IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &

THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 14^TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 MFA (G & W) NO. 3 OF 2023 AGAINST THE ORDER/JUDGMENT OPGW 73/2022 OF ADDITIONAL SESSIONS COURT (ADHOC) III, KOLLAM APPELLANT/PETITIONER:

KOCHUMOL JOY AGED 40 YEARS, W/O LATE JOY BABY EETTIVILA PUTHEN VEEDU,THINGALKARIKOM, KULATHUPPUZHA,SAM NAGAR P.O .KOLLAM, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, THOMAS KUTTY, S/O ABRAHAM THOMAS, THUNDIYATHU VEEDU.THINGALKARIKOM, KULATHUPPUZHA,SAM NAGAR P.O. KOLLAM, PIN – 691310 BY ADVS.

SAJU J PANICKER KURIAN K JOSE RESPONDENTS/RESPONDENTS:

1 BABY EETTIVILA PUTHEN VEEDU, THINGALKARIKOM,KULATHUPPUZHA, SAM NAGAR P.O. KOLLAM., PIN – 691310

2 KUNJUMOL AGED 64 YEARS, W/O BABY, EETTIVILA PUTHEN VEEDU, THINGALKARIKOM,KULATHUPPUZHA, SAM NAGAR P.O KOLLAM., PIN – 691310

3 KEZIAH JOY AGED 13 YEARS, D/O KOCHUMOL JOY ,EETTIVILA PUTHEN VEEDU,THINGALKARIKOM, KULATHUPPUZHA,SAM NAGAR P.O,KOLLAM., PIN – 691310

4 KEVINAH JOY AGED 11 YEARS D/O KOCHUMOL JOY,EETTIVILA PUTHEN VEEDU,THINGALKARIKOM,KULATHUPPUZHA,SAM NAGAR P.O,KOLLAM, PIN – 691310 THIS MFA (G & W) HAVING COME UP FOR ADMISSION ON

14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Amit Rawal, J.

1. MFA is directed against the order dated 20.02.2023 passed in O.P.(G & W) No.73/22 filed by the appellant, whereby the Trial Court while allowing the petition has imposed certain conditions.

2. The facts is brief are that Appellant/Petitioner is the mother and custodian of minor children aged 13 and 11 years. They were born out of the wedlock of the appellant with Joy Baby who unfortunately died. The property scheduled stood in the name of the deceased father and after the demise, devolved by way of natural succession in favour of three surviving legal heirs ie., appellant and two minor children. The area of the scheduled property is an extent of 2 Ares and 83 square meters ie., 6.9 cents of land. The Appellant – wife submitted an application under the provisions of section 29 of the Guardian and Wards Act, 1890 r/w rule 9 and 10 of the High Court Rules for seeking permission from the Court to sell two-third share of the minor children to buy a new house as the children are finding very difficult to live in the house where their father died by committing suicide. The Guardian Court though allowed the application but imposed a condition to deposit the value of two-third share of property to the tune of Rs.4,34,000/- (Rupees four lakhs thirty four thousand only) in favour of each child before executing the sale.

3. Learned counsel appearing on behalf of the appellant submitted that the Court below while imposing condition has ignored the pith and substance of the prayer for, appellant had no other means to buy new house except by selling and utilizing the proceeds of the scheduled property. If this was the situation, the application would not have been filed as arrangements of funds could have been made at her own level. This Court on 27.06.2023 had issued notice. Service respondent has been effected. There is no appearance.

4. We have heard the learned counsel for the appellant. 5. The order of the Additional District Judge reads as under:

“This is a petition filed by the petitioner U/s 29 of the Guardians and Wards Act, 1890 and Rules 9 and 10 of rules of the Hon'ble High Court of Kerala.

2. The case of the petitioner is as follows:- The petitioner is the mother and custodian of minor wards Keziah Joy and Kevinah Joy aged 13 and 11 respectively. The minors were born in the wedlock of the petitioner with deceased Joy Baby. The petitioner her husband and their daughters are Christians by religion and governed by the Indian Succession Act 1956. The first and second respondents are the father and step mother of deceased Joy Baby. The property scheduled is having an extent of 2 ares 83 square metres that is 6.9 cents of land which was original in the joint names of th