PANDIKASALA KUNHALI Vs. PANDIKASALA MUHAMMED

JUDGEMENT

(1.) UNDER challenge in this appeal (G&W) preferred by the appellant, who is the father and legal guardian of three minor children by names (1) Moossa Kunhali (DOB:02.03.98), (2) Mammed Kunhali (DOB:02.03.98) & (3) Abdullah Ali Fahad (DOB:17.07.2004), is the order of the District Court, Kozhikode dismissing OP No.464/2010 filed by him under Sections 9, 10 & 29 of the Guardians' & Wards' Act - 1850 (Act 8 of 1850) for appointing him as legal guardian of the three minors and for granting permission to him to assign the minors' shares in 'B' & 'C' schedule properties in favour of himself after he has assigned his entire rights in the 'A' schedule property, which presently belongs to him, absolutely in favour of the three minors.

(2.) THE respondent, who is an uncle of the minors did not raise any contest. In response to the paper publication made regarding the pendency of the petition, the mother of the minors (wife of the appellant), Smt.Safia filed a statement. It is stated therein that 'A' schedule property is far more valuable than 'B' and 'C' schedule properties as the same is planted with yielding rubber. It is also stated that she has no objection whatsoever in 'A' schedule property being conveyed to the minor children and the minors' interest in 'B' and 'C' schedule properties being conveyed to her husband. She has also stated that she bonafidely believes that the above transfer will be beneficial to the minor children. The mother herself gave affidavit in chief examination supporting the OP. Nobody cross-examined her. Evidence in the case consisted of the oral evidence of PW1/appellant and documents A1 to A11. Exts.A10 and A11 are gazetted notifications of 06.03.2010 and these two documents will show that the property covered by Ext.A1 (the 'A' schedule property) is three times valuable than the 'B' and 'C' schedule properties. Nobody cross-examined PW1. Nevertheless, the court below has chosen to dismiss the OP stating reason that several aspects such as what will be the price of 'B' and 'C' schedule properties and as to how and whether the above price is going to be used by the purchaser of the 'A' schedule property have not been clarified. The court below concluded that the proposed transaction (which is virtually in the form of an exchange) has not been established to be of advantage and welfare of the minors. Accordingly, the OP was dismissed.

(3.) HAVING considered the submissions addressed before us by Sri.Sreedharan Pillai and having gone through various materials including the evidence on record not under challenge, we feel that the court below was too technical in disallowing the petition. Exts.A10 and A11 give strong support to the version of the appellant and his wife, the parents of the three minor children, who are evidently bringing the children up, that the value of 'A' schedule property is three times that of 'B' and 'C' schedule properties. We are convinced that the proposed transaction will be of eminent advantage of the minor children as they will be getting a property much more valuable than 'B' and 'C' schedule properties (in which they are having only fractional interest along with their father) absolutely. Accordingly, we set aside the impugned order and allow the OP. In fact, the first prayer in the OP is that the appellant/petitioner be appointed as the guardian of the minor children. In the personal law, which governs the parties, the appellant/father is the legal guardian. Even without a direction from the court, it will be so. While allowing the OP, we grant the permissions sought for by the appellant in respect of 'A' schedule property and 'B' and 'C' schedule properties. This will be subject to the condition that the draft of the deed of conveyance in favour of the minor children in respect of 'A' schedule property should be approved by the court below and the conveyance in respect of 'B' and 'C' schedule properties should be brought into effect only after the conveyance in respect of 'A' schedule property is completed. The appeal is allowed as above.