The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GUAP NO.15 of 2023 (In the matter of application under Section-47 of the Guardians and Wards Act, 1890). Mamata Kumari Sahoo & Others … -versus- Arpita Sahoo & Another … Appellants Respondents For Appellant : Mr. B. Bhuyan, Advocate along with Mr. L. Mishra, Advocate (A-3) For Respondents : Mr. A. Mishra, Advocate (R-1) Mr. B.P. Nayak, AGA CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:12.11.2024(ORAL) G. Satapathy, J. 1. This appeal U/S.47 of the Guardians and Wards Act, 1890 (in short, “the Act”) by the appellant is directed against the order dated 16.09.2023 passed in GUA(P) No.08 of 2022 by which the learned District Judge, Khurda at Bhubaneswar declined to appoint the appellant No.1 as a guardian for the interest of her minor sons and daughters-cum- GUAP No.15 of 2023 Page 1 of 15 appellant Nos.2 to 4 in the scheduled property in an application U/Ss.7 & 10 of the Act and consequently, permit her to execute and register sale deed in respect of the share of the minors appellant Nos.2 to 4. It needs to be stated here that during the pendency of this appeal, appellant No.3 has attained majority and has entered appearance through her
Legal Reasoning
however, observed by this Court in Saugat Satpathy GUAP No.15 of 2023 Page 13 of 15 (supra) at paragraph-10 that the parties are Hindus and they have the joint ownership over the suit property including the minor child, seeking permission under Section 8(2) of Hindu Minority and Guardianship Act, 1956 is not necessary. Admittedly, in the present case, no permission U/S.8(2) of the aforesaid Act is sought for, rather the appellant No.1 has made application U/S. 7 & 10 of the Act and that too, without averring a single word about they being governed by Hindu Succession Act. 9. In view of the aforesaid discussions and on a conspectus of the impugned order, this Court does not find any error apparent on the face of the impugned order by which the appointment of appellant No.1 as a guardian of the minor children for the purpose of sale of minors’ interest in the property has been refused, but it is clearly observed therein that the sale of the share of the appellant No.1 and respondent No.1 will serve the purpose, who are right now joined by the share of appellant No.3 on being found to have attained the majority in the meanwhile. In such GUAP No.15 of 2023 Page 14 of 15 premises, the sale of entire land including the interest of the minor children in the property is not for the welfare of the minor children inasmuch as, the property in question would fetch better value in future and the interest of the minor children therein would secure their better future. This Court, therefore, does not consider it in the interest of welfare of the children to interfere with the impugned order, but makes it very clear that the major persons succeeding to the scheduled property can alienate their share by way of execution and registration of sale deed. 10. In the result, the appeal being devoid of any merit stands dismissed on contest, but in the
Arguments
counsel Mr.Bibekananda Bhuyan by directly filing Vakalatnama in the Court today which is taken on record. 2. The facts in precise are that one Arun Kumar Sahoo, who was the husband of the appellant No.1 and father of appellant Nos.2 to 4 and respondent No.1, died on 27.02.2020 leaving behind him a piece of land in Plot No.5 in Khata No.611/ 3811 of Mouza- Bhubaneswar Sahar Unit No.41, Chandrasekharpur, PS- Chandrasekharpur, Tahasil- Bhubaneswar, Kisam- Kolatha measuring an area of Ac.0.450dec. It is stated that appellant Nos.2 to 4 are the students studying in school and college, whereas respondent No.1 is now married. According to the appellants, appellant No.1 GUAP No.15 of 2023 Page 2 of 15 being a housewife is practically facing a lot of difficulty in maintaining and bearing the expenses of her sons and daughters and she had incurred loans for the marriage of respondent No.1. In such premises, when appellant Nos.2 to 4 were minors and respondent No.1 was the unmarried major daughter, the appellant No.1 as the petitioner filed an application U/Ss.7 & 10 of the Act before the learned District Judge, Khurda at Bhubaneswar by impleading respondent No.1 as OP No.1 and the Collector, Khurda as OP No.2 praying to appoint her as a guardian of the minors in respect of their interest in the scheduled land for the purpose of selling it by executing and registering a sale deed on the ground that she needs money for the purpose of maintaining the children, expenses for their higher education, marriage expense of major daughter- respondent No.1 and to repay the loan of late Arun Kumar Sahoo. Accordingly, the application of the appellant No.1 was registered as GUA Petition and the learned District Judge, Khurda at Bhubaneswar proceeded with GUAP No.15 of 2023 Page 3 of 15 the matter by taking the evidence. After closure of evidence, the learned District Judge on analysis of evidence on record returned with a finding that the necessity of the appellant No.1 can be managed by selling away the share of the appellant No.1 and respondent No.1 and accordingly, declined to appoint appellant No.1 as guardian for the interest of the minor children to sell their shares, out of the scheduled property. Being aggrieved, the appellant No.1 has preferred this appeal by inter alia criticising the impugned order on the score that it is not for the welfare of the minor children. 3. In the course of hearing of this appeal, Mr. Bibekananda Bhuyan, learned counsel appearing along with Mr.Lalitendu Mishra, learned counsel for the appellants vehemently submits that the learned District Judge, Khurda at Bhubaneswar has committed gross illegality by not appointing appellant No.1 as a guardian for the property of the minors to alienate the land for the purpose of securing higher education and other educational expenses of the children together GUAP No.15 of 2023 Page 4 of 15 with the loan incurred by the appellant No.1 for conducting marriage of respondent No.1 and, therefore, the impugned order being not in the interest of justice, liable to be interfered with. Further, Mr. Bhuyan submits that the learned District Judge should have appointed the mother of the children as guardian to alienate the scheduled property for the best interest and welfare of the children, but he has declined to appoint the appellant No.1 as guardian to deprive the appellant No.1 to provide better education to the minor children as well as to keep her as a defaulter of loan incurred for the purpose of marriage of respondent No.1. Mr. Bhuyan by relying upon the decision rendered in Mamata Paramaguru vs. Collector, Khordha; GUAP No.02 of 2023 disposed of on 2nd May, 2023 submits that while deciding an application for appointment of guardian for the property of minor, the welfare of the children is paramount consideration, but in this case permitting the appellant No.1 to alienate the land would be for the best welfare of the children in providing better GUAP No.15 of 2023 Page 5 of 15 education as well as repaying the loan incurred by the appellant No.1 for the expenses of marriage of respondent No.1. Further, the decision in Saugat Satpathy & Another vs. Collector, Khurda & Another; FAO No.17 of 2024 disposed of on 05.03.2024 is also relied upon on behalf of the appellant No.1 to allow the appeal. On the other hand, Mr. Anoop Mishra, learned counsel appearing for respondent No.1 supports the contention as advanced by Mr. Bhuyan and inter alia submits that respondent No.1 has got no objection if the appellant No.1 is appointed as a guardian for the property of the minors. Further, Mr. B.P. Nayak, learned AGA submits that admittedly the property belongs to the deceased- Arun Kumar Sahoo, who was the husband and father of appellant Nos.2 to 4 and respondent No.1, but allowing the appellant No.1 to sell away the scheduled land would not be in the interest and welfare of the minors, since the scheduled property is a valuable piece of land and it would fetch more money in future, GUAP No.15 of 2023 Page 6 of 15 but the admitted averments of the appellant No.1 either in this appeal or in the petition before the learned District Judge, Khurda at Bhubaneswar does not disclose any real exigency of selling away the land. It is further submitted by him that it is not prudent to believe without any material to the effect that the property in question is required to be sold for the expenses of minor children for their higher education and marriage of respondent No.1. Accordingly, Mr. B.P. Nayak, learned AGA prays to dismiss the appeal. 4. After having bestowed an anxious and careful consideration to the rival submissions, it is no more in dispute that the Court on being satisfied can appoint a guardian for the property of the minor provided the same is for the welfare of such minor. Thus, the order appointing a guardian for the property of the minor is dependent upon the satisfaction of the Court as to the welfare of minor child/children and the Court, therefore, has to remain in guard to protect the welfare of the minor child while dealing with an application for appointing the guardian of the minor in GUAP No.15 of 2023 Page 7 of 15 respect of its property. In this case, the appellants in an application before the learned District Judge have only taken the ground that after death of her husband Arun Kumar Sahoo, appellant No.1 being a complete housewife is unable to maintain her family and children, but the children are reading in schools and for their higher education, adequate fund is required. In addition, it is also stated that since respondent No.1 has attained marriageable age, good amount of money is required to meet the expenses for her marriage. It is, therefore, clear that the appellants have taken two grounds for alienating the scheduled land by way of seeking an order from the learned District Court to appoint appellant No.1 as a guardian of the minor children for their interest in the scheduled land and such two grounds are; (i) the expenses required for higher study of the children and (ii) marriage expenses of respondent No.1, but the appellants have taken additional averments to repay the hand loan taken by the late husband of appellant No.1 in this appeal which is unacceptable inasmuch as, if the same was a fact, GUAP No.15 of 2023 Page 8 of 15 what prevented the appellants not to aver such fact in their application before the learned District Judge. 5. It might be a fact that in the meanwhile respondent No.1 might have got married, but no specific document has been produced to evidence that appellant No.1 has incurred expenses or taken loan for the marriage of respondent No.1. Merely by averring in the appeal memo that the appellant no.1 has borrowed a sum of Rs.12,00,000/- from the friends and relatives for the marriage of respondent No.1 is inconsequential in absence of any valid document. Similarly, the ground as advanced by the appellants for seeking Rs.30,00,000/- for the medical education of appellant No.3 appears to be imaginary and bereft of any document and the same is on no basis because it is never averred that appellant No.1 has been selected to take admission in MBBS course or any medical course. 6. It is, however, pleaded and advanced in the application for seeking appointment of appellant No.1 as a guardian of the minor’s property that adequate GUAP No.15 of 2023 Page 9 of 15 fund is required for the higher education of the minor children and marriage expenses of respondent No.1, but the admitted evidence on record discloses that appellant Nos. 2 and 4 are reading in the school i.e. Saraswati Sishu Vidya Mandir, Niladri Vihar, Bhubaneswar in Class-VI & Class-X respectively. Similarly, it is stated that appellant No.3, who has become major in the meanwhile was reading in +2 Science, but no specific requirement of these three children was either stated in the application or was any document exhibited to show the expenses required for their higher education. Whatever expenses is required for their higher education can be well adjusted by the sale of the share of appellant Nos.1, 3 and respondent No.4, because the total approximate value of the scheduled land as assessed by the learned District Judge is Rs.1 Crore then. What would be the exact and precise factors for the welfare of the minor(s) can be well considered by having due regard to the age, sex and requirement of such minor(s) and what would be the best interest for such GUAP No.15 of 2023 Page 10 of 15 minor(s) is paramount consideration in considering an application for appointing guardian for the minor(s) in respect of its property, especially when such appointment of guardian is purely meant for alienation of minor’s interest in land. In this case, what was the exact requirement of the minor children for higher education has neither been pleaded nor was being established, rather it seems that the application was purely for according permission for alienation of land. In a circumstance bereft any established reason, the Court should not appoint anyone as a guardian of the minor for its property merely because it is averred in the application that adequate amount is required for higher education of the children which can be made out from sale of the interest of the children. In absence of any real and legal evidence showing pressing need for expenses towards higher education of children, the sale of interest of the minor in the land succeeded by it cannot be considered for the welfare of such minor and the same assumes great significance, when the valuation of the land is probably GUAP No.15 of 2023 Page 11 of 15 nearabout Rs.1 Crore and 3/5 th of the interest therein can be alienated without any permission. 7. It is, however, considered appropriate to refer to the submission of the learned counsel that no one would come forward to purchase the interest in a property because of the expectation of litigation, but such a narrow interpretation cannot be made, because the appellant No.1 could have worked out for the partition of the scheduled land to meet the exigency by approaching appropriate forum either the Civil Court or Revenue Authority inasmuch as in that event, the interest of the minors can be safeguarded which is the paramount consideration for the welfare of the minor children, instead of giving permission to sale of the entire land in the guise of appointing the widow mother as a guardian of the minor children for the purpose of selling away the interest of minor children. Further, accepting the valuation of the land as assessed by the learned District Judge at Rs.1 Crore, the share of the major share holders in the said property would come to Rs.60 lakhs which would be GUAP No.15 of 2023 Page 12 of 15 sufficient for the needs of the appellants in the circumstance. 8. At this juncture, it is considered appropriate to refer to the decision relied on by the appellants, but it appears that the decision in Mamata Paramaguru (supra) being factually rendered on different context, cannot be made applicable to this case, inasmuch as the minor children therein were prosecuting their study at DPS, Kalinga where hefty amount is required for the education of the children, but in this case, the minor children of appellant No.1 are reading in Saraswati Sishu Vidya Mandir where minimum amount is required for prosecuting studies. Similarly, the decision in Saugat Satpathy (supra) is a decision rendered in the matter relating to Hindu Minority and Guardianship Act, 1956, but in this case, there is absolutely no averment that the scheduled property in question is a joint undivided family property nor was any averment taken to the effect that the parties are Hindus and governed by Hindu Succession Act. It is,
Decision
circumstance, there is no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 12th day of November, 2024/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 14-Nov-2024 10:33:29 GUAP No.15 of 2023 Page 15 of 15