Allowed

Ishaque v. Cheruvathodi Ayishabi

Kerala HC11 Sept 2012MFA (G & W)/41/2007

Case brief

AI extract

What is this about?

On a first appeal, the High Court of Kerala allowed the sale of property in which a minor had an undivided 1/12th interest. Despite an undervalued sale consideration of Rs. 1,20,000 against a market value of at least Rs. 5 lakhs, the Court permitted the sale to the minor's advantage subject to a fixed deposit condition.

What did the court decide?

Permission granted to sell the minor's 1/12th interest in the property; appellant to deposit Rs. 42,000 in a fixed deposit before the District Court.

Ishaque Vs Cheruvathodi Ayishabi — Succession and Inheritance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 MFA (G&W).No. 41 of 2007 ( ) ---------------------I.A.NO.3573/2006 IN OP.286/2006 of II ADDL.DISTRICT COURT,KOZHIKODE

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APPELLANT(S)/PETITIONER:

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ISHAQUE, AGED 27, S/O.PATTERKANDY SAIDALI, MUNOORKANDYPARAMBA, KOTTAMMAL PANNIYANKARA AMSOM DESOM, PO PANNIYANKARA KOZHIKODE.

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BY ADVS.SRI.A.BALAGOPALAN SRI.T.LAKSHMI SMT.KALA G.NAMBIAR

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RESPONDENT(S):

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CHERUVATHODI AYISHABI, AGED 53,

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D/O.C.T.MAMMU, OLAVANNA AMSOM DESOM, P.O.OLAVANNA.

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KOTTUVAYAL SAHEERA, AGED 24,

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D/O.MOHAMMEDALI, FEROKE AMSOM, NELLUR DESOM

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P.O.FEROKE.

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PATTARKANDY SAIDALI, AGED 68, S/O.MOHAMMED KOYA, MUNNOORKANDYPARAMBA

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KOTTAMMAL, PANNIYANKARA AMSOM DESOM

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P.O.PANNIYANKARA, KOZHIKODE.

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BY ADV. SRI.K.SANEESH KUMAR

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THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C. KURIAKOSE &

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BABU MATHEW P. JOSEPH, JJ.

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M.F.A. (G.W)No. 41 of 2007

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Dated this the 11^th day of September, 2012

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JUDGMENT

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Pius C. Kuriakose, J.

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Under challenge in this appeal preferred by the father of Mohammed Nizam, a minor born on 25.5.2005, is the order passed by the District Judge, Kozhikode dismissing O.P.No.286/2006 filed by the appellant for permission of the court to dispose of the property scheduled to the original petition in which minor Mohammed Nizam has undivided 1/12^th interest. The appellant produced Ext.A5 agreement for sale under which property in question - 5 cents of land with pathway frontage together with a residential building, which is described as incompletely constructed - for a total sale consideration of Rs. 1,20,000/-. The learned District Judge would, on evaluation of the materials available in the case, come to the conclusion that the consideration of Rs.1,20,000/- is too low when the market value of the property is taken into account. The learned Judge has not in the impugned order given any indication as to what according to him is the probable market value at the time when

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[MFA(G.W).41/2007]

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Ext.A5 was entered into.

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We have reappraised the evidence. We have heard the submissions made by Shri. A.Balagopalan, learned counsel for the appellant and Shri. K.Saneesh Kumar, learned counsel for the respondent. We keep in mind our own impressions regarding the market value of the property in Nallalam Village on the basis of various judgments of this Court in land acquisition cases and find that the market value of the property in respect of which permission is sought should be at least Rs. 5 lakhs as against the sum of Rs. 1,20,000/- shown in Ext.A5. As there is no other impediments against granting the permission sought for, since the evidence will justify the conclusion that the proposed sale will be to the advantage of the minor and will accomplish the necessities of the minor also, we are inclined to interfere with the impugned order and allow the O.P. filed by the petitioner. In fact, the stand taken by the learned counsel for the respondent was that if this Court protects the interests of the minor adequately in the matter there will not be serious objection in the M.F.A. being allowed. The result of the above discussions. therefore, is as follows:

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The impugned judgment is set aside and O.P.No.286/2006 of the District Court, Kozhikode, is allowed. The appellant and

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[MFA(G.W).41/2007]

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other co-sharers to the property are permitted to sell the property in question in continuation of Ext.A5 agreement in favour of Shri.Balakrishan, S/o. P.P. Gopalan, party No. 2 in Ext.A5. The appellant will represent the minor in his capacity as guardian in the proposed sale deed. The permission granted above is subject to the condition that the appellant shall deposit Rs.42,000/- from out of the total consideration paid by the above said Balakrishnan with a nationalised bank having branch in Kozhikode city as Fixed Deposit till 25.5.2023. The proceeds of the deposit will be released to the minor upon his attaining majority. The deposit will be made and receipt will be produced before the District Court, Kozhikode and the permission will become operative only upon production of the F.D. receipt.

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This appeal is allowed.

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sd/-

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PIUS C. KURIAKOSE, JUDGE.

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sd/-

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BABU MATHEW P. JOSEPH, JUDGE.

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krs.

Ishaque v. Cheruvathodi Ayishabi

Case brief

What is this about?

What did the court decide?

Ishaque v. Cheruvathodi Ayishabi

Case brief

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