(Prayer: Civil Miscellaneous Appeal filed under Section 47 of Guardian and Wards Act r/w Section 8 of Hindu Minority and Guardianship Act, against the fair and decreetal order dated 12.09.2024 made in G.W.O.P.No.13 of 2022, on the file of the Principal District Court, Karur.)

1. This Civil Miscellaneous Appeal is directed against the order passed in G.W.O.P.No.13 of 2022, dated 12.09.2024, on the file of the Principal District Court, Karur, dismissing the petition filed under Section 8 of the Hindu Minority and Guardianship Act.

2. The appellants are the petitioners and they being the parents of the minor C.Arul Vijay filed the petition under Section 8 of the Hindu Minority and Guardianship Act seeking permission to the petitioners to sell half share of the petition mentioned property belonging to their minor son.

3. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in their original suit.

4. The petitioners' case in brief is as follows:

                  The petitioners' minor son was born on 28.06.2011. The second petitioner – father for himself and on behalf of his minor son had purchased the petition mentioned property by virtue of a sale deed dated 15.02.2013 for a consideration of Rs.15,90,000/- and they had been in possession and enjoyment of the same. The second petitioner's brother Manickanathan had also purchased another portion of the property in the same and nearby survey fields and their properties are situated backside of the main road and having a pathway with a width of 12 feet to access their lands. While so, the second petitioner's brother Manickanathan sold his lands and purchased some other properties in some other village and hence, the second petitioner had no other go except to sell his property and also plan to purchase the lands in another village. The second petitioner sold his half share covered under sale deed dated 15.02.2013 to one P.V.Maheswar, S/o Visakan. The second petitioner's brother manickanathan had also sold his property to the said Maheswar. The first petitioner being the mother had entered into a sale agreement with the said Maheswar to sell 1/2 share of the petition mentioned property belonging to the minor and received a sum of Rs.6,50,000/- as advance and deposited the same in the name of the minor child in the Indian Overseas Bank, Velliyanai Branch for the period of 96 months ie., till the minor attains majority. The petitioners being the parents mutually decided to sell the petition mentioned property including the minor's share to the said Maheswar, for which, the permission of the Court is necessary. The minor child is under the care and custody of the petitioners. Hence, the above petition seeking permission.

5. The trial Court, as there is no respondent in the petition ordered notice by beat of tom tom and paper publication calling for objections. After compliance of the above directions, no objection came to be received and hence, the trial Court had proceeded with the enquiry. Originally, the first petitioner herein – mother of the minor has filed G.W.O.P., seeking permission and the learned trial Judge, upon considering the petition and evidence adduced, passed an order dated 30.11.2022 dismissing the permission petition. Challenging the dismissal order, the first petitioner preferred an appeal in C.M.A. (MD)No.876 of 2023 and this Court, vide order dated 05.10.2023, set aside the order dated 30.11.2022, passed by the learned Principal District Judge and the matter was remanded back to the trial Court for giving an opportunity to the appellant/petitioner to substitute minor's father and also directed to give opportunity to the appellant/petitioner to make suitable amendment, produce evidence and to decide the case on merits and in accordance with law.

6. In pursuance of the direction of this Court, the second petitioner got himself impleaded in the main G.W.O.P., and both parents have proceeded with the permission petition. During the earlier trial, the first petitioner was examined as P.W.1 and 7 documents came to be exhibited as Exs.P.1 to P.7 and after remand and impleadment of the second petitioner, the second petitioner was examined as P.W.2 and 3 documents came to be exhibited as Exs.P.8 to P.10. The learned District Judge, upon considering the evidence adduced and on hearing the arguments of both sides, passed the impugned order dated 12.09.2024 dismissing the petitioner. Aggrieved by the order of dismissal, the petitioners have preferred the present Civil Miscellaneous Appeal.

7. It is pertinent to mention that the learned District Judge, previously by assigning two reasons namely that when the natural guardian of the minor ie., his father is alive, the permission petition filed by the mother is not maintainable and that retaining the immovable property would be more beneficial to the minor than selling the immovable and investing the money in fixed deposits. A learned Judge of this Court, while accepting the view of the trial Court that the permission petition filed by the mother during the lifetime of the father was not legally maintainable, at the same time, observed that considering the lie and nature of the property, particularly, in the absence of proper access, there existed a valid ground for selling the property. But in the impugned order, the learned District Judge has observed that the petitioners have neither pleaded nor established that the proposed alienation of the petition mentioned property is either necessary or advantageous to the minor.

8. The learned Counsel appearing for the petitioners would contend that, after the sale effected by the second petitioner and his brother Manickanathan, the minor was left with only his share in the petition mentioned property and that, considering the lie of the property and the existence of only a narrow pathway for access to the said land, retention of the property would not be in the interest of the minor. Therefore, the petitioners were constrained to take a decision to sell the minor's share in the petition mentioned property. The learned Counsel would further submit that, out of the total sale consideration of Rs.10,00,000/-, a sum of Rs.6,50,000/-, being the advance amount, has already been deposited in the name of the minor son in Indian Overseas Bank, Velliyanai Branch, in a fixed deposit for a period of 96 months, i.e., till he attains majority. It is also submitted that the second petitioner has purchased another property in the name of the minor son for his welfare and benefit.

9. As already pointed out, the learned District Judge by the impugned order, dismissed the petition by merely observing that the petitioners had neither pleaded nor proved that the proposed alienation was in the interest and welfare of the minor. The said conclusion has been recorded without any proper discussion as to the lie and nature of the property, the necessity projected by the petitioners or the attendant circumstances relevant for deciding whether the proposed transaction would be beneficial to the minor.

10. It is well settled that, while considering an application seeking permission to alienate the minor's immovable property, the paramount consideration is whether the proposed transaction is necessary or manifestly beneficial to the minor. In the case on hand, the location, accessibility and the utility of the property sought to be sold assume significance. As already pointed out, the materials placed show that the property had only limited access as there existed merely a narrow pathway leading to the properties and consequently, the beneficial enjoyment and utility of the property stood seriously affected.

11. Taking note of the above circumstances, coupled with the conduct of the petitioners in having deposited the advance amount in the minor's account and the second petitioner having purchased another property in the name of minor son, this Court is satisfied that the proposed alienation is intended for and would enure to the benefit of the minor. The petitioners have also specifically undertaken to deposit the balance sale price in the minor's account till he attains majority. As rightly pointed out by the learned Counsel for the petitioners, the learned District Judge, without properly appreciating the evidence available on record and the attending circumstances, has mechanically proceeded to reject the petition. Hence, this Court has no hesitation in holding that the impugned order is not sustainable and the same is liable to be set aside. Consequently, this Court concludes that the petitioners are entitled to the permission sought for, subject to necessary conditions.

12. In the result, the Civil Miscellaneous Appeal is allowed and the order passed by the Principal District Judge, Karur, in G.W.O.P.No.13 of 2022, dated 12.09.2024, is set aside. The petitioners are permitted to alienate the minor’s property, subject to the following conditions:

                  (a) the entire sale consideration shall be deposited in the name of the minor, in an interest-bearing fixed deposit in a nationalised bank, till he attains majority;

                  (b) the amounts so deposited shall not be withdrawn or encumbered by the petitioners without obtaining prior permission from the competent Court;

                  (c) the petitioners shall ensure that the property purchased by the second petitioner in favour of the minor son shall continue to stand exclusively in the name of the minor and shall not be alienated or encumbered till he attains majority, except with the leave of the competent Court.

There shall be no order as to costs.