S.R.Gurunathaprabhu vs Nil on 10 April, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 10.04.2017

CORAM

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

C.M.A.(MD)No.1231 of 2015

S.R.Gurunathaprabhu … Appellant/
Petitioner

Vs.

Nil … Respondent/
Respondent

PRAYER: Appeal filed under Section 47 of the Guardian and Wards Act, 1890,
against the order dated 10.08.2015 passed in H.M.G.O.P.No.1 of 2015 on the
file of the I Additional District Judge (PCR), Tiruchirappalli.

!For Appellant : Mr.S.Bhargavan

^For Respondent :

:JUDGMENT

Aggrieved by the rejection of the application for permission to sell
the ‘B’ Schedule properties and to mortgage ‘A’ Schedule property to enable
him to discharge the debts incurred for the treatment of his wife,
Saraswathi, who ultimately died of cancer, the appellant is before this
Court.

2. The property as appended to ‘A’ Schedule property in the original
petition, was purchased by the said Saraswathi on 19.04.2004. The properties
as appended to ‘B’ Schedule property were purchased by the appellant and the
deceased Saraswathi under a sale deed dated 19.11.2009. The said Saraswathi
died leaving behind the appellant as well as two daughters, one of whom, is a
minor. Therefore, insofar as the property shown in ‘A’ Schedule, the
appellant and his two daughters will have 1/3rd share and in the properties
shown in ‘B’ Schedule, the appellant has 4/6th share being a joint purchaser
and the minor daugther will have 1/6th share. Claiming that he has spent more
than Rs.95,00,000/- (Rupees Ninety Five Lakhs only) for treatment of his
wife, Saraswathi and the appellant had incurred the debts, he sought for
permission to sell ‘B’ Schedule properties and he has also produced the
original agreement of sale, dated 09.05.2015, between himself and one
R.Kannan, son of V.Rajagopal, residing at No.2J/3, Poosari Street,
Chinthamani, Tiruchirappalli ? 620 002.

3. Though the learned Judge had found that the fact that the appellant
has borrowed and spent money for his wife is true, the application came to be
dismissed on the sole ground that the appellant has not undertaken to deposit
the share of the minor daughter in Court. The learned Judge has extracted the
proof affidavit as the appellant filed before the trial Court, which reads as
follows:

?jw;nghJ nkw;go fld;fSf;fhf jhthtpy; Twg;gl;Ls;s M ml;ltiz brhj;ij
tpw;f ntz;oa fl;lhak; vdf;F Vw;gl;Ls;sJ. vdnt nkw;go brhj;jpid tpw;W nkw;go
tq;fp flid milf;fntz;oa R{Hy; cs;sJ. vdnt ePjpkd;wj;jpy; nkw;go tPl;oid
fpiuak; bra;J mjpy; tUk; fpiuaj; bjhifia itg;gPL bra;a ,ayhj epiyapy;
cs;nsd;.?

In view of the said submission, the learned Judge has dismissed the said
application for permission to sell.

4. The learned Counsel for the appellant would submit that the same is
the wrong statement made by his Counsel and he is also misled by his Counsel.

5. It is also stated that certain proceedings are pending as against
the said Counsel before the criminal Court as well as Bar Council.

6. Be that as it may, the learned Counsel for the appellant would
submit that his client is ready and willing to deposit the share of the minor
daughter in any one of the nationalised banks till such time, she attains
majority.

7. In the light of the said statement, I deem it fit to allow this
Civil Miscellaneous Appeal and grant permission to the appellant to sell ‘B’
Schedule properties as per the agreement of sale, dated 09.05.2015, produced
as Ex.P.10 before the trial Court. The purchaser is directed to deposit 1/3rd
of the sale proceeds towards the share of the minor in a Fixed Deposit in the
name of the minor daughter represented by the appellant as guardian, for a
period of five years in any one of the nationalised banks at Chennai and the
receipt shall be produced before the trial Court. On such deposit, the
appellant will be permitted to execute the sale deed on behalf of the minor
daughter as guardian in respect of the ‘B’ Schedule properties. Insofar as
the second prayer for mortgage of ‘A’ Schedule property is concerned, it is
made clear that the mortgage can be made only to the extent of 2/3rd shares
of the appellant and his major daughter for the purpose of borrowal.

8. With the above directions, this Civil Miscellaneous Appeal is partly
allowed. No costs. Consequently, the connected civil miscellaneous petition
is closed.

To

The I Additional District Court, (PCR),
Tiruchirappalli..

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