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2017 Supreme(Mad) 1825
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
J.NISHA BANU, J.
Vishnapriya - Appellant
Vs.
Ramesh Krishnan - Respondent
C.M.A(MD)No.1267 of 2016
Decided On : 04-10-2017
For the Appellant : Mr. T.Lajapathi Roy
Headnote:
Guardians and Wards Act,1890 - Section 47 - Evidence Act - Section 68 - Succession Act - Section 63(c) - Hindu Minority and Guardianship Act, 1956 - Section 6 - Testamentary succession - Will - Order to permit her to sell petition mentioned property to third parties for welfare and benefit of minors – Dismissed - Welfare and benefit of minors - Proof of execution of document required by law to be attested - Powers of natural guardian - Appellant is petitioner in G.O.P. and she is wife of respondent and before Court below, she moved an order to permit her to sell petition mentioned property to third parties for welfare and benefit of minors under Sections 8(2), 29(2) & 31 of Act,1890 - It is averred in affidavit that since the respondent addicted for alcohol and drugs and he was not capable for taking care of their children, said Jamuna Krishnan, grand-mother of minors during her life time bequeathed her interest over said property and other properties to her grand-children through a Will - Said property was mentioned as “f” schedule property in said Will and in her Will, it is clearly stated that his son, during intoxication he did not know what he did - She also stated that if she fails to execute a Will, her son would not allow his children to enjoy properties - Whether property of a minor can be alienated by his guardian - Held, It is clear that paramount importance has to be given to mother of minor child for benefit of the minor - In case on hand, husband of the appellant is an alcoholic person and appellant herein wants to sell off her properties for welfare of her minor child - One more adding factor in this case is paternal-grandmother of minor child herself came forward to bequeath her properties to her grandchildren when her son is alive - It shows that respondent is incapable of managing properties as well as his minor child or else nobody would bequeath properties to grandchild leaving her son - It was further held that while both parents are duty- bound to take care of person and property of their minor child and act in best interest of his welfare, in all situations where father is not in actual charge of affairs of minor either because of his indifference or because of an agreement between him and mother of minor (oral or written) and the minor is in exclusive care and custody of mother or father for any other reasons is unable to take care of minor because of his physical and/or mental incapacity, mother can act as natural guardian of the minor and all her actions would be valid even during lifetime of father, who would be deemed to be "absent" for the purposes of Section 6 (a) of Hindu Minority and Guradianship Act and Section 19(b) of Guardians and Wards Act - Civil miscellaneous appeal allowed.
This Civil Miscellaneous Appeals have been filed under Section 47 of Guardians and Wards Act,1890, against the dismissal order dated 08.08.2016 in G.O.P.No.47 of 2015 on the file of the Principal District Judge, Dindigul District, Dindigul.
2. The appellant herein is the petitioner in G.O.P.No.47 of 2015 and she is the wife of the respondent herein and before the Court below, she moved an order to permit her to sell the petition mentioned property to third parties for the welfare and benefit of the minors under Sections 8(2), 29(2) & 31 of the Guardian and Wards Act, 1890. The property in question situates at Kodaikanal and it belongs to one Jamuna Krishnan. It is averred in the affidavit that since the respondent addicted for alcohol and drugs and he was not capable for taking care of their children, the said Jamuna Krishnan, the grand-mother of the minors during her life time bequeathed her interest over the said property and other properties to her grand-children through a Will dated 25.09.2011. The said property was mentioned as “f” schedule property in the said Will and in her Will, it is clearly stated that his son, during intoxication he did not know what he did. She also stated that if she fails to execute a Will, her son would not allow his children to enjoy the properties. Subsequently, the said Jamuna Krishnan died on 01.01.2012 and after her demise, the said minor children inherited the said property through testamentary succession and they have been in possession and enjoyment of the said property as lawful owners and all the revenue records have been mutated in the joint names of the minors and separate patta has been issued in their joint names vide patta No.2212.
3. The matter was admitted on 22.11.2016 and private notice was also permitted and proof of service was also filed on 21.03.2017. However, there was no appearance on behalf of the respondent.
4. Learned counsel for the appellant would submit that the Court below has failed to notice that the intention of the testator/grandmother of the minor children was to safeguard her minor grand children from the clutches of alcoholic father. Further, since there being no male support and she being a handicapped person, the appellant is unable to meet the welfare of the children. Despite the fact that the respondent herein filed a memo stating that he being the husband of the appellant has no objection for allowing the petition, still, the Court below dismissed the claim of the appellant. Hence, the petitioner is before this Court.
5. As earlier pointed out, there is no appearance on behalf of the respondent. Hence, this Court proceeded with the available materials placed before this Court.
6. Now, the moot point to be decided in this case is as follows:-
(1) Is it required to prove the geneunity of the Will in the absence of denial of the Will, more particularly, when it is not disputed by the parties concerned?
(2) When the parties intends to sell the property for the welfare of the minor children and when the Will itself is not disputed, whether the legal heir certificate is necessary to sell off the properties?
7. The Court below negated the claim of the appellant by referring to Section 68 of the Indian Evidence Act,1872, which is referred to as follows:-
“68.Proof of execution of document required by law to be attested-
If a document is required by law to be attested, bit shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to be process of the Court and capable of giving evidence”
8. At this juncture, while dealing with the scope of Section 63 of I.S. Act and Sections 68 and 71 of Evidence Act, the Supreme Court in the case of J. Naval Kishore vs. D. Swarna Bhadran, reported in 2008 (1) CTC 97, (2007) 5 MLJ 1417, the Supreme Court has held as follows:
“The requirement of due execution of a Will under Section 63(c) of the Succession Act is
