ASHWIN S.A. Vs. K.V.SUKUMARIKUTTY AMMA

JUDGEMENT

(1.) The above appeal is instituted against the judgment in O.P. No.4/2016 of the District Court, Kasaragod. The appellant herein is the petitioner and the respondent is the respondent herein before the court below. The original petition before the District Court was filed under Section 7 and 9 of the Hindu Minority and Guardianship Act, 1956 and under Section 29 of the Guardian and Wards Act , 1890, to declare the appellant/petitioner as the guardian of the minor named Ashwin who was aged 11 years at the time of filing the original petition and to permit the petitioner to manage the properties scheduled as 'A' to 'C' in the petition; and also to grant permission to close the home loan described as 'D' schedule and to permit the appellant/petitioner to act as guardian to manage all the activities of the minor.

(2.) Parents of the aforesaid minor died in a motor accident which occurred on 12-05-2015. The appellant/petitioner is the maternal grandfather and the respondent/respondent is the paternal grandmother. Claim of the petitioner was that, the minor is in his care and protection after death of his parents. Petition 'A' schedule is an immovable property belonging to the mother of the minor, with respect to which the minor alone is the successor in interest. It is stated that the petitioner is the caretaker of the property and is paying land tax with respect to the said property. The said property stands mortgaged to the Indian Overseas Bank, Nileshwar Branch. Property described as 'B' schedule are the benefits to be derived on account of death of the mother of the minor, such as the Family Pension, DCRG, Earned Leave Surrender, GPF and amounts standing credit in the Treasury and Banks. The amounts shown in 'C' schedule are the benefits due on account of death of the father of the minor, which includes the Family Pension, DCRG, Earned Leave Surrender, GPF etc. 'D' schedule is the Home loan Account of the deceased mother of the minor, held with the Indian Overseas Bank, Nileshwar Branch, with respect to which the petitioner sought permission to close the account. There were rival pleadings put forth by the parties before the court below. When the petitioner contended that the minor is in his custody and he has no interest in adverse to the interest of the minor, the respondent denied such claims and contended that she is in par with the petitioner in the matter of age and health and is capable of giving education and to lookafter the affairs of the minor child. Being the person retired from the post of the Assistant Educational Officer, the respondent claimed that, she is in a better position to lookafter the minor child and to guide him in his life. She had also raised contentions in proof of her financial capacity, stating that she has got landed properties and sufficient bank balance. She expressed an apprehension that the petitioner will misuse the status of the minor, if he is appointed as guardian.

(3.) In evidence, the petitioner got himself examined as PW1. Ext.A1 to A21 were marked on his behalf. No evidence was adduced on behalf of the respondent. The court below found that, considering the welfare of the minor and financial status of the contesting parties, the petitioner is the most suitable person to be appointed as guardian with respect to the person and properties of the minor. It was observed that, the respondent did not appear to adduce any evidence. Before arriving at the conclusion, the court below summoned the minor and ascertained his wishes and views. The minor said that he is residing with the petitioner in Bengaluru and that the petitioner looks after him well and takes care of his needs and expenses. The court below observed that, the minor was seen happy with the present arrangement of guardianship with the petitioner. Having found that the respondent had failed to appear to adduce any evidence on her behalf, it was held that the interest of the minor will be better served if guardian ship with respect to the his person and 'A' & 'B' schedule properties are entrusted with the petitioner. With respect to 'C' schedule property, which is the terminal benefits due on account of the death of the father of the minor, the court below found that, the respondent is also entitled to inherit in it along with the minor. It was observed by the court below that, the respondent will be entitled to half share in 'C' schedule items, along with the minor. Therefore, it was held that, it is only justified on the part of the court to appoint the respondent as a guardian of 'C' schedule items, which will facilitate a division of property in between the minor and the respondent. It was further observed by the court below that, in any case, if the respondent is unwilling to take up the guardianship of the minor with respect to 'C' schedule, she shall inform the court, in which event the court shall pass appropriate orders to safe guard the interests of the minor with respect to 'C' schedule items. Based on the above finding, the court below had allowed the original petition on the following terms;