IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE ASHOK G.NIJAGANNAVAR MFA NO.6353 OF 2017 (GW) Between:
1. Smt. P.T. Shobha, C/o Late K.T. Manjunath, Aged about 39 years.
2. Kum. Lekhana @ Prathyaksha, Aged about 15 years.
Represented by Guardian Mother, Smt. P.T. Shobha, W/o Manjunath, Aged about 39 years, Kallalli Village, Belagodu Hobli, Sakaleshapura Taluk.
Presently residing at Ward No.11, Pete Basavanagudi Street, Cross Road, Arkalgudu Town, Arkalagudu Taluk, Hassan District.
…Appellants (By Sri. H.R. Anantha Krishna Murthy, Advocate) And:
-Nil-
... Respondent This MFA is filed under Section 47(a) of the Guardian and Wards Act, against the order dated 21.06.2017 passed on G&WC No.9/2016 on the file of the Senior Civil Judge & JMFC, Sakaleshpur, dismissing the petition filed under Section 29 of the Guardian and Wards Act.
This MFA coming on for Admission, this day, NAGARATHNA J., delivered the following:
JUDGMENT Heard. Admit.
2. This appeal is directed against order dated 21.06.2017 passed by the learned Senior Civil Judge and JMFC, Sakaleshpur in G & WC No.9/2016.
3. A petition was filed under Section 9 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act’ for brevity) seeking permission to alienate the undivided share of the minor petitioner- Kum.Lekhana @ Prathyaksha, aged about 14 years by her mother Smt.P.T.Shobha, in respect of schedule property. The said petition has been dismissed by the impugned order. Being aggrieved, the petitioners before the Court below have filed this appeal.
4. Briefly stated the facts are that one Kallallai Thimmegowda had four children, one of whom was K.T.Manjunath. He died on 13.05.2010. Petitioner No.1 is the wife and petitioner No.2 is the minor daughter of K.T. Manjunath. The said K.T. Manjunath died on 24.06.2008 leaving behind his widowed wife and minor daughter as his only legal representatives. Another son of Kallalli Thimmegowda i.e., Sri.K.T.Mohankumar had filed O.S.No.187/2014 seeking the relief of partition and separate possession of the suit schedule property. The said suit ended in a compromise decree dated 17.01.2015. As per the said compromise, the petitioners/appellants herein were jointly allotted land bearing Sy. No.106 measuring 1 Acre 25 Guntas and Sy. No.107 measuring 1 Acre 05 Guntas situated at Belagodu Village, Belagodu Hobli, Sakaleshpur Taluk. It is averred that appellants herein are in joint possession. After demise of her husband, petitioner No.1 shifted her residence to her father’s house at Paras Village of Doddamagge Hobli, Arakalagudu Taluk; that petitioner No.2 being the daughter is studying in 7th standard at Arakalagudu. Schedule properties are located about 100 kms. away; that there is virtually no income from the schedule properties which would meet the living expenses of the petitioners; that it has become difficult and expensive to retain the schedule property; In order to meet the educational expenses of the minor child and to meet their living expenses, petitioner No.1, being mother and natural guardian of minor child-Kum. Lekhana @ Prathyaksha, filed the application seeking permission to alienate the schedule properties. It is stated that the present market value of the schedule property is Rs.4,80,000/- per acre; that Sri.B.N.Ramachandra, is inclined to purchase the said land for a consideration of Rs.18.00 Lakhs and therefore, permission was sought from the trial Court to alienate the undivided share of the minor child.
5. After filing of the said petition, notice of the same was published in Kannada Daily newspaper- Bhima Vijaya calling for objection from any interested person. As there was no respondent to contest the same, the matter was posted for enquiry. Petitioner No.1 got herself examined as PW.1 and she produced 12 documents, which were marked Ex.P.1 to P.12. On the basis of the pleadings and evidence on record, the trial Court raised the following points for its consideration:
“1. Whether the petitioner has proved that, the proposed alienation is for the benefit of minor petitioner No.2 and it is not adverse to the interest of minor?
2. Whether the petitioners have made out sufficient grounds to allow the petition?
3. What order?”
6. The trial Court has answered point Nos.1 and 2 in the negative and dismissed the petition. Being aggrieved by the dismissal of the petition, petitioners have filed this appeal.
7. We have heard the learned counsel for the appellants and perused the materials on record. As already noted, there is no respondent in this proceeding as was the case before the trial Court.
8. Learned counsel for the appellants submitted that on the demise of K.T. Manujunath, husband of petitioner No.1/appellant No.1 and father of petitioner No.2/appellant No.2, the latter began to reside in the parental home of appellant No.1; that appellant No.2 is studying in 7th standard at Christa Jyothi School, Arakalagudu close to where they are residing and that the schedule lands are situated at Belagodu Village, which is located about 100 kms away. That it has become difficult for the appellants to maintain and look after the said lands; that the appellants also have no other source of income and are dependent on the parents of appellant No.1. It is submitted that if permission is granted to alienate the minor’s share of schedule lands along with the share of appellant No.1, the proceeds of the same shall be deposited in a fixed deposit in the name of minor child to the extent of her share, till she attains the age of majority. It is also submitted that the balance amount shall be utilized by appellant No.1 being mother of minor child, for benefit and welfare of both the appellants.
9. Learned counsel for the appellants has contended that the trial Court was not right in dismissing the application on the ground that in the event the appellants are in need of any funds, they could utilize the said properties for the purpose of obtaining the loan. He further submits that rather than obtaining a loan on the basis of the schedule lands it is more prudent to alienate the said lands and utilize the funds for betterment of the parties as the appellants have no other source of income and therefore, they would not be in a position to re-pay the loan, if any loan is obtained.
10. Learned counsel for the appellants therefore contended that this Court may grant permission to appellant No.1 to alienate the share of appellant No.2- minor daughter and that they would be complying with all terms and conditions that may be stipulated by this Court in the event permission is granted to alienate the minor’s share in the schedule lands.
11. Having heard learned counsel for the appellants and on perusal of material on record, we note that the schedule lands were allotted to husband of appellant No.1 and father of appellant No.2 in a compromise decree that was passed in O.S.No.187/2014 dated 17.01.2015.
12. That on the demise of Sri. K.T. Manjunath, the appellants are in joint ownership and possession of the schedule properties. It is also noted that the schedule lands are located about 100 kms away from the residence of the appellants, who are at Arakalagudu and the lands are situated at Belagodu village. The appellants have expressed their difficulty in maintaining and improving the said lands, which is stated to be coffee plantation and they do not have the necessary funds for investment on the coffee plantation. It is stated that the appellants have no other or independent source of income and are dependent upon parents of appellant No.1 for residence as also, to meet their living expenses.
13. It is noted that appellant No.1 has been able to enter into an agreement with Sri. B.N. Ramachandra, who is none other than the adjacent owner of the petition schedule lands, so as to alienate the same for a sum of Rs.18.00 lakhs.
14. PW.1, in support of her case, has submitted the following documents :-
“Ex.P.1 Genealogical Tree Ex.P.2 Certified Copy of Decree in O.S.No.187/2016 Ex.P.3 Market value Certificate of Subregistrar office.
Ex.P.4 Sale agreement dated 27.07.2016.
Ex.P.5 Bhima Vijaya daily newspaper dated 08.11.2016 Ex.P.5(a) Portion of Ex.P.5 Ex.P.6 Death certificate of Thimmegowda Ex.P.7 Death certificate of K.T.
Manjunath Ex.P.8 Study Certificate of Petitioner No.2 Ex.P.9 Mutation Ex.P.10 & 11 2 RTC Ex.P.12 Certified copy of Release deed.”
15. The trial Court has observed that if petitioner No.1/appellant No.1 herein intends to sell the lands, she can sell her half share and also bear the educational expenses of the minor petitioner and that it is not necessary to sell or alienate the share of the minor daughter and that the rejection of the application would not cause any injustice.
16. On perusal of lower court records, we find that the intending purchaser has agreed to pay the price higher than what has been stated in Ex.P.3. We also find that the lands in question, being located about 100 kms away and appellants not being in a position to invest on the said land or to maintain the lands, there is always a threat of encroachment on the said property in which event, the appellants cannot derive any benefit from the said property. On the other hand, if permission is granted to appellants to alienate minor’s share of the lands and proceeds are permitted to be deposited in a fixed deposit in any Nationalized Bank or Post Office, the interest on the said deposit would enure to the benefit of the minor daughter. Therefore, the Court below was not right in declining to grant permission to the appellant No.1 herein to alienate the share of minor appellant No.2 herein.
17. In the circumstances, we grant permission to appellant No.1 to alienate the undivided share of appellant No.2- the minor daughter along with the share of appellant No.1 to the prospective purchaser on valuable consideration and 50% of the sale proceeds being the share of the minor child, shall be deposited in any Nationalized Bank or in the Post Office, which would fetch the highest interest, until the minor child attains the age of majority and thereafter, at the option of appellant No.2, for a further period, as desired by her. The interest on the said amount shall not be utilized by appellant No.1 until the minor child attains the age of majority and thereafter, it is left to the option of appellant No.2 to re-invest or utilize the proceeds of the sale in a most prudent manner.
18. The impugned order dated 21.06.2017 passed by the trial Court is set-aside. Appeal is allowed in the aforesaid terms.
SD/- JUDGE SD/- JUDGE MBM