarded which is
the paramount consideration for the welfare of the
minor children, instead of giving permission to sale of
the entire land in the guise of appointing the widow
mother as a guardian of the minor children for the
purpose of selling away the interest of minor children.
Further, accepting the valuation of the land as
assessed by the learned District Judge at Rs.1 Crore,
the share of the major share holders in the said
property would come to Rs.60 lakhs which would be
sufficient for the needs of the appellants in the
circumstance.
8. At this juncture, it is considered appropriate to
refer to the decision relied on by the appellants, but it
appears that the decision in Mamata Paramaguru
(supra) being factually rendered on different context,
cannot be made applicable to this case, inasmuch as
the minor children therein were prosecuting their
study at DPS, Kalinga where hefty amount is required
for the education of the children, but in this case, the
minor children of appellant No.1 are reading in
Saraswati Sishu Vidya Mandir where minimum amount
is required for prosecuting studies. Similarly, the
decision in Saugat Satpathy (supra) is a decision
rendered in the matter relating to Hindu Minority and
Guardianship Act, 1956, but in this case, there is
absolutely no averment that the scheduled property in
question is a joint undivided family property nor was
any averment taken to the effect that the parties are
Hindus and governed by Hindu Succession Act. It is,
however, observed by this Court in Saugat Satpathy
(supra) at paragraph-10 that the parties are Hindus
and they have the joint ownership over the suit
property including the minor child, seeking permission
under Section 8(2) of Hindu Minority and Guardianship
Act, 1956 is not necessary. Admittedly, in the present
case, no permission U/S.8(2) of the aforesaid Act is
sought for, rather the appellant No.1 has made
application U/S. 7 & 10 of the Act and that too,
without averring a single word about they being
governed by Hindu Succession Act.
9. In view of the aforesaid discussions and on a
conspectus of the impugned order, this Court does not
find any error apparent on the face of the impugned
order by which the appointment of appellant No.1 as a
guardian of the minor children for the purpose of sale
of minors' interest in the property has been refused,
but it is clearly observed therein that the sale of the
share of the appellant No.1 and respondent No.1 will
serve the purpose, who are right now joined by the
share of appellant No.3 on being found to have
attained the majority in the meanwhile. In such
premises, the sale of entire land including the interest
of the minor children in the property is not for the
welfare of the minor children inasmuch as, the
property in question would fetch better value in future
and the interest of the minor children therein would
secure their better future. This Court, therefore, does
not consider it in the interest of welfare of the children
to interfere with the impugned order, but makes it
very clear that the major persons succeeding to the
scheduled property can alienate their share by way of
execution and registration of sale deed.
10. In the result, the appeal being devoid of any
merit stands dismissed on contest, but in the
circumstance, there is no order as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 12th day of November, 2024/S.Sasmal
Location: High Court of Orissa
