The High Court · 2025

Counsel for the Appellant :SRl CHANDRASEN LAW OFFICES Counsel for the Respondent : SRI D VIJAYA KUMAR The Court delivered the following: Judgment \ THE HON'BLE SRI.IUSTICE T. VINOD KUMAR AND THE HON'BLE SMT. JUSTICE P. SREE STJDHA CIVIL MISCEL LANEOUS APPEAL No.434 of 2022 JUDGMENTl. (Per Hon'ble Sri Ju.rrica T. Vinott Kumar) This Civil Miscellaneous ./rppeal is filed against the order dated i0.08.2022 passed in I.A. No. 48l- of 2020 in O.p. No. 2l of 2020 on the file of XXVI Additional Chief Judge, City Cnil Court, at Hyderabad, filed under Ordcr XXXIX Rule I & 2 R/W Section l5l ofCPC.

2. The Appellant hcrein is thc petitioner in the underlying interlocutory application and also in the O.p.

3. Thc O.P. is filed under section l4 of Mental Health care Act, 201'7 r/w Section 14 of Rights of persons with Disabiliries Act, 2016 rlw Rule - 4 of Telangana Srate Rights of per.sons with Disabilities Rules 2018 to declarc the appellant/petitioner as a legal guardian or nominated representative/best friend of Smt. Gowri Priya to deal and protect her entitled movable and immovable petition schedule A, B & C schedule properties falling to her share. 2

4. In the aforesaid O.P, the appellant has filed the underlying Interlocutory Application under Order XXXIX Rule 1 and 2 r/w Section 15 I C.P.C. for granting ad-interim injunction order restraining the respondents from alienating or changing the nahrre of the petition schedule property or creating any third parties right or creating any charge or dealing with the petition schedule properties in any manner pending disposal of the main petition.

5. The case of the appellant/pctitioner is that [r:: is the elder brother of Late B. Rajagopal, who passed away on 26.09.2019 leaving behind his wile Mrs. Strbhadra and only daughter Ms. Gowri Priya. Appellant contends that Gowri priya is a differently abled person.who received special education. In 2008, Gowri Priya is married to Mr. Sreesan A. Gopinath i.e. respondent lrcrein and out of wed-lock they were blessed rvith a boy in 2009, named Master Yograj Sreesan.

6. The appellant further contends that in 2018, thi, Respondent took Ms. Gowri Priya and their child to his parental house in Cochin rvithout informing his father-in-law i.e. brother of appellant. The respondent's parental house was lacking in providing the required facilities to Mrs. Gorvri priya and did not I I 3 meet the standard of education required by the child. It is further contended that in 2018, the applicant's brother has submitted a petition to the A.P. State Human Rights Commission expressing his anguish, apprehensions and the psychological pressure on his daughter exerted by lamily membcrs of rcspondent'

7. The appellant contends that in July 2018, the appellant's brother sought his assistance to create a "Private Family Trust" for Ms. Gowri Priya's properties and assets i.e. H. No, 1301, RoadNo' 66, Jubilee Hills, Hyderabad (in short for 'subject property A') and her share of the ancestral property in H. No' 10-2-2761311; Plot No.17, West Manedpally, Secunderabad (in short for 'subject property B') and all other movable and immovable properties coming to her share (in short for'subject property C')' the same was mentioned in the Mandate of Operation dt'

02.07 .2018 executed by Late. Shri. B. Rajagopal.

8. The appellant further contends that after the death of appellant's brother on 26.O9.2}l9,the respondent allegedly broke open Smt. Subhadra Kunduri's Atmirah on i1.11'2019 and stole property documents. A complaint has been registered in the Jubilee hills police station for theft under Section -q78 of IPC. 4

9. It is furlher contended on behalf of the appellant that on

12.12.2019 he has sent a letter to the respondent to discuss about setting up a "Private Family Trust," for the properties coming to the benefit of Ms. Gowri Priya, but the Respondent failed to attend. On 25.01.2020 the appellant approached the Nlental Health Revierv Board to appoint him as the Nominated Representative for Ms. Gowri Priya. However, as the board rvas not constituted, no steps were taken on the said application

10. The appeliant contends that on 22.10.2020, the Respondent, along with farnily members, allegedly intruded into the 'subject property A'. To that eff'ect Ms. Subhadra Kundri had raised a complaint through phone call and filed a suit bearing O.S. No 2443 of 2020 seeking for pcrpetual injunction against the Respondent {iorn interfering with the property. The appellant furlher contend that the Respondent is trying to take advantage of Ms. Gowri Priya's mental state to cl'eate third-parly rights in the property and syphon offher assets, and it is for the said reason, he is seeking to be declared as the nominated representative of Ms Gowri Priya to safeguard her property and fulfil the l,ishes of his late brother by creating a family trust. By contending as above, the \ 5 Appellant sought for dismissal of the urderlying Interlocutory Application. 11 . Per contra the respondent contends that his wife i.e. Smt. Gowri Priya, is in sound physical and mental health and is not suffering from any disability as contemplated under the Mental Health Care Lct,2017 or the Rights of Persons with Disabilities Act, 2016. (in short'Act')

12. The respor,dent contends that the applicant, has maliciously initiated the present proceedings rvith an intent to mislcad the Court and unlawfully acquire the valuable properties of Smt' Gowri Priya, i.e. subject property A, B, and C. The appellant in collusion with Smt. Subhadra Kunduri, who is falsely claiming to be the second wife of Late B. Rajagopat are attempting to usurp the properties belonging to his wife i.e. Smt. Gowri Priya.

13. The respondent contended that Gowri Priya is having a natural brother by name, Mr. Ranjit Raj Gopal who has not been made a party in the alleged mandate of operation dated 02'07'2018 and therefore its execution appears to be suspicious and doubtful' 6

14. It is further contended that as per Rute 4 of Telangana State Rights of persons with Disabilities Rules 2018, limited guardianship shall be granted in the first instance t,r the parents, and thereafter to the siblings of the person with disability. The appellant, being merely a patemal uncle, does not tatl within the categories prescribed under the said Rule. Further, there is no evidence to shorv that the parenls and brother of Gowri pt.iya arc unavailable or unfit. Hence, the petitioncr has no locus standi to seek appointment as a limited guardian, and thus, ihe petition is liable to be disrnissed on this ground alone.

15. The respondent contends that no certificate from the competent authority under Sections 14 or 58 of the Act has been filed to establish any disability of Smt. Gorvri priya and on the other hand she herself having filed an application dated.

20.06.2006 for transfer of membership in the Jubilee Hiils Co- operative Housing Society along with her t'ather,s affidavit, woul<l indicate that she does not have any mental health issues.

16. The trial Court, heard both the parties and upon perusal of the docurnents filed, dismissed the undcrlying lnterlocutory Application stating that the applicant has not made out any prima I I I I i i i I , i I I 7 facie case nor balance of convenienoe is in his favour. The Court below observed that Smt. Gowri Priya has a natural brother, yet the appellant failed to mention his name in the affidavit. In the absence of any medical proof from a competent authority regarding Smt. Gowri Priya's disability, it cannot bc conclusively determined that she is a differently abled person. Furthermore, Gowri Priya has challenged the interim order passed on

24.11.2020 tfuough her power of attorney and initiated legal proceedings in OS No. 265 of 2020 against the appellant. Therefore, it is prima facie evident that she is competetit and capable of independently making decisions in relation to her properties.

17. Aggrieved by the aforesaid order of the trial Court, the appellant had filed the present Civil Miscellaneous Appeal.

18. Heard leamed counsel for the appellant and leamed counsel for respondent also perused the record

19. In order to appreciate the respective contentions, it is necessary to refer to the provisions of the Act and the Rules framed thereunder. Section 101(1) and (2) of Rights of Persons with Disabilities Act,2016 empowers the state to frame rules for 8 effective implementation of the Act. In furtherance olsuch power confened, The Telangana State Rights of Persons with Disabilities Rules, 2017 were fiamed. Sub mle (5) of Rule 4 is relevant to the issue under consideration and reads as under: " While granting the support of such lintited guardianship ,the Court or the designated authority shall consider a suitablt: pcrsott to be eppointed as a limited gnrdianship in the following prefet.ence of rnerit: - (a)The parents or adult cltiklren of the person with Di.\obility; (b)Irnmediate brother or sister; (c)Other Blood relatives or care givers or prominent pet-sonality oJ' the localiry. "

20. Frorn a reading of the above said rule, a petson to be appointed as guardian, must fall within the above said three 'the above said Rtr le 4(5). This categories mentioned unde'r provision outlines the order of preference for appointrng a limited guardian. i.c. first preference is given to the parents or adult children ofthe person with disability. If the above not available or suitablc, immediate brothers or sisters are colsidered. Next in linc are other blood relatives, cale givers, or prominent individuals frour the localiry. This order of preference shall be adhered to, unless circumstances exist that lender such individuals LLnsuitable or tmavailable, in which case the competent authoriry shall record feasons in writing for deviation therefiom. 9

21. In the present case, the appellant has failed to produce requisite documentary cvidence to establish that Mrs. Gowri Priya is differently abled person lacking legal competence, thereby necessitating the appointment of a limited guardian. Even assuming that Smt. Gowri Priya is declared to be a person with l disability under the applicable 1aw, the appointment of a limited I guardian must be made in accordance with Rule 4(5) of the Telangana State Rights of Persons with Disabilities Rutes, 2018, wherein prefererce is accorded, firstly, to the mother (in light of the father's demise), and secondly, to the imrnediate sibling, namely her brother, in the event the mother is found to be unsuitable. In the present facts since both the mother and the immediate sibling are available, the appellant cannot, by any means, be declared or recogrrized as the guardian, nominated representative, or best friend of Smt. Gowri Priya for the purpose of dealing with or safeguarding the subject properties A, B, and C.

22. Since, Rule 5(4) of the Telangana State Rights of Persons with Disabilities Rules 2018 categorically states the priority for appointing a limited guardian, the court cannot appoint any person as limited guardian in deviation of the priority prescribed 10

23. For the aforesaid reasons, this Court is of the vierv that the order of trial Court does not suffer from any enor warranting interxference by this Court

24. Accordingly, 1he Civil Miscellaneous Appeal lails and is dismissed.

25. As c sequcl, rciscellaneous petitions pending if any shatl stand closcd. No ord.er as to rosts SD/. MOHD.ISMAIL DEPUTY REGISTRAR //TRUE COPY// I A \ ''. I SECTION OFFICER To,

1. XXVI Additional Chief Judge, City Civil Court at Hyderabad. 2. One CC to SRI CHANDRASEN LAW OFFICES, Advocate [OPUC] 3 One CC to SRI D VIJAYA KUMAR, Advocate [OPUC] 4. Two CD Copies ADK/PSL $- HIGH COURT DATED:3010412025 JUDGMENT CMA.No.434 of 2022 \ -. tii:- S ra;O \i ( ) c (.) (\( z a) OT sEPM t o /-5r'n1r1'-rf- o i\ t a- DISMISSING THE CMA WITHOUT COSTS q+. 2r< T 1 f 6