OD HG 0 CU 0 6 A1 : P O 0/1 H 45/ C 27 : 05 1 27 8 42 9024

1. This Appeal under Section 47 of the Guardians and Wards Act, 1890 is directed against the Judgment dated 20.10.2023 passed by the learned District Judge, Ganjam, Berhampur in Guardian Petition No.3 of 2023, whereby the prayer of the Appellants for appointment of Appellant No.1 as guardian of the property of minor Appellant No.2 and for permission to alienate the minor’s interest in the property, described in the petition, came to be rejected.

2. The brief facts leading to the filing of the present Appeal are that, the husband of Appellant No.1 and father of Respondent No.1 and the minor, Appellant No.2, Mohammed Mufazil, had purchased an immovable property at Mouza Kalarahanga, Bhubaneswar, measuring an area of Ac.0.127 decimal, under Registered Sale Deed No.2094 dated 26.06.1993. The property was thereafter recorded in his name under Khatian No.725/2253, corresponding to Plot No.1703/4942.

2.1. Mohammed Mufazil died on 22.05.2021. The Respondent No.1 was born on 22.04.2004 and minor Rida Alia was born on 27.04.2013. Appellant No.1, the minor-Appellant No.2 and Respondent No.1 are residing at Berhampur under the care and custody of Appellant No.1, after the death of Mohammed Mufazil. Thereafter, the Revenue Officer-cum-Tahasildar, Berhampur issued Legal Heir Certificate bearing No.ELHC/2021/187336 dated 26.12.2021 declaring Appellant No.1, Respondent No.1 and the minor-Appellant No.2 as his legal heirs. According to the Appellants, the minor-Appellant No.2 had an equal 1/3rd share in the said property.

2.2. It is the case of the Appellants that after the death of Mohammed Mufazil, Appellant No.1 was maintaining the minor-Appellant No.2 and providing her education. Appellant No.1, being a Pardanashin lady, had no independent and sufficient income to provide proper education, nourishment, food and shelter to the minor. The minor was studying in Std. IV at St. Vincent Convent School, Berhampur.

2.3. Appellant No.1, therefore, sought permission to sell the minor’s share in the property. The property is valuable and is fetching a good price in the market. She undertook to utilise the sale proceeds for the education, maintenance and betterment of the minor and to purchase suitable land in the name of the minor near their residence.

2.4. It is the case of the Appellants that, the property is situated about 170 kilometres away from their residence and that land brokers have kept their eye on the property. There is no male member in the family to look after the said property. Some prospective purchasers approached Appellant No.1 with offers of a good price. On approaching the Sub-Registrar, Khandagiri, Bhubaneswar, she was advised to obtain permission from the competent Court for sale of the minor’s share.

2.5. Being so advised, the Appellants filed Guardian Petition No.3 of 2023 under Sections 29 and 31 of the Guardians and Wards Act, 1890, shortly, „the Act,1890‟, before the learned District Judge, Ganjam. They sought appointment of Appellant No.1, Shamina Naaz, as guardian of her minor daughter, Appellant No.2, Rida Alia. They also sought permission to sell the minor‟s share in the property situated at Mouza Kalarahanga, Bhubaneswar Tahasil, under Khata No.725/2253, Plot No.1703/4942.

3. Respondent No.1 filed a Counter before the Court below admitting the case of the Appellants and supported the prayer for appointment of Appellant No.1 as the guardian of the minor and for permission to sell the minor’s share.

4. The learned Government Pleader, though appeared for Respondent No.2, did not file any Counter opposing to such prayer. No other Objection was filed despite publication of notice.

5. Appellant No.1 was examined as P.W.1 and documents were marked as Exts.1 to 6 without any objection. The Respondents did not adduce any oral or documentary evidence.

6. The learned District Judge, Ganjam, by the impugned judgment dated 20.10.2023 passed in Guardi