High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.12.2007Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANOriginal Side Appeals Nos.220 and 232 of 2007S.K.A.Abdul KaderAppellant in boththe appealsv.VijayalakshmiRespondent in boththe appealsAppeal filed under Order XXXVI Rule 9 of the Original SideRules read with Clause 15 of the Letters Patent against theorders of the learned single Judge dated 30.07.2007 inApplications Nos.2232, 222 and 4124 of 2007 in O.P. No.566 of2005 and dated 05.01.2007 made in O.P. No.566 of 2005. For Appellant:Mr.N.R.Chandran,Senior Counsel, forMr.Chandra KanthanFor Respondent:Mr.V.RaghavachariJUDGMENTK.RAVIRAJA PANDIAN, J.These two appeals are filed by the appellant, an agreementholder against the orders of the learned single Judge - one dated05.01.2007 made in O.P. No.566 of 2005 and the other dated30.07.2007 made in common in Applications Nos.2232, 222 and 4124of 2007.2. The material facts for the purpose of disposal of theappeals are as follows :One Govindakutty Menon was the owner of the propertyadmeasuring 6528 sq. ft., bearing door No.78, Lattice BridgeRoad, Adyar, Chennai. The said Govindakutty Menon died on16.04.1992 leaving behind him his wife Vijayalakshmi, the https://hcservices.ecourts.gov.in/hcservices/ respondent in these appeals and three sons – G.Ramesh, G.Sureshand G.Sathish. G.Sathish died unmarried on 13.05.1995, whereasthe other son G.Ramesh died on 26.09.1999 leaving behind his wifeMeera Ramesh, Minors Nivedha Ramesh and Krishnan Ramesh. Thewife of Ramesh, Meera Ramesh also died on 14.01.2005 leaving hertwo children Nivedha and Krishnan as her heirs. After the deathof GovindaKutty, Vijayalakshmi, the respondent herein, Ramesh andSathish, who were then alive, along with Suresh, togetherborrowed a sum of Rs.20,00,000/- on 24.11.1993 and after thedeath of Sathish, the other three viz., Vijayalakshmi, Suresh andRamesh, who was then alive together borrowed another sum ofRs.35,00,000/- on 22.11.1995 – both from M/s Park Town BenefitFund by executing two simple mortgages over the said property.The property was brought to sale under section 69 of the Transferof Property Act consequent to non payment of the liability andone B.Murugeswaran purchased the property in the auction sale.The respondent Vijayalakshmi and her son G.Suresh challenged theauction sale proceedings in O.S. No.3419 of 2003 on the file ofthe V Assistant City Civil Court, Chennai. 3. While the matter stood so, the respondent Vijayalakshmi,G.Suresh, the plaintiffs in O.S. No.3419 of 2003 and M/s. ParkTown Benefit Fund Ltd., have entered into a compromise agreementwith the auction purchaser Murugeswaran in and by which theauction purchaser had agreed to relinquish his right over theproperty on receipt of Rs.55,00,000/- and that M/s. Park TownBenefit Fund Ltd., had agreed to discharge the liability inrelation to the above mortgage deeds dated 24.11.1993 and22.11.1995. In those circumstances of the matter, the respondentVijayalakshmi, who is entitled to 18/32 share in the saidproperty, on her behalf and on behalf of the minors who areentitled to 3/32 share each and G.Suresh, who is entitled to 8/32share, entered into an agreement on 22.03.2005 to sell away theentire property for a total sale consideration ofRs.1,50,00,000/- to the appellant. The appellant paidRs.50,000/- as advance to the respondent and another sum ofRs.54,50,000/- by way of A/c payee cheque drawn on Indian Bank infavour of Vijayalakshmi to enable her to make the payment to ParkTown Benefit Fund and thus the amount was paid and the mortgagewas discharged. In the agreement dated 22.03.2005, therespondent agreed to obtain permission of the competent Court forsale of the minors' share in the property and also put theappellant in possession of the ground floor of the property on16.09.2004. 4. In order to comply with the obligation on the part of therespondent, the respondent Vijayalakshmi filed O.P.No.566 of 2005before this Court under sections 3, 7 to 10 and 29 of theGuardian and Wards Act, 1890 and under Order XXI Rules 2 and 3 ofthe Original Side Rules seeking the following relief before thisCourt : https://hcservices.ecourts.gov.in/hcservices/ a. appoint the respondent (petitioner in OP.566/2005)as guardian for the person and the property of the minorsNivedha and Krishnan.b.grant permission to her for the sale of theproperty of the minors share described in the schedule topetition.c. permit the respondent Vijayalakshmi to withdrawthe interest amount accrued on the share amount of theminors agreed to be deposited in the bank for educationand maintenance of the minor children.5. This Court, by its order dated 13.09.2005 appointed therespondent as the legal guardian for the person and property ofthe minors Nivedha and Krishnan. While considering the secondrelief of permitting the guardian so appointed to sell theminors' share of the property, this Court, in order to find out,whether the consideration stated in the agreement in a sum ofRs.1,50,00,000/- is fair and reasonable, appointed an AdvocateCommissioner on 06.03.2006 with the direction to visit theproperty and to value the same taking into consideration theguideline value with the assistance of an Engineer and file areport. The Advocate Commissioner so appointed filed his reporton 05.04.2006 in which the value of the property was assessed atRs.2,39,61,387/-. 6. The learned single Judge, having regard to the value ofthe property stated in the report of the Advocate Commissionerwith reference to the sale consideration mentioned in theagreement, was of the view that permitting the respondent to sellthe share of the minors for the said amount would not be in thebest interest of the minors and declined to permit the petitionerto sell the petition schedule property to the agreed price ofRs.1,50,00,000/-, however, observed that if the appellant, theintending purchaser is agreeable to purchase the property for thesum as valued by the Advocate Commissioner, the respondent wasdirected to enter into a fresh agreement with the intendingpurchaser and approach the Court for appropriate orders.While so holding, in paragraph 10 of the order, the learned Judgehas rejected the application as follows :"In the result, the permission is rejected to sellthe property to the intending purchaser for a sum ofRs.1,50,00,000/-" 7. The appellant-intending purchaser, who has parted with asum of Rs.55,00,000/- filed three applications before the learnedsingle Judge in A. No.2232 of 2007 seeking to implead him asrespondent in O.P. No.566 of 2005, A.No.222 of 2007 seeking foran ad interim injunction restraining the respondent fromalienating or encumbering the property mentioned in the schedulein any manner and A.No.4124 of 2007 to modify the order dated05.01.2007 made in O.P. No.566 of 2005. Those applications were https://hcservices.ecourts.gov.in/hcservices/ hotly contested by the respondent herein by raising objection asto maintainability. The learned single Judge, upon considerationof the arguments advanced by the respective parties, dismissedthose applications on the premise that the appellant is a thirdparty to the application filed under sections 3, 7 to 10 and 29of the Guardian and Wards Act, 1890, which was finally disposedof on 05.01.2007, could not be impleaded by reopening thepetition, however, gave liberty to the appellant to file anappeal against the order dated 05.01.2007 made in OP. No.566 of2005 in accordance with law. 8. Accordingly, the appellant filed M.Ps. Nos.1 and 2 of2007 in O.S.A. SR. No.61753 of 2007. M.P. 1 of 2007 is for grantof leave to the appellant to file an appeal against the orderdated 05.01.2007 made in O.P. No.566 of 2005 and M.P.2 of 2007was filed to condone the delay of 190 days in filing the appeal.The appellant also filed an appeal in O.S.A.No.220 of 2007against the order of the learned single Judge dated 30.07.2007dismissing the applications filed by the appellant. In themiscellaneous petitions M.Ps.1 and 2 of 2007, the First Bench ofthis Court has granted leave to the appellant to file an appealand also condoned the delay in filing the appeal by its ordersdated 18.08.2007 and 28.08.2007 respectively. Accordingly, theSR was numbered as O.S.A.No.232 of 2007. Thus, both the appealsare before us.9. Mr.N.R.Chandran, learned senior counsel appearing for theappellant submitted that O.P.No.566 of 2005 has been filed undersections 3, 7 to 10 and 29 of the Guardian and Wards Act seekingpermission to sell away that portion of the immovable property ofthe minors, pursuant to an agreement entered into with theappellant by the guardian appointed by this Court. The subjectmatter of the agreement is not confined to that portion of theimmovable property of the minors alone, but the major portion ofthe property is the share of the respondent Vijayalakshmi and herson G.Suresh, in the sense that 26/32 (18/32 + 8/32) of theentire property. Even in the application filed in O.P. No.566 of2005, the schedule of the property refers only to 6/32 share outof the entire land and building in door No.78, Lattice BridgeRoad, Adyar, Chennai. If at all the learned Judge was of the viewthat the consideration quoted in the agreement is low, he wouldhave rejected the relief in respect of 6/32 share alone and inrespect of the remaining 26/32, the shares of Vijayalakshmi andG.Suresh for which no relief was sought for in the application,ought not to have rejected permission. The appellant, who hasparted with the money is definitely an aggrieved person. That isthe precise reason for the First Bench to grant the leave toappeal against that order. He further contended that in respectof that portion of the minors share, i.e., 6/32 share of theproperty, the appellant is willing to pay the priceproportionately, as assessed by the Advocate Commissioner. https://hcservices.ecourts.gov.in/hcservices/

10. However, Mr.Raghavachari, learned counsel appearing forthe respondent contended that the appeal is not maintainable. Asper section 8(2)(a) of the Hindu Minority and Guardianship Act,1956 only the natural guardian is authorised to lodge anapplication before the Court. The appellant, being a third partyto the order of the learned single Judge, cannot maintain theappeal. For that proposition he relied on the decision of theBombay High Court in the case of Shivamurti v. VijaysingVinayakrao, AIR 1972 Bom 152. Though certain other judgments havebeen annexed in the typed set of papers, no reference whatsoeverwas made to those judgments. 11. Heard the learned counsel on either side and perused thematerials available on record.12. Reference to the provisions of the Hindu Minority andGuardianship Act, 1956, in our view, cannot be accepted to nonsuit the appellant for filing the appeal. Section 2 of the HinduMinority and Guardianship Act, 1956 provided that the provisionsof that Act would be in addition to and not in derogation of theGuardian and Wards Act, 1890 and deemed to be incorporated inthat Act in the manner and to the extent postulated by section 2of the Hindu Minority and Guardianship Act. The judgment reliedon by the appellant is also one under section 8(2) of the HinduMinority and Guardianship Act, 1956 in which the powers of thenatural guardian was dealt with. The respondent filed anapplication to appoint her as a guardian and permit her to sellthat portion of the property belonging to the minors undersections 3, 7 to 10 and 29 of the Guardian and Wards Act. It isapparent that the said application in O.P. No.566 of 2005 hasbeen filed only pursuant to the agreement dated 22.03.2005 withthe appellant. Having obtained an order of guardianship for theperson and property of the minors, and having admitted that theappellant has parted with a sum of Rs.55,00,000/- and was alsoput in possession in the ground floor of the property, therespondent, now cannot, contend that the provisions of the HinduMinority and Guardianship Act, 1956 would apply and the appellantis incompetent to file the present appeal. Section 47 of theGuardian and Wards Act provides that an appeal shall lie to theCourt from an order made under section 29 of the Act refusingpermission. That provision does not in any manner restrict theperson as to who is entitled to file an appeal. The personaggrieved by an order of the Court could not be left without anyremedy to sort out his grievance. An appeal, in legal parlance,is held to mean the removal of a cause from an inferior orsubordinate to a superior tribunal forum in order to test andscrutinize the correctness of the impugned decisions. It amountsin essence and pith to a complaint to a higher forum that thedecision of the subordinate tribunal is erroneous and thereforeliable to be rectified or set right. (vide C.W. Co-op TransportSociety v. Punjab State, AIR 1962 Pun 94). On the face of the https://hcservices.ecourts.gov.in/hcservices/ language employed in section 47 of the Guardians and Wards Act,the objection as to maintainability has to be rejected and thesame is rejected.13. The order of the learned single Judge in rejecting thepermission for selling away the property in entirety for a sum ofRs.1,50,00,000/- cannot be legally sustained, because, as statedalready, in respect of the major share of the respondentVijayalakshmi (18/32) and that of G.Suresh, her son (8/32)permission was not sought for from the Court under section 29 ofthe Guardian and Wards Act. In O.P. No.566 of 2005 the Court wasnot expected to pass any order permitting or rejecting permissionto sell the major portion of the share belonging to therespondent and G.Suresh. Permission was sought for only inrespect of the minors' share, i.e., 6/32 share of the property.Hence, the order of the learned single Judge made in respect ofthe property covered under the agreement cannot be legallysustained, having regard to the relief sought for in the O.P.No.566 of 2005, i.e., permission to effect sale of the minors6/32 share as mentioned in the schedule to the petition. Hence,the order of the learned single Judge is modified and confined to6/32 share of the total extent, belonging to the minors, asmentioned in the schedule to the petition. With thismodification, O.S.A. No.232 of 2007 is disposed of. This orderwould not preclude the parties to settle the price of the minorsshare, as valued by the Advocate Commissioner and as suggested byMr.N.R.Chandran, learned Senior Counsel for the appellant, in hisargument.14. In view of the order passed in O.S.A.No.232 of 2007,virtually nothing remains to be decided in O.S.A.No.220 of 2007,however, on merits, we are not able to find any fault with theorder of the learned single Judge for the reasons stated therein.Hence, the appeal in O.S.A.No.220 of 2007 is dismissed. Nocosts. The connected miscellaneous petitions are closed.MfSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Sub Asst Registrar,OS, High Court, Madras.2. The Section Officer, Record Section, OS,High Court, Madras.+ 1 cc to Mr. V. Raghavachari, Advocate SR No. 75702+ 2 cc to Mr. V. Chandrakanthan, Advocate SR No. 75740O.S.A.No.220 and 232 of 2007VC(CO)SR/2.1.2008