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2022 Supreme(Online)(KER) 29191
HIGH COURT OF KERALA
C.S. DIAS, J
REKHA RENGANATH
– Appellant
Versus
DHANALEKSHMI – Respondent
OP(C) 2528 2022
K.SHAJ, C.IJLAL, ARUN CHAND, VINAYAK G MENON, BHARAT VIJAY P, MAJID MUHAMMED, K.MINU, VITTORRIA PAULSON, JITHIN BABU
The legal principle established is that statutory procedures under the Guardian and Wards Act must be followed to ensure the welfare of the minor child.
Headnote:
Guardian - Guardian and Wards Act - Sections 7, 10, 11 - The Act governs the appointment of guardians for minors and mandates procedural requirements for applications, emphasizing the paramount welfare of the child in decision-making by the court.
Fact of the Case:
The petitioner seeks to be appointed as the legal guardian of her minor daughter after the death of the father. The property was mortgaged by the deceased, necessitating its partition to address debts. Respondents have no objection to the petition.
Finding of the Court:
The court found that the original petition must comply with statutory procedures before a decision can be made. The court emphasized that notice and proper publication must be completed in accordance with the Act and Rules.
Issues: Whether the court should direct the lower court to expedite the disposal of the guardian petition, despite pending procedural requirements.
Ratio Decidendi: The court held that without adherence to the procedural formalities prescribed by the Guardian and Wards Act and its Rules, no expeditious disposal of the petition is legally permissible.
Final Decision: The court directed the Additional District Judge-IV to dispose of the application according to law after fulfilling all necessary formalities.
J U D G M E N T
The original petition is filed to direct the Court of the Additional District Judge-IV, Kottayam, to consider and dispose of O.P.(G&W)No.201/2022 expeditiously.
2. The petitioner's case, in a nutshell, is that:
(i) The petitioner filed O.P.(G&W)No.201/2022 before the court below, against the respondents, under Sections 7 and 10 of the Guardian and Wards Act ,1890(in short, ‘Act’), to declare her as the legal guardian of the property of her minor daughter named Dhanasree R.
(ii) The petitioner's husband – Renganath, who is the father of the minor child and respondents 1 and 2 died intestate. The third respondent is the sister of the deceased.
(iii) During the life time of the deceased, he had mortgaged his property with Vazhappally Service Co-operative Bank and availed a loan. The deceased defaulted in repaying the loan amount.
(iv) The petitioner, the respondents and the minor child have inherited the property by intestate succession as per the provisions of the Hindu Succession Act , 1956. The minor child has
1/ th share in the property.
5 (v) In order to liquidate the liability of the deceased, it has become necessary to partition the property and sell the share of the petitioner and other sharers, but not the share of the minor child. It is with the above intention that the petitioner filed O.P.
(G&W)No.201/2022.
(vi) The original petition was filed before the Court of the Principal District Judge, Kottayam, on 11.11.2022. The case was made over to the Additional District Judge-IV and was posted for return of notice to 11.11.2022. The petitioner also filed an application as I.A.No.1/22(Ext P7), to publish a public notice by paper publication.
(vii) When the case was called before the Additional District Judge, on 12.12.2022, the respondents 1 to 3 appeared and filed a memo stating that they have no objection, in the original petition being allowed. Nonetheless, the court below adjourned the case to 17.02.2023 for production of the paper publication and the objection of the respondents, if any.
(viii)The adjournment of the case to 17.02.2023 has caused hardship to the petitioner. As the respondents have no objection, there is no legal impediment in the court below allowing the original petition.
(ix) Hence, this Court may direct the court below to consider and dispose of O.P. (G&W)No.201/2022 within a time frame.
Hence, the original petition.
3. Heard; Sri. K. Shaj, the learned counsel appearing for the petitioner and Sri. Jithin Babu, the learned counsel appearing for the respondents 1 to 3.
4. The point is whether this Court is to direct the court below to dispose of O.P.(G&W)No.201/2022 expeditiously?.
5. O.P.(G&W)No.201/2022 is filed to appoint the petitioner as the guardian of the minor child and grant her permission to partition the property of the child.
6. Section 11 of the Act lays down the procedure to deal with applications filed under the Act. Section 11 (1)(b) of the Act specifically stipulates that notice of the application has to be affixed on some conspicuous part of the court-house and the residence of the minor, and further the rules framed by the High Court have to be followed.
7. This Court has framed the Rules under the Act, in exercise of its powers under Article 227 of the Constitution of India .
8. As per Rule 6 of the above said Rules, the notice of the petition have to be served on the persons mentioned in Rule 2 and be published in the Gazette and/or in such newspaper as the court thinks fit.
9. Thus, when an application is filed to appoint a person as a guardian under the Act, in addition to serving notice on the respondents in the original petition, notice has to be affixed in a conspicuous place of the court-house, the residence of the minor and also be published in the official gazette and/or in the newspaper.
10. In the case on hand, after the case was made over to the Additional District Judge, the original petition stands posted to 17.02.2023 for production of the paper publication and t
