IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN Miscellaneous First Appeal No.1633 of 2019 (GW) BETWEEN :
BABY AASHRETHA KASHYAP D/O. S.R. RAJESH, AGED ABOUT 10 YEARS, RESIDING AT NO.802 ’K’ BLOCK, BRIGADE GATEWAY, DR. RAJ KUMAR ROAD, MALLESWARAM WEST, BANGALORE-560 055.
SINCE THE APPELLANT IS A MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. SUMA RAJESH W/O. S.R. RAJESH AGED ABOUT 40 YEARS.
... APPELLANT (BY SRI T. P. VIVEKANANDA, ADVOCATE) AND :
- NIL -
... RESPONDENT THIS M.F.A. IS FILED UNDER SECTION 8(5)(C) OF THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956 READ WITH SECTION 47(A) OF THE GUARDIANS AND WARDS ACT, 1890, AGAINST THE ORDER DATED 19/12/2018, PASSED IN G. & WC.
NO.50/2017, ON THE FILE OF THE XXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-14), REJECTING APPLICATION FILED U/SEC.8(1) & (2) OF HINDU MINORITY AND GUARDIANSHIP ACT, 1956.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsel for the appellant. There is no respondent in this matter.
2. Though this appeal is listed for admission, we have nevertheless heard the matter finally on merits.
3. The appellant is a minor girl, aged 10 years, represented by her mother and natural guardian. She is assailing order dated 19.12.2018 passed by the XXXI Additional City Civil and Sessions Court, Bengaluru City, in G. & W.C. No.50 of 2017. By the said order, the application filed by the appellant through her mother under Section 8(1) and (2) of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ‘the Act’, for the sake of brevity) has been dismissed. Being aggrieved, the appellant has preferred this appeal.
4. We have heard learned counsel for the appellant and perused the material on record.
5. Briefly stated the facts are, the parents of the minor appellant purchased a residential house bearing No.51, Katha No.810, B.B.M.P., Yelahanka Sub-Division and Old Katha No.208/23/2 of Dodda Bettahalli village panchayat, for a valuable consideration of Rs.24,03,000/-, which consideration has been paid by the parents of the appellant minor in the name of the minor child. The parents have decided to sell the same in the name of minor. The parents of the minor have decided to sell the aforesaid property and purchase another property measuring 1588.64 sq. mtrs. bearing Katha No.51/B situated at Mallipatna village, Arkalgud taluk, Hassan district. The parents of minor appellant have also entered into an agreement of sale with the prospective purchaser of the aforesaid house property in question agreeing to sell the same for a valuable consideration of Rs.48,00,000/-
and they have already received advance sale consideration of Rs.10,00,000/-.
6. In the circumstances, the mother of minor appellant filed the application under Section 8(1) and (2) of the Act seeking permission to the natural guardian mother to sell the aforesaid house property to the purchaser. The said application has been rejected. In the circumstances, this appeal has been filed.
7. Learned counsel for the appellant, Shri T. P. Vivekananda narrated the aforesaid facts and contended that the trial Court was not right in rejecting the application. That the appellant minor is the only child of her parents and that by alienating the aforesaid property, namely, residential house bearing No.51 at Yelahanka Sub- Division, Dodda Bettahalli village panchayat, Bengaluru, for the purpose of purchasing the property measuring 1588.64 sq.mtrs. at Mallipatna village, would not have caused any prejudice to the interest of the child.
Therefore, the trial Court ought to have granted the permission.
8. On the last occasion, when we heard learned counsel for the appellant he also brought to our notice that there is another house property bearing No.802, ‘K’ Block, Brigade Gateway, Dr. Raj Kumar Road, Malleswaram West, Bengaluru–55, which is a residential unit wherein the family is presently residing, that it stands in the name of parents of the minor appellant. The parents are willing to gift the said apartment to their minor daughter, if this Court is to grant permission to the parents to sell the residential house bearing No.51 which is standing the name of minor. He submitted that the parents have also filed an affidavit in that regard and that on the basis of the affidavit filed by the parents and on compliance of what they have stated therein, permission may be granted to the parents to alienate the residential house now standing in the name of minor for the purpose of purchase of property measuring 1588.64 sq.mtrs. in Mallipatna village.
He submitted that if permission is granted by this Court to alienate the residential house property now standing in the name of minor appellant she could have the benefit of the flat in which they are presently residing in Brigade Gateway, Dr. Rajkumar Road, Malleswaram West, Bengaluru-55, which will be gifted to her by her parents. That once the sale consideration is received from the purchaser is adjusted towards the loan amount that has been obtained by the parents from M/s. Punjab and Sind Bank, J. C. Road, Bengaluru, to an extent of Rs.10,00,000/- (housing loan) and on clearance of the same, the title deed of the flat at Malleswaram shall be released and the said flat shall be gifted to the child. He submitted that if the said acts are permitted by this Court, then it would not cause any prejudice or deprivation of property rights of the minor insofar as her right, title and interest in the residential property bearing No.51 in Yelahanka Sub-Division, is considered.
9. He further submitted that within a period of eight weeks from today, the copy of the gift deed in the name of the minor shall be placed before this Court for this Court’s satisfaction, and therefore, permission may be granted.
10. The detailed narration of facts and contentions would not call for a reiteration except highlighting the fact that residential house bearing No.51 at Yelahanka Sub- Division was purchased by the parents of the appellant minor in the name of minor. The parents now intend to alienate the same and on alienation of the same and from the sale consideration to purchase other landed property in Katha No.51/B at Mallipatna village, Arkalgud Taluk, Hassan District. That since the property which is standing in the name of minor is sought to be alienated, the minor shall be gifted another property which is a residential flat at Brigade Gateway, Dr. Raj Kumar Road, Malleswaram West, Bengaluru-55, the same shall be done on conclusion of the alienation of residential house property, which is presently in the name of minor and after adjusting a portion of the sale consideration towards the payment of outstanding debt in respect of the Malleswaram Flat and on release of the sale deed. The affidavit in that regard has also been filed by the parents. The same is taken on record. They have stated in the joint affidavit that they would abide by the conditions stated in the said affidavit to be complied with within a period of two months, if the permission is granted. In substance, the contention of learned counsel for the minor appellant is that the alienation of residential house bearing No.51 would not result in deprivation of right, title and interest in the said property, as the said alienation would ultimately result in the minor being gifted a residential flat in Brigade Gateway, Malleswaram West, Bengaluru-55.
11. We find that the intentions of the parents are genuine and bona fide and that the permission to be granted by this Court is subject to the gift of the residential flat at Malleswaram West being made to the minor – appellant. We are of the view that it would not in any way be to the disadvantage of the minor or cause any prejudice to her in that regard. Further the minor appellant is the only child of her parents.
12. In the circumstances, bearing in mind the provisions of Section 8 of the Act, we find that there is an advantage to the appellant minor in being gifted the residential flat at Brigade Gateway, Malleswaram West, Bengaluru, in lieu of permission being granted by this Court to her parents to alienate the residential house bearing No.51 at Yelahanka Sub-Division, Dodda Bettahalli village, Bengaluru.
13. It is noted that the residential flat at Brigade Gateway is situated in the heart of the city, namely Malleswaram West Extension, and even though the same may be a flat as compared to a residential house which is in the name of minor and is sought to be alienated, there would not be any prejudice or deprivation caused to the minor vis-à-vis her right, title and interest in the aforementioned suit property.
14. In the circumstances, permission is granted to the parents of the minor to alienate the residential house bearing No.51 situated at Yelahanka, Sub-Division, Dodda Bettahalli village, Bengaluru, to the proposed purchaser and from the sale proceeds to clear the loan in respect of the residential flat which is at Brigade Gateway, Malleswaram West, Bengaluru, and on release of the title deeds, to gift the said flat in the name of minor. The same shall be done within a period of eight weeks from today.
15. The parents of minor shall place before this Court a copy of the gift deed executed in favour of the minor for perusal and satisfaction of this Court. Registry to list this matter in the third week of October 2019 despite disposal of this appeal due to the aforesaid reason.
16. The appeal is allowed and disposed of in the aforesaid terms by setting aside the judgment and decree of the lower Court.
In view of disposal of the appeal, I.A. No.1 of 2019 stands disposed.
Sd/- JUDGE Sd/- JUDGE hnm