JINCE MARY JOHNS Vs. JOHNY K P

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 Section 7 and an application for relief under Section 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 Section 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 Section 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, impleaded 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.) WHILE section 28 deals with the powers of testamentary guardian and applies to cases where a guardian has been appointed by Will or other instrument, Section 29 operates when a person other than the Collector or a testamentary guardian is appointed or declared as a guardian. That limitation of the power of such a guardian of property of a ward in terms of Section 29 will stand confined to persons who are appointed or declared by the court to be guardians. Section 30 describes the consequences as to voidability of transfers made in contravention of Section 28 or Section 29. Therefore, Sections 28, 29 and 30 do not have any bearing on a guardian who is neither the Collector nor a testamentary guardian nor a person appointed or declared by the court to be the guardian of the property of a ward. Hence disposal of immovable property of a minor by such a guardian would not be affected by Section 30 of the G & W Act merely on the ground that previous permission of the Court was not obtained in terms of Section 29 of that Act.