Thottathil B. Radhakrishnan, J.@mdashThis appeal is against an order dismissing an application u/s 29 of the Guardians and Wards Act, 1890. Appellant is the mother and respondent is the father of two children aged 15 and 14 respectively in 2010, while the original petition from which this appeal arises was instituted. Their paternal grandmother, T.S.Indira, bequeathed an item of property to those minors. Later, after she and her husband died, the minors'' mother moved an application u/s 29, in the wake of the need to generate more funds for the continued education of the children. She had found out a purchaser for the property, who offered Rs. 3,50,000/- per Are and had also paid an amount of Rs. 5,00,000/- as advance.
2. The fact that the respondent is the father and the natural guardian, in terms of Section 6 of the Hindu Minority and Guardians Act, 1956, is of no consequence because, in the absence of the father, the mother is the natural guardian even in terms of that provision and the application by the mother is not opposed, but consented to by the father. Hence we do not find any legal infirmity in the mother applying for permission to act as the guardian. The consent of the father to such an application is sufficient, having specific regard also to Rule 3 of the Rules framed by the High Court of Kerala under the Guardian and Wards Act.
3. In Jancy Rajan v. Nil 2009 ILR (1) (Ker) 676, the Division Bench of this Court held that the Court should be considerate in granting permission to guardian unless the guardian has an interest adverse to that of the minor. We concur with that. We also find considerable support for the aforesaid view in the judgment of this Court in Kurian C.Jose v. Meena Jose 1992 (1) KLT 818, which says that though the father is the guardian of the minor and has a preferential claim for guardianship, the same cannot, by itself, be decisive and that the paramount consideration would be the welfare of the minor. Even assuming that the said decision is not rendered in relation to parties who are Hindus, we would apply that decision as a precedent for the principle that it is the welfare of the minor and not legal rights of the parents that should weigh with the court in the matter of appointment of guardians for the person or property of a minor. Any adjudication on that issue would arise only when the father is alive and is contesting a request for appointment of another person, including the mother, as guardian. For further support, see the ratio of the decision in
4. Here, the fact that the two children were in XI and VIII standards respectively in 2010 cannot be disputed. The parents have to provide adequate support, including by financing, for further pursuit of education, even for higher education. Therefore, the advantage to the wards is fairly well established in the case in hand on the basis of legitimate inferences that can be drawn reasonably on the totality of the facts and circumstances of the case. Obviously, the conditions that have to be imposed on the guardian for the purpose of the sale have to be made taking all the relevant aspects into consideration.
5. In the case in hand, the father of the children is before court. He is supporting the mother''s application to have her appointed as the guardian. We, therefore, do not find any reason to sustain the view in the impugned judgment that the father being the preferred natural guardian in terms of Rule 6 of the Hindu Minority and Guardianship Act, 1956, specific reasons should be shown as to why he is ineligible to continue as guardian or unfit to be the guardian. Such issue would arise only when he is sought to be removed against his consent. See also Rule 3 of the Rules referred to in paragraph No. 3 above.
7. On the basis of the evidence of the petitioner as PW1 and the fact situation available, including the age of the minors, we are satisfied that the permission sought for is on account of necessity and that there is an evident advantage to the wards by the transaction that is shown to have been agreed upon. The advantage that would accrue would be the availability of appropriate funds to provide for the further education of the two minors. The property of the minors that may be alienated in terms of the permission that is being granted hereby would be the property, in relation to which, the application is made, to wit, the assets that came to them by virtue of the testament of their paternal grandmother and as scheduled to the petition before the court below. For this, the petitioner and the respondent shall file separate affidavits before the court below undertaking not to utilise the funds for any purpose other than that of the minors and that the distribution of the sale proceeds to both wards will be in the proportion of their entitlement to inheritance by testamentary succession going by the Will of their grandmother. The funds generated by sale shall be deposited in separate bank accounts in the name of the minors on the basis of the shares that they have and such accounts shall be operated by the appellant subject to concurrence of the bank concerned and in terms of the banking laws, on behalf of and for the benefit of the minor concerned. The petitioner shall execute a simple bond without sureties, to the satisfaction of the court below, following due procedure, undertaking to abide by the directions contained herein and also to take care of the person and property of the wards in question.
Appeal allowed as above, vacating the impugned order and granting the prayers sought for in O.P. (G&W) No. 774 of 2010 of the IInd Additional District Court, Ernakulam. No costs.
