Vishnapriya vs Ramesh Krishnan on 4 October, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 04.10.2017

RESERVED ON : 11.07.2017

PRONOUNCED ON: 04.10.2017

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.M.A(MD)No.1267 of 2016

Vishnapriya … Appellant / Petitioner

Vs.

Ramesh Krishnan … Respondents/Respondents

PRAYER:- Civil Miscellaneous Appeal filed under Section 47 of Guardians and
Wards Act, 1890 against the dismissal order dated 08.08.2016 in G.O.P.No.47
of 2015 on the file of the Principal District Judge, Dindigul.

!For Appellant :Mr.T.Lajapathi Roy
^For Respondent :No appearance

:JUDGMENT

This Civil Miscellaneous Appeals have been filed under Section
47 of Guardians and Wards Act,1890, against the dismissal order dated
08.08.2016 in G.O.P.No.47 of 2015 on the file of the Principal District
Judge, Dindigul District, Dindigul.

2. The appellant herein is the petitioner in G.O.P.No.47 of 2015
and she is the wife of the respondent herein and before the Court below, she
moved an order to permit her to sell the petition mentioned property to third
parties for the welfare and benefit of the minors under Sections 8(2), 29(2)
31 of the Guardian and Wards Act, 1890. The property in question situates
at Kodaikanal and it belongs to one Jamuna Krishnan. It is averred in the
affidavit that since the respondent addicted for alcohol and drugs and he was
not capable for taking care of their children, the said Jamuna Krishnan, the
grand-mother of the minors during her life time bequeathed her interest over
the said property and other properties to her grand-children through a Will
dated 25.09.2011. The said property was mentioned as ?f? schedule property
in the said Will and in her Will, it is clearly stated that his son, during
intoxication he did not know what he did. She also stated that if she fails
to execute a Will, her son would not allow his children to enjoy the
properties. Subsequently, the said Jamuna Krishnan died on 01.01.2012 and
after her demise, the said minor children inherited the said property through
testamentary succession and they have been in possession and enjoyment of the
said property as lawful owners and all the revenue records have been mutated
in the joint names of the minors and separate patta has been issued in their
joint names vide patta No.2212.

3. The matter was admitted on 22.11.2016 and private notice was
also permitted and proof of service was also filed on 21.03.2017. However,
there was no appearance on behalf of the respondent.

4. Learned counsel for the appellant would submit that the Court
below has failed to notice that the intention of the testator/grandmother of
the minor children was to safeguard her minor grand children from the
clutches of alcoholic father. Further, since there being no male support and
she being a handicapped person, the appellant is unable to meet the welfare
of the children. Despite the fact that the respondent herein filed a memo
stating that he being the husband of the appellant has no objection for
allowing the petition, still, the Court below dismissed the claim of the
appellant. Hence, the petitioner is before this Court.

5. As earlier pointed out, there is no appearance on behalf of
the respondent. Hence, this Court proceeded with the available materials
placed before this Court.

6. Now, the moot point to be decided in this case is as follows:-

1)Is it required to prove the geneunity of the Will in the absence of denial
of the Will, more particularly, when it is not disputed by the parties
concerned?

2)When the parties intends to sell the property for the welfare of the minor
children and when the Will itself is not disputed, whether the legal heir
certificate is necessary to sell off the properties?

7. The Court below negated the claim of the appellant by
referring to Section 68 of the Indian Evidence Act,1872, which is referred to
as follows:-

?68.Proof of execution of document required by law to be attested-
If a document is required by law to be attested, bit shall not be used as
evidence until one attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness alive and subject
to be process of the Court and capable of giving evidence?

8. At this juncture, while dealing with the scope of Section 63
of I.S. Act and Sections 68 and 71 of Evidence Act, the Supreme Court in the
case of J. Naval Kishore vs D. Swarna Bhadran, reported in 2008 (1)
CTC 97, (2007) 5 MLJ 1417, the Supreme Court has held as follows:

?The requirement of due execution of a Will under Section 63(c) of the
Succession Act is its attestation by two or more witnesses, which is
mandatory…. Section 71 of the Evidence Act is in the nature of a safeguard
to the mandatory provisions of Section 68 of the Evidence Act, to meet a
situation where it is not possible to prove the execution of the Will by
calling the attesting witnesses, though alive. Section 71 is permissive and
an enabling Section permitting a party to lead other evidence in certain
circumstances. But Section 68 is not merely an enabling section. It lays down
the necessary requirements, which the Court has to observe before holding
that a document is proved. Section 71 is meant to lend assistance and come to
the rescue of a party who had done his best, but driven to a state of
helplessness and impossibility, cannot be let down without any other means of
providing due execution by “other evidence” as well…. Section 71 of the
Evidence Act can only be requisitioned when the attesting witnesses who have
been called failed to prove the execution of the Will by reason of either
denying their own signatures or denying the signature of the testator or
having no recollection as to the execution of the document.

9. Ofcourse, it is true that any one of the witnesses have to
prove the bequeathed Will as per Section 68 of the Indian Succession Act.
But, in the case on hand, there is no rival claimant to rebut the Will. The
only rival claimant, namely, the respondent herein has given no objection for
allowing the petition filed by the petitioner. Therefore, it is deemed that
there is no dispute in respect of disposing of the properties in question.
Further, the Court below was of the view that the Will should have been
registered. However, this Court is of the considered view that it is the
option of the parties either to register the Will. There is no compulsion to
register the Will. Therefore, the question of producing the legal heir
certificate would not arise.

10. Now, whether the property of a minor can be alienated by his
guardian? This is the issue dealt with in this Article. Who is a Minor?
Section 4 (a) of the Hindu Minority and Guardianship Act, 1956 defines a
Minor as ?a person who has not completed the age of eighteen years?. Under
Section-6 of the said Act, the natural guardians of a Hindu minor, in respect
of the minor’s person as well as in respect of the minor’s property
(excluding his or her undivided interest in joint family property) are –

?(a) in the case of a boy or an unmarried girl?the father, and after him, the
mother: provided that the custody of a minor who has not completed the age of
five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the
mother, and after her, the father;

(c) in the case of a married girl – the husband;

Provided that no person shall be entitled to act as the natural guardian of a
minor under the provisions of this section?

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi)

Explanation.?In this section, the expressions ‘father’ and ‘mother’ do not
include a step-father and a step-mother?.

Under Section-7 of the said Act, the natural guardianship of an adopted son
who is a minor passes, on adoption, to the adoptive father and after him to
the adoptive mother. Under Section-8 (2) of the Act, the natural guardian
shall not, without the previous permission of the court,?

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any
part of the immovable property of the minor or

(b) lease any part of such property for a term exceeding five years or for a
term extending more than one year beyond the date on which the minor will
attain majority.?

It is also relevant to discuss Section 8 of the Hindu Minority and
Guardianship Act, 1956 deals with the powers of natural guardian of a Hindu
minor and the said section mandates that the natural guardian has power to do
all acts which are necessary or reasonable and proper for the benefit of the
minor or for the realisation, protection or benefit of the minor?s estate,
etc. The provision reads as follows:

?8 . Powers of natural guardian.-

(1) The natural guardian of a Hindu minor has power, subject to the
provisions of this section, to do all
acts which are necessary or reasonable and proper for the benefit of the
minor or for the realization, protection or benefit of the minor’s estate;
but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the
court,-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any
part of the immovable property of the minor; or

(b) lease any part of such property for a term exceeding five years or for a
term extending more than one year beyond the date on which the minor will
attain majority.

(3) Any disposal of immovable property by a natural guardian, in
contravention of sub-section (1) or sub-section (2), is voidable at the
instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the
acts mentioned in sub-section (2) except in case of necessity or for an
evident advantage to the minor.

11. The next question whether the guardian can sell off the property
for the welfare of the minor? In the case of Punjab-Haryana High Court in
Harpreet Singh Sekhon vs Rajwant Kaur dated 22.02.2013, the Court has
observed as follows:-

?The contention on behalf of the appellant is that in terms of Section
6 of the Hindu Minority and Guardianship Act, 1956, the father is the first
natural guardian and the mother comes after that. Therefore, the custody is
liable to be given to the appellant. In this regard, it may be noticed that
the Hon’ble Supreme Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu
and another , AIR 1984 SC 1224 held that Section 6 of the Hindu Minority and
Guradianship Act could not supersede the paramount consideration as to what
was conducive to the welfare of the minor. The boy from his own point of
view, it was held ought to be in the custody of the mother. In Ms. Githa
Hariharan and another v. Reserve Bank of India and another, AIR 1999 SC 1149
it was held that a mother can act as the natural guardian of a minor even
when the father is alive. Word ‘after’ in Section 6 (a) of the Hindu Minority
and Guradianship Act, it was held, has to be read as meaning “in the absence
of father” to make the the said Section consistent with constitutional
safeguard of gender equality. The word ‘after’ need not necessarily mean
“after the lifetime”. In the context in which it appears in Section 6 (a), it
means “in the absence of”, the word “absence” therein referring to the
father’s absence from the care of the minor’s property or person for any
reason whatever. If a father is wholly indifferent to the matters of the
minor even if he is living with the mother or if by FAO No.6208 of 2011 [28]
virtue of mutual understanding between the father and the mother, the latter
is put exclusively in charge of the minor, or if the father is physically
unable to take care of the minor either because of his staying away from the
place where the mother and the minor are living or because of his physical or
mental incapacity, in all such like situations, the father can be considered
to be absent and the mother being a recognized natural guardian, can act
validly on behalf of the minor as the guardian. It was further held that
while both the parents are duty- bound to take care of the person and
property of their minor child and act in the best interest of his welfare, in
all situations where the father is not in actual charge of the affairs of the
minor either because of his indifference or because of an agreement between
him and the mother of the minor (oral or written) and the minor is in the
exclusive care and custody of the mother or the father for any other reasons
is unable to take care of the minor because of his physical and/or mental
incapacity, the mother can act as natural guardian of the minor and all her
actions would be valid even during the lifetime of the father, who would be
deemed to be “absent” for the purposes of Section 6 (a) of the Hindu Minority
and Guradianship Act and Section 19(b) of the Guardians and Wards Act. In
Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 it was held that the interest
and welfare of the minor should be treated as being of paramount importance.
It is not the better right of either parent that would require adjudication
while deciding their entitlement to custody. The desire of the child coupled
with the availability FAO No.6208 of 2011 [29] of a conducive and appropriate
environment for proper upbringing together with the ability and means of the
parent concerned to take care of the child are some of the relevant factors
that have to be taken in account by the court while deciding the issue of
custody of a minor. What must be emphasized is that while all other factors
are undoubtedly relevant, it is the desire, interest and welfare of the minor
which is the crucial and ultimate consideration that must guide the
determination required to be made by the Court. Therefore, what is primarily
is to be seen is as to what is the welfare of the minor which is the foremost
and paramount consideration. The Courts can supersede the natural rights of a
parent and not restore the custody of the child to him/her where on account
of inaptitude, the welfare of the child is in danger. The parents’ right to
have custody of the child is not a right like a right of property but one of
trust for the benefit of the child. Therefore, where a parent fails to
perform the obligations which contain a trust in his/her favour, he/she
foregoes his/her right to have custody of the child. A right of the parents
is secondary to the interest of the child. The right will not be enforced
where it conflicts with the interest of the child.?

12. In Nil Rantan Kundu v. Abhijit Kundu reported in 2008 (4) CTC 425,
while explaining the scope and power to make orders as to guardianship and
the factors to be considered by the Courts in the matter of appointment of
mother as guardian, this Court, at Paragraphs 56, 59, 61, 62, 72 and 74, held
as follows:

“56. In our judgment, the law relating to custody of a child is fairly well-
settled and it is this. In deciding a difficult and complex question as to
custody of minor, a Court of law should keep in mind relevant statutes and
the rights flowing therefrom. But such cases cannot be decided solely by
interpreting legal provisions. It is a humane problem and is required to be
solved with human touch. A Court while dealing with custody cases, is neither
bound by statutes nor by strict rules of evidence or procedure nor by
precedents. In selecting proper guardian of a minor, the paramount
consideration should be the welfare and well-being of the child. In selecting
a guardian, the Court is exercising parens patriae jurisdiction and is
expected, nay bound, to give due weight to a child’s ordinary comfort,
contentment, health, education, intellectual development and favourable
surroundings. But over and above physical comforts, moral and ethical values
cannot be ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. If the minor is old enough to
form an intelligent preference or judgment, the Court must consider such
preference as well, though the final decision should rest with the Court as
to what is conducive to the welfare of the minor.

13. From the afore-said judgment, it is clear that paramount importance
has to be given to the mother of the minor child for the benefit of the
minor. In the case on hand, the husband of the appellant is an alcoholic
person and the appellant herein wants to sell off her properties for the
welfare of her minor child. The one more adding factor in this case is the
paternal-grandmother of the minor child herself came forward to bequeath her
properties to her grandchildren when her son is alive. It shows that the
respondent is incapable of managing the properties as well as his minor child
or else nobody would bequeath the properties to the grandchild leaving her
son. Therefore, as already stated earlier, as per Section 6 (a) of the Act,
if the father is physically unable to take care of the minor either because
of his staying away from the place where the mother and the minor are living
or because of his physical or mental incapacity, in all such like situations,
the father can be considered to be absent and the mother being a recognized
natural guardian, can act validly on behalf of the minor as the guardian. It
was further held that while both the parents are duty- bound to take care of
the person and property of their minor child and act in the best interest of
his welfare, in all situations where the father is not in actual charge of
the affairs of the minor either because of his indifference or because of an
agreement between him and the mother of the minor (oral or written) and the
minor is in the exclusive care and custody of the mother or the father for
any other reasons is unable to take care of the minor because of his physical
and/or mental incapacity, the mother can act as natural guardian of the minor
and all her actions would be valid even during the lifetime of the father,
who would be deemed to be “absent” for the purposes of Section 6 (a) of the
Hindu Minority and Guradianship Act and Section 19(b) of the Guardians and
Wards Act. In Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471, it was held
that the interest and welfare of the minor should be treated as being of
paramount importance.

14. In the result, the order of the Court below stands set aside and
this civil miscellaneous appeal stands allowed. No costs. Consequently,
connected miscellaneous petition is closed.

To,

1.The Principal District Judge,
Dindigul.

2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.

.

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