D S SWAMIKANNU PILLAI Vs. SAFOORMA BIBI

JUDGEMENT

(1.) ALL the above matters are connected and arise out of the same proceedings, and therefore they are dealt with together. In O. P. No. 3 of 1965 on the file of the District Court, Coimbatore, one D. S. Swamikannu Pillai was appointed as personal as well as property guardian of his minor sons, Paranjothi and five others under provisions of the Guardians and wards Act. The minors get certain properties by way of gift from a relation, one D. Rejendran Pillai. Even at the time of the gift by the said Rajendran Pillai there was a subsisting mortgage debt on the property gifted. The mortgagee filed a suit O. S. No. 309 of 1964 and obtained a decree. On the ground that the mortgagee was taking out execution proceedings to realize the sum of Rs. 4,000/- due under the mortgage and that if the property is sold in court auction it would fetch a low price, the said guardian filed an application before the lower court in I. A. 526 of 1965 seeking permission to sell the property of the minors by private sale and undertaking to invest the balance of the sale proceeds after discharging the mortgage debt in Government securities and to withdraw the interest thereon from time to time for the maintenance and education of the minors. The mother of the minors also filed an affidavit stating that the sale by private negotiation would be advantageous to the minors, in support of the application made by the father-guardian. The court passed on order on 6-12-1965 in that application as follows:-" i am satisfied that this is a bona fide prayer and that it is for the benefit of the minors. I therefore allow the application. Before the sale is concluded, an agreement of sale and other matters relating to the sale could be reported to the court then and there. After approval by the court the sale should be concluded. " on 18-3-1967, the guardian filed a memo along with a draft agreement of sale stating that he was reached an agreement with one Safoorma Bibi to sell the minors' properties for a sum of Rs. 42,000/- subject to the mortgage decree in O. S. 309 of 1964 on the file of the District Munsif's court, Coimbatore, that he had received a sum of Rs. 4,000/- as advance from her with a view to discharge the mortgage debt, that the above price is the best and highest he could fetch, and that the sale of the property at that price will be advantageous to the minors. Later, the guardian filed a regular application I. A. 184 of 1967, seeking the court's approval for the draft agreement and for permission to proceed with the sale. In support of the statements made in his memo the guardian also filed an affidavit from the minors' mother to the effect that the price fixed under the agreement is the highest one possible. The court ordered the guardian and the husband of the proposed purchaser to appear in court, and on 6-4-1967 both of them appeared in court. The husband of the proposed purchaser expressed his willingness to buy the property and pay in one installment the entire sale consideration if vacant possession was given. In order to enable the parties to ensure vacant possession of the property being given to the purchaser at the time of the completion of the sale, the matter was adjourned to 11-4-1967. But from 11-4-1967 it was adjourned from time to time at the request of the guardian till 23-5-1967. As the guardian could not evict the tenants in the property and was not in a position to deliver vacant possession of the property which was insisted on by the proposed purchaser, the advocate for the guardian made an endorsement that the petition in I. A. 184 of 1967 was not pressed for the present. On the basis of that endorsement the petition came to be dismissed as not pressed on that date. It is seen that on 27-3-1967 the guardian actually got permission from court to institute a suit against tenant in the property for recovery of possession so as to enable him to give vacant possession of the property to the intending purchaser. It is said that a suit has been filed and is still pending.

(2.) IT is under the above circumstances the intending purchaser filed three applications before the lower court. I. A. 107 of 1968 was filed on 23-1-1968 to implead her as the third respondent in I. A. 184 of 1967 which stood dismissed already. On the same day she filed another application, I. A. 109 of 1968 to revive the petition in I. A. 184 of 1967. On 12-2-1968 she filed another application I. A. 108 of 1968 under Section 31 of the Guardians and Wards Act and Section 151, civil Procedure Code seeking a direction from the court to the guardian to conclude the sale of the property as per the draft agreement earlier referred to. The Court by common order dated 5-8-1968, already all the three applications and directed the guardian to execute a sale deed for a consideration of Rs. 42,000/-in favor of the proposed purchaser and also to render accounts for the sum of Rs. 14,500/- said to have been received by the guardian of the minors in pursuance of the draft agreement of sale. C. R. Ps. 1245 to 1247 of 1969 are directed against the said common order passed by the lower court.

(3.) SUBSEQUENTLY the guardian, Swamikannu Pillai, filed an application I. A. 3020 of 1968 for a review of the order dated 5-8-1968 on the ground that all the relevant and full facts have not been placed before the court at the time when the original order was passed. The court saw no reason to review the order so far as it directed the sale of the property but was inclined to modify the same so far as it directed to account for the sum of Rs. 14,500/-issued against the guardian is concerned. In that view the court approved the draft sale deed as desired by the intending purchaser.