FATHIMA MEHARBAN v. BADARUDHEEN

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(Rupees seventy thousand only). At the time execution of agreement a sum of Rs.25,000/- (Rupees twenty five thousand only) was paid with a rider that the second defendant Sri.Muhammed Ameer-father would obtain a permission from the Court being the natural guardian for selling of the property. Petition was filed by the father before the Guardian Court for obtaining permission which was granted vide order dated 13.07.2007, despite that he did not come forward for execution but demanded more money. It is in that background, the Original Suit was filed. Defendant No.2 did not contest the suit but remained ex parte. However, the Court Guardian filed written statement and stated that it had no knowledge with regard to the settlement deed, agreement or sale consideration. Trial court framed the following issues:

1. Whether the plaintiff is entitled to get a decree for specific performance as prayed for?

2. Costs?

Plaintiff-respondent No.1 examined himself as PW1 and

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brought on record Exts.A1 and A5. Witness to the agreement for sale was none else but the wife of the second defendant- respondent No.2/mother of the appellant-first defendant. Trial Court on the basis of the evidence and the contents of the agreement which were admitted by second defendant, decreed the suit. Appeal was preferred by the mother acting as guardian which has also been dismissed and accordingly present appeal has been field.

4. Learned counsel appearing on behalf of the appellant submitted that the judgment and decree of the Court below suffer from illegality and perversity. The court below did not take into consideration that the father had totally acted against the interest of the minor and had no authority to sign the scheduled property except under legal necessity required under the Muhammedan law. Scheduled property was having an extent of 21.92 cents but agreed to be sold for a paltry sum of Rs.70,000/- (Rupees seventy thousand only). Agreement was the result of collusion between the parties, it is for that

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reason the father-natural guardian did not contest the suit. The suit was filed on 29.10.2009 which proved that respondent No.1-plaintiff was not ready and willing to perform his part of the agreement. Despite the fact that the permission from the Guardian Court was taken as far back as on 13.07.2007, the defendant No.1 in the civil suit when attained majority in 2019 instituted a Review Petition bearing No.488/2019 in O.P. (Guardian and Wards) No.66/2003 whereby permission granted on 13.07.2007 inter alia on the ground that she was minor at the time of the agreement and her father acted as natural guardian instituted an O.P. under Sections 7 and 29 of the Guardians and Wards Act. Though the Court after complying with the formalities allowed the petition, did not notice the fact that sale consideration between the plaintiff and natural guardian ie., defendant No.2 was in collusion as the property originally belonged to her mother who gifted the same. Knowledge of the decree dated 13.07.2007 was acquired when came to know about the Execution Petition

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bearing No.190/2018. Mandate of the provisions of Section 31 of Guardians and Wards Act has not been taken care of. Though Trial Court while condoning the delay, erroneously dismissed the review petition by noticing the fact that the mother was the natural guardian and there was compliance of provisions of Section 31 as necessity for sale of the property was mentioned in the agreement.

5. On the other hand, learned counsel for the respondent No.1-plaintiff argued that judgments and decrees of the Courts below are based upon the appreciation of evidence. The Guardian Court noticed the provisions of Sections 27 and 31 and examined the contents of the agreement. Wife was the witness to the agreement. She did not come forward at any point of time to take a different stand by disputing the contents of the agreement. For no reason the judgment and decree was assailed through her. Review petition filed by minor after he attained majority as per the provisions of Section 48 of Guardians and Wards Act, was not

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maintainable, the remedy lied elsewhere, i.e., by filing a suit. Though the Trial Court treated the application for review by exercising the power under Section 151 of the Code of Civil Procedure but found that there was no such error apparent on the record to form a different opinion while granting the permission on 13.07.2007 particularly the fact that it was the father who acted as natural guardian, not the guardian appointed under the orders of the Court.

6. We have heard the learned counsel for the parties and appraised the paper book.

7. Concededly, the contents of the agreement to sale dated 16.10.2003 has not been disputed by either of the parties viz. the signatures and its execution except that natural guardian could not have, without any necessity of minor, entered into an agreement. No ground or any plea has been taken that the execution of the agreement on behalf of natural guardian was outcome of fraud or misrepresentation. Not only this, the mother had witnessed the agreement. The

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cause of action to institute a suit arose only after permission on 13.07.2007 was granted by Guardian Court. There is specific pleading that plaintiff had been approaching the defendant for execution of the sale deed, which was not emphatically denied. Thus, readiness/willingness cannot be said to be wanting as the suit was instituted on 24.10.2009 much before expiry of period of three years. The only plea taken was that by that time the value of the property increased and defendant demanded extra money. Institution of review petition was only when the minor attained the majority on 09.03.2019.

8. Section 31 of the Guardians and Wards Act reads as under:

"31. Practice with respect to permitting transfers under section 29.—(1) Permission to the guardian to do any of the acts mentioned in section 29 shall not be granted by the Court except in case of necessity or for an evident advantage to the ward.

(2) The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions, if any, as the Court may

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see fit to attach to the permission; and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or, when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him.

(3) The Court may in its discretion attach to the permission the following among other conditions, namely:—

(a) that a sale shall not be completed without the sanction of the Court;

(b) that a sale shall be made to the highest bidder by public auction, before the Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court, subject to any rules made under this Act by the High Court, directs;

(c) that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs;

(d) that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs.

(4) Before granting permission to a guardian to do an act mentioned in section 29, the Court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof, and shall hear and record the statement of any person who appears in opposition to the application.

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9. On perusal of the above, it is evident that Court will not grant permission except in the case of necessity or if it is advantageous to the ward. Nothing has been pointed out that there was error in the order dated 13.07.2007 granting permission which was in defiance to the provisions of Section 31 of the Act. For the sake of brevity, relevant paragraph of the order dated 31.07.2007 reads as under:

"5. The Point: Ext. Al is the birth certificate showing that the date of birth of minor Fathima Meharban is 9/3/2001. Ext.A3 is the copy of the settlement deed No. 3434/2002 of S.R.O. Tirurangadi which shows that the petition schedule property belongs to the minor Fathima Meharban. Ext. A2 is the agreement for sale dated 16/10/2003 by which Badarudheen agreed to purchase the petition schedule property for Rs.70,000/-. In the affidavit filed by the petitioner it is stated that the sole consideration mentioned in Ext. A2 is reasonable. Since no income is derived from the petition schedule property, selling that property and depositing the sale consideration in fixed deposit in the name of minor will be beneficial to the interest of the minor. As the petitioner is the father of the minor, he can be permitted to sell the petition schedule property. In the result, this petition is allowed. Permission is granted the petitioner to sell the petition schedule property

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belonging to Fathima Meharban as per Ext. A2 agreement for sale. The petitioner is directed to deposit Rs.70,000/- in the name of the minor Fathima Meharban in fixed deposit till she attains majority in any nationalised bank. The petitioner is directed to produce the F.D. Receipt in court within two weeks after effecting the sale. The petitioner is directed to execute the sale deed within three months from this date. There is no order as to costs."

10. In the aforementioned proceedings, the Guardian Court complied with requirement of Section 11 of the Act. Third party affidavits of two persons were submitted and they were also examined. Only thereafter permission was granted with a condition to sell the property as per the agreement and deposit of the sale consideration till the minor attains majority and produce every receipt before the Court within two months after effecting the same. It is not the case of the review petitioner that there was defiance to the provisions of Section 27 as it deals with guardian appointed to manage the property under the aforementioned provisions. In the present case, sale was not effected by the Guardian but the father who was natural guardian. There was no misrepresentation or

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suppression of real facts. For the reasons aforementioned, we do not find any question of law is involved in the Regular Second Appeal for determination. Judgment and decree of the Trial Court and Appellate Court impugned in the RSA and the order of the Guardian Court rejecting the review petition, impugned in MFA (G&W) do not suffer from any illegality or perversity. R.S.A.No.515/2018 and MFA (G&W) No.19/2021 stand dismissed.

Sd/-

AMIT RAWAL

JUDGE

Sd/-

C.S. SUDHA

JUDGE

nak

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APPENDIX OF MFA (G & W) 19/2021

PETITIONER ANNEXURES

ANNEXURE A1 CERTIFIED COPY OF ORDER DATED 19-10-2020 IN I.LA NO. 487/2019 IN OP(G AND W) NO 66/2003 PASSED BY DISTRICT COURT,

MANJERI.