Final Order 1

Order Details: Other
Pdf Text: 1 Guardian Petition No.156/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
GUARDIAN PETITION NO. 156 OF 2019
Mrs. Candida Fernandes
W/o Melwin Luis Fernandes
Age 40 years, Occ: Housewife
Religion Christian, Residing at
Flat No. 11/137, Prem Sankalp
Coop. Hsg. Socy. Ltd., SherE
Punjab Soct., Mahakali Caves
Road, Andheri (E),
Mumbai, 400 093 ...Petitioner/Applicant
Appearance: Adv. Mr. Srivastava for the Petitioner.
Coram : Ashutosh N. Karmarkar,
Judge, (Court Room No. 54)
Dated : 3rd January, 2020
ORDER
1. The applicant has prayed for permission to sell the property
of the minor child i.e. Flat No. 11/137, Prem Sankalp Coop. Hsg. Socy.
Ltd., Andheri (E).
2. The applicant is residing in the said flat which she wants
permission to sell. She was married to late Melwin Luis Fernandes on
28.11.2005. The applicant gave birth child from their wedlock on
25.04.2016. The applicant's husband died on 15.08.2015 at Virginia
(U.S). The deceased left behind him, the applicant and minor child.
The minor child is school going. He is governed by Christian Law. The
applicant needs amount to meet expenses towards cost of education,
maintenance, marriage expenses and payment of hospital bill for minor.
The medical treatment is going on for the minor child since birth due to
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undeveloped kidney and urinary tract. The applicant wants to sell the
said flat for Rs.66,00,000/. She wants to discharge the debts which
she had taken for treatment of minor child. Doctor from Lilawati
Hospital has advised further surgery of minor for better working of
kidney. She wants to save amount for future education of the minor
son. The said transaction is for the benefit of minor. The applicant's
son was admitted in the hospital after 8 days of the birth. The applicant
has taken loan of more than 10 lakhs from her relatives to meet
expenses of surgery. She may require more Rs.5 lakhs for further
surgery. The applicant is housewife. She is not earning member. The
applicant's real brother had taken loan in his name to give the same to
the applicant. The applicant has entered into agreement to sell the
property to Mrs. Aparna Dhasmana and Mr. Dilip Dhasmana. According
to her, valuer has valued the said flat as Rs.65,79,425/.
3. I have heard Ld. Advocate for the applicant. According to
him, the applicant is in need of money to incur the expenses for surgery
of minor child. It is submitted that, the minor child is having kidney
and urinary tract ailment. Earlier also he was admitted in Lilawati
Hospital. It is also submitted that, considering this ground, sale
transaction for Rs.66,00,000/ can be said to be in the interest of minor.
The public notice was published in The Free Press Journal news paper
but nobody has come forward to raise objection. It appears that the
husband of the applicant had died on 15.08.2015. Copy of his death
extract is filed. The age of the applicant's minor son is about 3 years.
Copy of share certificate of the Cooperative Housing Society in which
the flat is situated is placed on record. It seems that the flat No.11/137,
in Prem Sankalp Coop. Hsg. Socy. Ltd., is transferred in the name
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applicant's husband in 2006. Copy of MOU in between the present
applicant and the proposed purchaser Aparna and Dilip Dhasmana is on
record. The proposed purchasers have agreed to purchase the said flat
for Rs.66,00,000/ and the applicant has accepted the earnest amount
of Rs.1,00,000/.
4. The applicant has come with the case that after the birth of
minor, the applicant was required to admit her minor son in the
hospital due to his urinary tract problem. She has obtained amount as a
loan from her brother. According to her, she has taken loan of more
than Rs.10 lakhs. Secondly, the Doctor has suggested further surgery
which may require Rs. 5 lakhs. It does not reveal from the documents
on record that more than Rs.10 lakhs are spent by the applicant as
contended. It appears from the discharge card dated 26.11.2016, since
the child was stable, he was discharged. There is no document to
support the contention of the applicant that the Doctor has now further
advised to have another surgery and for that purpose, she would require
Rs.5 lakhs.
5. The applicant has also contended that the applicant is in
need of money to meet expenses for education costs and maintenance
of minor child and also for marriage expenses. The applicant's son is 3
years of age, there may not be huge expenses for education.
Considering the age of child, maintenance cost may not be high.
6. It seems that the applicant wants to sell the flat in Prem
Sankalp Coop. Hsg. Socy. Ltd., for Rs. 66 lakhs. It appears that the
said flat is admeasuring 565 Sq.ft. The documents vide list Exh.3 shows
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that the built up area would be 52.51 sq.mtrs. According to the
applicant, the valuer has valued the said flat at Rs. 65,79,425/. The
valuer has mentioned ready reckoner rates of Rs.1,48,600/ per sq.mtr.
Copy of ready reckoner are also filed with pursis Exh.3. As per ready
reckoner costs of the flat would be more than Rs.78 lakhs. It seems that
the said flat was constructed in 1988, but the valuer has reported that
future life of the property would be 29 years subject to proper
maintenance. It also cannot be ignored that all civic amenities are
nearby to the said society where the said flat is situated, so certainly the
seller will get much more amount than the agreed amount in this
matter.
7. Considering these facts, the said transaction of sale of the
flat cannot be said to be in the interest of and for the benefit of minor.
There is contention of expenses for surgery of minor, other remedies are
available for the applicant to manage the funds under different scheme
of Government, if really she had no income as contended.
8. The applicant has come with the case that she is non
earning member at the time of filing of this petition i.e. on 30.04.2019.
This applicant has shown her residence in the same Flat No. 11/137,
Prem Sankalp Coop. Hsg. Socy. Ltd., Andheri (E). The valuer has
inspected the said flat on 18.04.2019 i.e. before filing of the application.
It is reported in his valuation report that the said property is occupied
by tenant Mr. Dilip Dhasmana, who appears to be one of the proposed
purchaser. So, certainly the applicant must be getting rent. She has not
mentioned this fact in the application. It does not appear that the
applicant has come with the clean hands.
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9. For the reasons stated in foregoing paras, it cannot be said
that the applicant is entitled for the relief claimed. Therefore, I am of
the opinion that the application deserves to be rejected. Accordingly, I
proceed to pass order in following terms.
ORDER
Guardian Petition No. 156 of 2019 is hereby rejected and
disposed off accordingly.
( Ashutosh N. Karmarkar )
2nd Addl.Principal Judge,
Date : 03.01.2020 City Civil Court, Gr. Mumbai.
Dictated on : 03.01.2020
Transcribed on : 06.01.2020
Date of sign : 06.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 06.01.2020 3.50 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri A.N. KARMARKAR
(C.R.No.54)
Date of Pronouncement of
JUDGMENT /ORDER
03.01.2020
JUDGMENT /ORDER signed by P.O. on 06.01.2020
JUDGMENT /ORDER uploaded on 06.01.2020
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