IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 29 of 2009()
1. JANCY RAJAN, AGED 43 YEARS,
... Petitioner
Vs
1. NILL
... Respondent
For Petitioner :SRI.A.BALAGOPALAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :09/02/2009
O R D E R
P.R.Raman & P.S.Gopinathan, JJ.
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M.F.A.No.29 of 2009
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Dated this the 9th day of February, 2009.
JUDGMENT
Gopinathan, J.
1.The appellant is the petitioner in G.O.P.
No.1256 of 2006 on the file of the VIth
Addl.District Judge, Ernakulam. She was
married to Sri.P.S.Rajan, who expired on 23-2-
1995. The petition schedule property was
acquired by late Rajan as per Ext.A4.
Matrimony blessed the appellant with two
children. Noble P.Rajan is the youngest. He
was born on 11-6-1992. On the death of the
husband of the appellant, the petition
schedule property devolved upon the appellant
and her two children. The youngest one
(minor) is studying in Xth standard.
According to the appellant, she is finding it
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difficult to meet the educational expenses of
her minor son with her own income. So, she
thought of selling the petition schedule
property for which she had found out a
prospective vendor and Ext.A3 agreement for
sale was entered into. The petition schedule
property measures 7.2 cents with a house
therein. The value of the land was agreed at
Rs.1,00,000/- per cent and value of the
building at Rs.3,00,000/-. Seeking an order
to appoint her as the guardian of the minor
and to permit her to alienate the property,
the appellant filed the above petition before
the lower court.
2.There is no respondent in the petition.
Nobody objected the petition, though due
notice was published.
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3.The appellant was examined as P.W.1 and
Exts.A1 to A5 were marked.
4.During the pendency of the petition, the
appellant filed an affidavit stating that she
is prepared to deposit Rupees six lakhs in the
name of the minor. The lower court, on an
appraisal of the evidence on record, arrived
a conclusion that the appellant has not
mentioned the real value for which she
intended to sell the property. Such a
conclusion was seen arrived at on a
presumption that, usual practice is that, an
agreement for sale will be produced before the
court showing a far lesser price than the real
price. In arriving such a conclusion, the
lower court has relied upon the averments in
the affidavit that she was prepared to deposit
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Rupees six lakhs in the name of the minor and
that if the actual sale was for Rs.10 lakhs,
the share of the minor would be much lesser.
Consequently, though the appellant was
appointed as the guardian of the minor, her
prayer for permission to sell the property was
rejected. Assailing the said order, this
appeal was preferred.
5.Having heard the learned counsel for the
appellant, who had taken us through the
pleadings and the evidence, we find that to
arrive at a conclusion that the appellant had
not shown the real value in Ext.A3, we had to
read in between the lines. Such a conclusion
is nothing but a guess work. On the same
time, the lower court omitted to note the fact
that, in between the mother and the minor son,
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there may not be an arithmetic precision while
disposing a property belonging to the mother
and the minor. It is evident from the
impugned judgment that since the minor is
studying in Xth standard, no much money is
required at present for his education purpose.
But more money may be required in furture.
Probably, on the anxiety of getting an order,
the appellant might have offered before the
court that she is prepared to deposit Rupees
six lakhs in the name of the minor. That
amount may be inclusive of the share of the
appellant, sometimes, even that of the brother
of the minor. There is nothing on record to
show that the appellant has got any adverse
interest against the minor or that the
property was intended to be sold for any
higher amount or for any other purpose or that
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the appellant has got any other source to meet
the educational requirements of the minor. It
is also pertinent to note that, even if the
appellant deposited the amount more than that
is actually due, she could seek permission of
the court to withdraw the amount, as and when
much amount is required. The lower court lost
sight of all these circumstances and declined
permission to sell the property, that too, on
some guess work, which is contrary to the
evidence on record.
6.In the above circumstances, we find that the
lower court went wrong in declining the prayer
to alienate the property. Consequently, the
appeal is allowed and there would be an order
allowing the appellant to sell the petition
schedule property on condition that she should
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deposit a sum of Rupees six lakhs in a
Nationalised Bank and produce the fixed
deposit receipt before the lower court within
seven days after the execution of the sale
deed. There will be no order as to costs.
P.R.Raman, Judge.
P.S.Gopinathan, Judge.
sl.