Final Order 1

Order Details: Other
Pdf Text: 1 Guardian Petition No.195/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
GUARDIAN PETITION NO. 195 OF 2019
Ms. Vidya Kunal Khanolkar
@ Ms. Vidya Achyut Mahajan
aged about 32 years, Religion
Hindu, residing at 128/4536,
New Tilak Nagar, Chembur,
Tilak Nagar, Mumbai 400 089 ...Petitioner.
Appearance: Adv. Mr. Anand Jadhav for the Petitioner.
Coram : Ashutosh N. Karmarkar,
Judge, (Court Room No. 54)
Dated : 11th November, 2019
ORDER
1. The petitioner has prayed for appointing herself as a
guardian to the person and property of the minor. The petitioner is
seeking NOC to sell the property as described in the petition.
2. Ms. Kimaya Kunal Khanolkar @ Ms. Kimaya Vidya
Mahajan, aged about 4 years is residing on the given address in the
application i.e. of Chembur. The petitioner Vidya, is mother of minor.
The petitioner has changed the name of minor Kimaya Kunal Khanolkar
as named Ms. Kimaya Vidya Mahajan. It is published in Government
Gazette dated 1521 June, 2017. The petitioner is the natural mother
of minor.
3. The Family Court Mumbai, by its order and decree dated
16.03.2017 in Divorce Petition No. 434 of 2016, has dissolved the
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marriage of the petitioner and her husband Kunal. As per the consent
terms and as per the said order the sole custody of the minor Kimaya
was handed over to the petitioner. As per the consent terms in the
Divorce Petition, the petitioner's husband has transferred flat i.e.
immovable property Flat No. B 205, B Wing, Second Floor, Sarita CHS
Ltd., village Diwanman, Vasai (W), Dist. Palghar, in the name of
petitioner and minor daughter Ms. Kimaya by registered sale deed
dated 28.02.2017. The said flat is now transferred in the name of the
petitioner and minor child Kimaya. The said flat valued at Rs. Rs.24
lakhs. The judgment and decree of Family Court is still in force.
4. The petitioner and her minor daughter are mostly
dependent on the father of the petitioner who resides in Chembur,
Mumbai, for the wellbeing of the minor child. According to the
petitioner, the said minor daughter needs family around herself for her
best interest. For the purpose of upbringing the minor the best place to
go to school and to reside would be near family members i.e. Chembur.
The above noted flat is situated at Vasai (W). It will be very difficult for
minor child and there will be harassment to her to travel from Vasai to
Chembur for education. So, the petitioner wants to sell the said flat in
Vasai.
5. As per the consent terms in the divorce petition only lump
sum maintenance of Rs. 10 lakh was given by the husband of the
petitioner for minor child. That amount is ordered to be kept in fixed
deposit as per the order of the court till attaining her age of majority.
According to the petitioner, it is difficult for the petitioner being single
mother to look after daytoday needs and educational expenses of
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minor. She needs source of money for upbringing and maintaining the
minor. The market value of the property is Rs. 24 lakh. The share of
the minor is 50% in the said flat, the petitioner will deposit 50% share
of the sale consideration i.e. Rs. 12 lakhs in the name of minor Kimaya
and will not withdraw the same amount till attaining majority of minor
girl or without taking permission of the Court.
6. The petitioner had decided to sell the property for Rs. 24
lakhs to Ms. Jaya Arun Dhangar. They entered into MOU in October,
2018. The petitioner is seeking permission to appoint herself as a
guardian for the property and person of minor. The petitioner is
serving and earning salary regularly. The petitioner's nearest relatives
have no objection for appointing the petitioner as a guardian in person
and property of minor.
7. Advocate for the petitioner has submitted that, this petition
is filed under the Guardians and Wards Act. The marriage between the
petitioner and her husband Kunal has been dissolved by the order and
decree passed in divorce petition by the Family Court Mumbai. As per
the consent terms in that proceeding, the husband of the petitioner had
already gifted the flat mentioned in the application in the name of
petitioner and minor child Kimaya, for that purpose he has invited my
attention to page 50. He has invited my attention to the memo of
understanding at page 55 and 57 regarding her intention to sell the
property to Smt. Jaya Dhangar for Rs. 24 lakhs. The petitioner's father
and brother have filed their affidavit of their NOC to the petitioner to
appoint herself as a guardian of minor, copy of birth extract of minor,
copy of order of Family Court, Consent terms and true copies of gift
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deed. Copy of IndexII is filed to show that the property is gifted to the
petitioner and her minor daughter.
8. It appears that birth date of the minor Kimaya is
18.06.2015. Copy of her Aadhar Card is filed, copy of Government
Notification is filed to show that the name of minor is changed from
Kimaya Kunal Khanolkar to Kimaya Vidya Mahajan. It appears from the
order and decree of the Family Court that the marriage of the petitioner
with Kunal has been dissolved by the order and decree dated
16.03.2017. As per the said order, consent term Exh.21 was part of the
decree, it clearly shows that custody of the minor will remain with this
petitioner. It was also agreed in the consent terms to transfer the flat
No. B205, 'B' Wing in Sarita CHS Ltd. Village Diwanman, Vasai (W), in
the name of this petitioner and minor daughter. The petitioner has
filed affidavit Exh.G in support of the contents in application. She has
assured to keep an amount of Rs. 12 lakhs out of the consideration
towards share of minor in fixed deposit. She has contended that, she is
selling property for welfare of the child. Affidavit in support of the
application is also filed at page 81.
9. For granting permission to sell the minor's property,
welfare and cause of the minor is required to be seen. It appears that
the petitioner and minor is residing with father of the petitioner at
Chembur. According to her, the minor should be in the company of
family members. It is also contended that, for the purpose of
upbringing the minor, it will be proper to have a school near the place
where the family members are residing. It is also contended that, it will
be difficult for minor to go to Chembur from Vasai where the flat is
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situated.
10. Considering the age of minor, it appears that there is some
substance in the grounds mentioned in the application for allowing the
applicant to sell the property of minor.
11. It appears that, the petitioner has agreed to sell the said flat
mentioned in the schedule of the property Exh.G for Rs. 24 lakhs. It
shows that the market value of the flat is Rs. 21,75,000/. The
petitioner has also placed on record ready reckoner value of those
property which is obtained from the office of subRegistrar Exh.4. It
shows that the Government value of the flat as per ready reckoner is
Rs.21,30,880/. It appears that the sale consideration agreed within the
party is more than Government value. The petitioner has contended
that the petitioner is single mother who has to look after the child and
her education as well daily expenses. This property was gifted to the
petitioner and her minor child so, there is no reason to disbelieve the
contention that both have 50% share.
12. Considering these facts, it will be proper to allow the
application in the interest of welfare of minor girl on condition.
Accordingly, I proceed to pass order in following terms.
ORDER
1. Guardian Petition No. 195 of 2019 is hereby allowed.
2. Petitioner is appointed as Guardian of minor Ms. Kimaya Kunal
Khanolkar @ Ms. Kimaya Vidya Mahajan for her person and property.
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3. The Petitioner is allowed to sell property i.e. Flat No. 205, in
Sarita CHS as described in Schedule ExhibitG as contended in the
application affidavit and documents
4. The petitioner shall deposit an amount of Rs. 12 lakhs towards
share of the minor in the sell consideration amount in fixed deposit in
any nationalised bank till attaining age of majority.
5. The petitioner shall not withdraw an amount without permission
of the Court.
6. The petitioner shall produce on record copy of FD within two
months of amount deposit in fixed deposit.
7. Guardian Petition No. 195/2019 is disposed off accordingly.
( Ashutosh N. Karmarkar )
Judge,
Date : 11.11.2019 City Civil Court, Gr. Mumbai.
Dictated on : 11.11.2019
Transcribed on : 13.11.2019
Date of sign : 18.11.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 18.11.2019 2.55 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
11.11..2019
JUDGMENT /ORDER signed by P.O. on 18.11.2019
JUDGMENT /ORDER uploaded on 18.11.2019
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