JINCE MARY JHONS Vs. K P JHONY

JUDGEMENT

(1.) Mathukutty had 38 cents of land. On his death, that devolved on his two children, including Eldho Suresh Mathew, who died on 1.6.1996 leaving behind his widow and an infant. The widow cared for and brought up that son, Tharun. In 2005, M/s. Carmelites of Mary Immaculate Congregation, a charitable religious institution, purchased a large extent of property, including the aforesaid property which originally belonged to Mathukutty. By succession, minor Tharun had 2/3rd of the 1/2 share of his late father in that property. Tharun's mother represented him in that sale and invested the child's share in Life insurance Corporation of India and Shriram Investment Ltd. She also purchased 6.5 cents of land with a residential building in Thrikkakara Panchayat utilizing the sale consideration, it appears that thereafter, the vendees wanted her to clear any cloud on the transaction on account of the minority of Tharun. The mother, therefore, filed Original Petition under S. 7 and an application for relief under S. 29 of the Guardians and Wards Act, 1890, hereinafter, the 'G & W Act', for short. She applied that she be declared the guardian and be granted permission; essentially, ratification; for the transaction of sale made in favour of M/s. Carmelites of Mary Immaculate Congregation. There was no opposition to the petition, it needs to be noted that the appellant, widowed young and left with an infant then, did not re-marry, but brought up the boy who, at the time of institution of proceedings before the court below, in 2007, was 12 years of age and by now, around sixteen. The court below held that the sale having been entered into in 2005 without previous sanction of the Court in terms of S. 29 of the G. & W. Act, such transaction, to which the mother was a party, demonstrates that she is not a person who would protect the interest of the minor and by such sale, she has acted against the best interest of the minor. Accordingly, the request of the mother to appoint her as the guardian was dismissed holding that the action of the mother in that regard cannot be accepted. The request under S. 29 for permission or for ratification of the transaction was also refused as per the impugned order.

(2.) In the course of this appeal against the aforesaid order, we saw that certain persons who could be treated as interested in the affairs of Tharun are named in the Original Petition. We, imp leaded them as supplemental respondents in this appeal and issued notice to them; one of whom is the minor's paternal grandfather's brother and the other, the maternal grandfather. Both of them have filed separate affidavits supporting the appeal and the petition and application from which it arises. They affirm that the appellant unfortunately lost her husband, but remained unmarried and brought up the infant, caring for him.

(3.) Relying on the judgment of this Court in Jancy Rajan,2009 1 KerLT 34 , the learned senior counsel appearing for the appellant argued that the courts should be considerate in granting permission to guardian, unless the guardian has an interest adverse to that of the minor. He further argued that at least in exceptional cases, the requirement in S. 29 of the G. & W. Act as to previous permission could be excused if it becomes necessary in the interest of the minor and in such a context, the court below could ratify the transaction. He points out that, on facts, the transaction in question ought to have been held as one such, particularly when it has been pleaded and shown that the funds were utilized for purposes of the child. He says that the bona fides of the mother was beyond any pale of suspicion and the court erred in law and on facts in holding that the appellant's conduct shows that she is incompetent to be the guardian of her son, Tharun.