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Kalaria Kanchanben vs Unknown on 11 August, 2017

C/FA/1431/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

FIRST APPEAL NO. 1431 of 2017

KALARIA KANCHANBEN W/O. KIRITBHAI….Appellant(s)
Versus
…..Defendant(s)

Appearance:
MR AMAR D MITHANI, ADVOCATE for the Appellant(s) No. 1
MR. VENUGOPAL PATEL, AGP for the Respondent (s) No.1 – State

CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

Date : 11/08/2017

ORAL ORDER

1. The present First Appeal has been filed by the
appellant – applicant challenging the judgment and
order dated 02.07.2016 passed by the 3rd Additional
District Judge, Morbi (hereinafter referred to as ‘the
trial Court’) in Civil Misc. Application No. 12 of
2016, whereby the trial Court has dismissed the
application of the appellant – applicant seeking
permission to sell the share of the minor child Nancy
in the properties being Survey No. 645/1 and 646/1
situated at Village Chakampur, Taluka, District Morbi
under the provisions contained in the Guardians and
Wards Act, 1890. The said application having been
rejected by the trial Court, the present First Appeal
has been filed. The appellant has also filed a Civil
Application for impleading the father of the minor

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C/FA/1431/2017 ORDER

child i.e. the husband of the appellant as party
appellant No.2 in the appeal.

2. It is submitted by the learned advocate Mr. Amar
Mithani for the appellant that the appellant does not
have sufficient funds to bear the expenses of the
studies of the minor child Nancy. According to him,
the father of the child does not have any objection if
the share of the minor in the suit lands is sold out.
Mr. Mithani, learned advocate has relied upon the
provisions contained in Section 6 of the Hindu
Minority and Guardianship Act, 1956 (hereinafter
referred to as ‘the Minority Act’), and also Section
29 of the Guardians and Wards Act to submit that it
was in the interest of minor to sell her share, and
therefore, the permission be granted. However, the
learned AGP Mr. Patel objecting the very
maintainability of the proceedings filed by the
appellant submitted that the father is the natural
guardian of the minor and the mother can act as
guardian only in absence of father. According to him,
the entire application filed at the instance of the
appellant was misconceived.

3. Having regard to the submissions made by the
learned advocates for the parties, and to the order
passed by the trial Court, it appears that the
appellant, who is the mother of the minor child named
Nancy, had filed the application seeking permission of
the Court to sell the share of the said minor in the
suit lands. It is needless to say that as per Section

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C/FA/1431/2017 ORDER

6 of the Minority Act, the natural guardian of the
Hindu minor in respect of the minor’s person as well
as in respect of the minor’s property is the father,
and after him, the mother. The Supreme Court in the
case of Ms. Githa Hariharan and another versus
Reserve Bank of India and another reported in AIR
1999 SC 1149, has interpreted the word ‘after’
appearing in the said Section 6, by holding as under :

“46. In our opinion the word ‘after’ shall
have to be given a meaning which would sub-
serve the need of the situation viz.,
welfare of the minor and having due regard
to the factum that law courts endeavour to
retain the legislation rather than
declaring it to be a void, we do feel it
expedient to record that the word ‘after’
does not necessarily mean after the death
of the father, on the contrary, it depicts
an intent so as to ascribe the meaning
thereto as ‘in the absence of’ – be it
temporary or otherwise or total apathy of
the father towards the child or even
inability of the father by reason of
ailment or otherwise and it is only in the
event of such a meaning being ascribed to
the word ‘after’ as used in S. 6 then and
in that event the same would be in
accordance with the intent of the
legislation viz. welfare of the child.”

4. In view of the above, though the father and
mother are natural guardians in terms of the
provisions of Section 6 read with Section 4(c), the
natural guardian of a minor in respect of the minor’s
person as well as minor’s property in case of a boy
and an unmarried girl is father, and after him the
mother. Hence, mother could be natural guardian in

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C/FA/1431/2017 ORDER

absence of the father or in case where there is total
apathy of the father towards the child or inability of
the father by reason of ailment or otherwise. In the
instant case, there is nothing on record to suggest
that the father of minor was not taking care of the
minor or was unable to take care of the minor.
Therefore the appellant who is the mother, could not
have filed the application before the trial Court.

5. So far as selling the minor’s share in the lands
in question is concerned, as per Section 8 of the
Minority Act, the natural guardian without previous
permission of the Court, cannot mortgage or charge, or
transfer by sale, gift, exchange or otherwise, any
part of the immovable property of the minor. As per
Subsection 4 of Section 8, the Court cannot grant
permission to the natural guardian except in case of
necessity or for an evident advantage of the minor.
The learned advocate Mr. Mithani has not been able to
show as to how the sale of the minor’s share in the
suit lands is in interest or for the advantage of the
minor.

6. Mr. Mithani lastly relied upon the judgment of
Bombay High Court in the case of Sandhya Rajan
Antapurkar versus State of Maharashtra, 1999 LawSuit
(Bom) 731, to submit that as such no permission of the
Court was required, if the share of the minor in the
property belonging to joint Hindu family was to be
sold. The said submission also cannot be accepted as
there is nothing to show that the suit lands were the

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C/FA/1431/2017 ORDER

joint family properties. If no such permission was
required, the appellant would not have filed the
application.

7. The trial Court having rightly dealt with the
entire issue in the impugned order, the Court is not
inclined to interfere with the same.

8. In that view of the matter, the present appeal
being devoid of merits, is dismissed. Notice is
discharged.

(BELA M. TRIVEDI, J.)
Amar

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