Dismissed

James Nicholas L v. Nil

Karnataka HC2 Jun 2023MFA/553/2023

Case brief

AI extract

What is this about?

Three minors appealed the dismissal of a petition seeking court permission to alienate their parents' inherited properties under a will. The High Court held that guardians failed to prove adequate grounds for sale due to educational expenses and dismissed the appeal.

What did the court decide?

Permission to alienate the minor's properties to the trial court. Parents enjoy educational benefits and educational expenses, appeal dismissed.

James Nicholas L Vs Nil — Child Custody and Guardianship | Karnataka HC (2023)

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MFA No. 553 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS FIRST APPEAL NO. 553 OF 2023 (GW)

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BETWEEN:

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JAMES NICHOLAS L, S/O LOUIS JAMES A, AGED ABOUT 13 YEARS, SINCE MINOR REPRESENTED BY HIS MOTHER AND GUARDIAN SMT MANJU M. @ MAGDALEEN MANJU LOUIS @ MANJU LOUIS JAMES, W/O LOUIS JAMES AND D/O MUNIRAJU, AGED ABOUT 39 YEARS, R/AT 617, VEERABHADRAPPA ROAD, R. S. PALYA, MARUTHI SEVANAGAR, BENGALURU-560033.

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Digitally signed by BELUR RANGADHAMA NANDINI Location: HIGH COURT OF KARNATAKA

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JEEVESH ADHVIK,

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S/O SRINIVAS M, AGED ABOUT 1 YEAR, SINCE MINOR REPRESENTED BY HIS FATHER AND GUARDIAN SRINIVAS M., S/O MUNIRAJU AGED ABOUT 35 YEARS, R/A 52/A, SATHYMURTHY CROSS, R. S. PALYA, KAMANAHALLI MAIN ROAD, BENGALURU-560033.

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SAANVI M,

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D/O MAHESH S, AGED ABOUT 5 YEARS, SINCE MINOR REPRESENTED BY HER MOTHER AND GUARDIAN SMT LAKSHMI DEVI M @ DEVI M,

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MFA No. 553 of 2023

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W/O MAHESH S, D/O MUNIRAJU, AGED ABOUT 32 YEARS, R/AT 52/A SATHYAMURTHY CROSS, R. S. PALYA KAMANAHALLI MAIN ROAD, BENGALURU - 560033.

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…APPELLANTS

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(BY SRI CHETHAN A. C., ADVOCATE)

AND:

…RESPONDENT

THIS MFA IS FILED UNDER SECTION 47(A) GUARDIAN AND WARDS ACT, AGAINST THE JUDGMENT AND DECREE DT.27.10.2022 PASSED IN G AND WC NO.25002/2022 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, (CCH-22), DISMISSING THE PETITION FILED UNDER SECTION 8(2) OF HINDU MINORITY AND GUARDIANSHIP ACT.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The parties to the proceedings are referred to as per their designation before the trial Court.

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The petitioners are impugning the order dated 27.10.2022 in the proceeding before the XIII Addl. City Civil Mayohall Unit, Bengaluru in G&WC No.25002/2022.

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MFA No. 553 of 2023

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The petitioner No.1 is minor and his parents are Christians. It appears that the mother of petitioner No.1 Manju @ Magdaleen was a Hindu and later converted as a Christian. The petitioners No.2 and 3 are also minors and they are represented by their respective natural guardians. The petitioners No.2 and 3 are Hindus.

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The petitioners No.1 to 3 represented by their natural guardians filed the petition invoking Section 8(5)(c) of the Hindu Minority and Guardianship Act, 1956 (‘Act of 1956’ for short). The trial Court noticing that the Act of 1956 is not applicable to petitioner No.1,has treated his petition as one under the Guardians and Wards Act, 1890 and the petition filed by the petitioners No. 2 and 3 as the petition under the Act of 1956.

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The petitioners sought permission from the Court to alienate the petition properties. Hence, the appeal by petitioner No.1 is treated as an appeal under Section 47(a) of The Guardians and Wards Act, of 1890 and the appeal by the remaining two petitioners is treated as one under Section 8(5)(c) of the Act of 1956.

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MFA No. 553 of 2023

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The brief facts necessary for the adjudication of the case can be summarised as under:

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One Lakshmaiah was the owner of the schedule properties described in the petition. Lakshmaiah was a bachelor and he executed a Will dated 22.09.1994. Under the said Will, a prior interest is created in favour of the children of his brother's son Muniraju, namely Manju, Srinivas and Devi. The Will further stipulated that Muniraju shall be the guardian of his children during their minority and the khata in respect of the said properties bequeathed under the Will be changed in the names of his minor children referred to above after they attaining majority. The Will further stipulates the properties will be inherited by the children of the said Manju, Srinivas and Devi after the demise of the testator. The Will further stipulated that Manju, Srinivas and Devi shall not have the right to alienate the properties bequeathed.

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The Lakshmaiah died on 22.7.1995. It is stated that petitioner No.1 is the son of Manju. Petitioner No.2 is the son of Srinivas and the petitioner No. 3 is the daughter of Devi. The

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MFA No. 553 of 2023

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petitioners No. 1 to 3 were aged 13, 1 and 5 years respectively when the petition was filed.

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It is the case of the parents of petitioners that they are the natural guardians appointed under the Will and are extremely poor and they do not have funds for the education of the petitioners. It is further stated that properties have to be sold to generate the funds to raise and educate the petitioners and the petition is filed seeking permission to alienate the properties bequeathed under the Will referred to above. The natural guardians urged that the properties surrounding the petition properties are well-developed and the petition properties are likely to be grabbed by land mafia.

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There are no respondents to the petition. After the publication of the citation, none appeared and objected to the petition. The trial Court recorded the evidence of the mother of petitioner No.1, who is examined as P.W.1. Ten documents are marked. After hearing the parties, the Court concluded that no grounds are made out and dismissed the petition. Being aggrieved by the aforementioned order, the petitioners are before this in appeal.

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MFA No. 553 of 2023

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Learned counsel for the petitioners submitted that the trial Court has misconstrued the Will produced by the petitioners. He contends that the petitioners No.1 to 3 are the owners of the properties under the Will dated 22.09.1994 executed by Lakshmaiah. That being the position, the guardian of the petitioners can alienate the properties for legal necessity and for the benefit of the minors. It is urged that the guardians of the petitioners No.1 to 3 have no means to pursue the education and they have sought permission of the Court to alienate the properties for the benefit of the minor petitioners. He contends that the enough evidence is placed to establish the necessities to sell the properties. It is his contention that the intended sale is for the benefit of the minors and the trial Court committed a serious error in dismissing the petition and refusing permission to alienate the properties.

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We have considered the contentions raised at the bar. Perused the materials available on record including the judgment.

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The points for considerations are:

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MFA No. 553 of 2023

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(a) Whether the guardians of the petitioners No.1 to 3 can alienate the petition properties?

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(b) Whether the trial Court is justified in dismissing the petition holding that grounds are not made out to allow the petition granting permission to alienate the petition properties?

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This Court has perused the Will dated 22.9.1994. In terms of the said Will, the testator bequeathed the properties in favour of Manju, Srinivas and Devi the children of the testator's brother's son, Muniraju. The relevant clauses in the Will read as under:

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"1.xxxxxx

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xxxxxxx Even the said three children 1. Manju, 2.Srinivasa, 3.Devi, to whom I have bequeathed the schedule properties is (sic) not entitled to sell or convey the schedule properties after attaining the majority.

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2. The said schedule properties should go to the said Manju, Srinivas and Devi's children after my death".

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MFA No. 553 of 2023

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The trial Court has considered the aforementioned clauses in the Will and has concluded that Manju, Srinivas and Devi to whom the properties are bequeathed are not entitled to alienate the properties and the properties should go to the children of Manju, Srinivas and Devi after the demise of the testator. In other words, the properties are bequeathed in favour of children of Manju, Srinivas and Devi by creating a prior interest in favour of Manju, Srinivas and Devi who will be holding the properties on behalf of the children to be born. This being the position, it is apparent that Manju, Srinivas, and Devi do not have absolute rights over the property, they have a limited right over the properties and they hold the properties in Trust on behalf of the children to be born to them. Petitioner No.1 is the son of Manju and petitioner No. 2 is the son of Srinivas and the petitioner No. 3 is daughter of Devi. The petitioners No.1 to 3 are the joint trustees under the Will. The question is whether their guardians can alienate the petition properties of the petitioners who are the trustees.

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The Trial Court has held that the guardians of the petitioners cannot alienate the properties as there is restraint in the Will. The restraint in the Will dated 22.09.1994, is to be

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MFA No. 553 of 2023

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understood in the context. The restraint against alienation incorporated in the Will is only to emphasise the fact that Manju, Srinivas and Devi have only a limited interest in the properties and they will be holding the properties in trust. The said restraint clause cannot be interpreted to say their power to alienate the properties, as the guardians of the legatees, is taken away. Such a restraint is contrary to law. However, the power of the minor guardian to alienate the properties is not unfettered. The Courts will permit the guardians to alienate the property of a minor only if the alienation is for the benefit of a minor. Thus, the Court has to consider whether the persons seeking the permission of the Court to alienate the minors' properties have made out the grounds.

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Admittedly, there are two properties, they are residential houses. The value of the properties is not specified. Petitioner No.1 is aged 13 and the petitioner No.2 is aged 2 years and the petitioner No. 3 is aged 5 years. Though the guardians made a claim that they are unemployed, it is not mentioned as to what is their income. The guardians of the minor petitioners No.1 and 3 are the mothers. The guardian of petitioner No. 2 is the father. The income and occupation of the

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MFA No. 553 of 2023

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father of the petitioners No.1 and 3 is not disclosed. Nothing is stated about the income of petitioner No.2. Though it is stated that the petitioner No.1 is studying in 8^th standard and the petitioner No.3 is studying in nursery, no evidence is produced to show the school expenses. It is not stated as to where petitioner No. 3 is studying.

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The petitioners have not stated as to what is the expenditure needed for education of the children and how much the shortfall is taking into their income. The value of the properties to be sold is not disclosed. It is also not stated that for what value they intend to sell the properties. The guardians who seek the permission of the Court have stated that they have no means to provide for educational expenses. Since petitioners are stated to be studying in 8^th standard and nursery, the claim to sell the two sites for the purpose of education does not impress the Court. The Trial Court in terms of the impugned order has held that it is the duty of the guardian of the children to provide education for the children and no materials are placed to show that the guardians of the petitioners are unable to provide education to the petitioners.

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MFA No. 553 of 2023

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It is also required to be noticed that in paragraph 16 of the impugned judgment, the trial Court has held that there is no material to hold that the guardians are unable to protect the properties in question and the same is in danger of being grabbed by the land mafia. The testamentary guardians are under obligation to protect the interest of the beneficiaries named in the Will. No complaint is filed against the persons who are allegedly making attempt to encroach the properties.

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Since the Court is considering the petition seeking permission to alienate the properties of the minors, the Court has to keep interest of the minor as a paramount consideration. Absolutely nothing on record to justify as to why both the immoveable properties are to be sold for the purpose of education of the minors who are said to be studying only in 8^th standard and nursery. It is also not stated as to whether they will be left with any other property after the sale of the properties. For these reasons this Court is of the view that no grounds are made out to allow the appeal.

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MFA No. 553 of 2023

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21. Accordingly, the appeal is dismissed .

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Sd/JUDGE

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Sd/JUDGE

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BRN

James Nicholas L v. Nil

Case brief

What is this about?

What did the court decide?

James Nicholas L v. Nil

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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