In this petition under Article 227 of the Constitution of India, the petitioner challenges Ext.P5 order whereby the application filed by the petitioner to enlarge the time under Section 148 read with Section 151 of the Code of Civil Procedure for executing the bond as per order dated 8.10.2010 was dismissed by the court below.
2. The facts absolutely necessary for the disposal of this petition are as follows:
The petitioner sought to get herself appointed as the guardian and next friend under the Hindu Minority and Guardianship Act and under the relevant provision of the Guardians and Wards Act in the light of the fact that the father of the minor child had died in a road accident on 25.11.1999.
The mother of the husband of the petitioner having predeceased the father of the minor child, the only legal heirs left were the petitioner and the minor child of the petitioner. The deceased was running a private finance company and there are liabilities in his name which later fell on the estate inherited by the petitioner and her daughter. In order to discharge the said debt, the petitioner moved a petition before the court to appoint her as the guardian of the minor and to permit the petitioner to sell the property in which the minor had a share. By order dated 8.10.2010, the petition was allowed as follows:
“In the result, this original petition is allowed as below:
(1) The petitioner is appointed as the guardian of the property of the minor Surya Gayathri.
(2) Permission is hereby granted to the petitioner u/s. 29 of the Guardian & Wards Act to alienate the share of the minor child in the property shown in the schedule.
(3) The petitioner shall execute a bond for Rs.1,00,000/- with two solvent sureties each for the like sum within one month.
(4) The draft sale deed shall be produced by the petitioner before this court for approval before executing the sale deed.
(5) The due share of the sale proceeds of the minor's share 15,00,000/- shall be deposited in a nationalized bank in the name of the minor as fixed deposit and the F.D. Receipt shall be produced before this court within one month of the sale of the property.
(6) The sale deed of the petition schedule property shall be produced before this court within one month of the sale deed.
(7) The property shall not be sold for a consideration of less than 73.5 lakhs.
(8) All the cases mentioned in the petition filed against the petitioner and the minor, shall be settled by the petitioner utilizing the sale consideration and minor shall ave no liability towards the debts of the deceased Madhu Mohan in future.
(9) The petitioner shall submit accounts before this court once in an year.”
3. The petitioner points out that the property of the petitioner and the minor were sold to different persons for a total consideration of Rs.75.5 Lakhs. The share of the minor was deposited in a Nationalized Bank as stipulated in the order and thereby the petitioner has complied with the directions in the order except condition No.(3) wherein it is stipulated that a bond should be executed by the petitioner. The petitioner points out that Ext.P6 is the receipt showing that the amount due to the minor as per the sale deeds executed by the petitioner in terms of the order appointing her as guardian and next friend has been deposited in the name of the minor.
4. By an inadvertent omission the petitioner had omitted to comply with condition No.(3) in the order appointing the petitioner as the guardian of the minor and therefore she moved I.A. 1775 of 2014 in O.P.(G & W) 71 of 2010 to receive the bond in terms of the earlier order.
5. The court below by the impugned order dismissed the petition and refused to receive the bond. The petitioner had moved an application under Section 148 of CPC seeking enlargement of time for filing the bond as stipulated in the order already made mention of.
6. A reading of Section 34 clearly shows that the bond is insisted to ensure that the guardian acts in terms of the order passed by the court below and shall not misappropriate or misutilize the funds of the minor. It is in order to protect the interest of the minor that the bond is insisted upon.
7. The petitioner has through various documents sold the property for a total consideration of Rs.75.5 Lakhs, i.e., in excess of the amount stipulated by the court below. The petitioner has also produced Ext.P6 receipt showing that in terms of the order dated 8.10.2010 she has deposited the minor's share in a Nationalized Bank in the name of the minor.
8. The petitioner points out that by the dismissal of the present petition, the entire affairs are thrown into disarray and she is unable to complete the transactions and to pay the amount due to various persons.
9. Learned counsel appearing for the petitioner pointed out that the execution of the bond is to ensure that that the guardian appointed as per the order of the court does not misappropriate or misutilize the funds of the minor and acts in terms of the order passed by the court concerned. Even assuming, according to the learned counsel, Section 148 of CPC to be considered as a constraint on the court to extend time beyond thirty days, Section 151 of CPC is always available to the court to do justice to the parties and ensure that no detriment is caused to any of the parties.
10. In the case on hand, according to learned counsel, the petitioner has deposited the share of the minor in a Nationalized Bank in terms of the order and there is nothing to show that she has either misused her position as guardian or she has exhibited any interest adverse to that of the minor. According to learned counsel, anyway the court has power under Section 151 of CPC to enlarge the time to receive the bond in terms of the order dated 8.10.2010.
11. After having heard learned counsel for the petitioner, there seems to be considerable force in the submission made by the learned counsel for the petitioner. There is no finding by the court below that other conditions in the order dated 8.10.2010 has been violated or the petitioner has exhibited any interest adverse to that of the minor. There is compliance with the earlier order with regard to the amount to be deposited as the share of the minor. The only omission, though may not be readily acceptable as an inadvertent omission, is that the petitioner has failed to execute the bond as per the order dated 8.10.2010. As long as there is no ill-motive or malafides in not executing the bond, and there is nothing to show that the petitioner is incompetent to continue as the guardian or exhibited any interest adverse to that of the minor, or that she has not acted in terms of the order of the court below, there is no justification for the court below to reject the petition.
12. The consequence of the rejection of the petition is to put the subsequent transaction involving the discharge of the debts into jeopardy.
13. Under these circumstances, the court below should have invoked the inherent jurisdiction under Section 151 of CPC and receive the bond as produced by the petitioner before the court below.
In the result, this petition is allowed, the impugned order is set aside and the court below is directed to receive the bond.
P. BHAVADASAN, JUDGE sb.