Minor Jay Dakshshbhai Panchal vs Jayantibhai Somnath Panchal & 6 on 14 September, 2017

C/SCA/16481/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16481 of 2017

MINOR JAY DAKSHSHBHAI PANCHAL….Petitioner(s)
Versus
JAYANTIBHAI SOMNATH PANCHAL 6….Respondent(s)

Appearance:
MR PAWAN A BAROT, ADVOCATE for the Petitioner(s) No. 1
MR Y J PATEL, ADVOCATE for the Petitioner(s) No. 1
JAGAT V PATEL, ADVOCATE for the Respondent(s) No. 1 – 7
MR. RAHIL P JAIN, ADVOCATE for the Respondent(s) No. 1 – 7

CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 14/09/2017
ORAL ORDER

1. In the present matter, notice was issued for final disposal. The
matter is thus taken up today for final disposal. The present petition
is filed under Articles 226 and 227 of the Constitution of India
challenging the order dated 22.07.2017 passed by learned Principal
District Judge, Gandhinagar in Civil Misc. Application No.14 of 2017.

2. The Civil Misc. Application No.14 of 2017 was filed by Hemaben
Daksheshbhai Panchal – the mother and natural guardian of minor
“Jay Daksheshbhai Panchal” under Sections 8 and 10 of the Hindu
Minority And Guardianship Act, 1956 (“the Act”) seeking permission
to sell the properties mentioned in paragraph No.3 of the application
to the extent of right, interest and share of minor “Jay” therein.

3. Section 8 of the Act reads as under:

“8. Powers of natural guardian

(1) The natural guardian of a Hindu minor has power,
subject to the provisions of this section, to do all acts which
are necessary or reasonable and proper for the benefit of

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the minor or for the realization, protection or benefit of the
minor’s estate; but the guardian can in no case bind the
minor by a personal covenant.

(2) The natural guardian shall not, without the previous
permission of the Court, –

(a) mortgage or charge, or transfer by sale, gift, exchange
or otherwise, any part of the immovable property of the
minor, or

(b) lease any part of such property for a term exceeding
five years or for a term extending more than one year
beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural
guardian, in contravention of sub-section (1) or sub-section
(2), is voidable at the instance of the minor or any person
claiming under him.

(4) No Court shall grant permission to the natural guardian
to do any of the acts mentioned in sub-section (2) except
in case of necessity or for an evident advantage to the
minor.

(5) The Guardians and Wards Act, 1890, shall apply to and
in respect of an application for obtaining the permission of
the Court under sub-section (2) in all respects as if it were
an application for obtaining the permission of the Court
under
section 29 of that Act, and in particular –

(a) proceedings in connection with the application shall be
deemed to be proceedings under that Act within the
meaning of
section 4A thereof;

(b) the Court shall observe the procedure and have the

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powers specified in sub-sections (2), (3) and (4) of section
31 of that Act; and

(c) an appeal shall lie from an order of the Court refusing
permission to the natural guardian to do any of the acts
mentioned in sub-section (2) of this section to the Court to
which appeals ordinarily lie from the decisions of that
Court.

(6) In this section, “Court” means the City Civil Court or a
District Court or a Court empowered under
section 4A of
the Guardians and
Wards Act, 1890, within the local limits
of whose jurisdiction the immovable property in respect of
which the application is made is situate, and where the
immovable property is situate within the jurisdiction of
more than one such Court, means the Court within the
local limits of whose jurisdiction any portion of the property
is situate.”

4. Section 12 of the Act reads as under:

“12. Guardian not to be appointed for minor’s
undivided interest in joint family property

Where a minor has an undivided interest in joint family
property and the property is under the management of an
adult member of the family, no guardian shall be appointed
for the minor in respect of such undivided interest.

Provided that nothing in this section shall be deemed to
affect the jurisdiction of a High Court to appoint a guardian
in respect of such interest.”

5. Learned Judge has rejected the application by impugned order
on the ground that by virtue of
Section 12 of the Act, the application
for appointment of the guardian of the property of the minor and to

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sell such property for the betterment of the minor has to be made
before the High Court, having jurisdiction.

6. Learned advocate Mr.YJ Patel appearing for the petitioner
submitted that learned Judge has rejected the application on wrong
interpretation of
Section 12 of the Act. He submitted that as clearly
provided in
Section 8 of the Act, the jurisdiction to deal with and
decide the application under
Section 8 is with the District Court and
Section 12 has no application. He has also referred the provisions of
Guardians and
Wards Act, 1890.

7. Learned advocate Mr.Jagat V Patel appearing for the
respondents could not dispute that
Section 8 read with the provisions
of Guardians and
Wards Act, 1980 would confer jurisdiction to the
District Court to decide the application filed under
Section 8 of the
Act.

8. The Court having heard learned advocates for both the sides
finds that as provided in
Section 8(5) and 8(6), it will be the District
Court which has jurisdiction to deal with the application made under
Section 8 by the petitioner. Section 12 has no application as it
provides that no guardian for undivided interest of minor in joint
family property shall be appointed where the property is under the
management of an adult member of the family, however, as per
proviso, nothing provided above shall be deemed to affect the
jurisdiction of the High Court to appoint a guardian in respect of such
interest. Thus,
Section 12 is not the provisions whereunder the
District Court is prevented from deciding the application made under
Section 8 of the Act. Thus, the District Court has jurisdiction to decide
the application under
Section 8 of the Act. At this stage, reference is
also required to be made to
Section 4A and 29 of Guardians and
Wards Act, 1890. They read as under:

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4A. Power to confer jurisdiction on subordinate
judicial officers and to transfer proceedings to such
officers

(1) The High Court may, by general or special order,
empower any officer exercising original civil jurisdiction
subordinate to a district court, or authorise the Judge of any
District Court to empower any such officer subordinate to
him, to dispose of any proceedings under this Act
transferred to such officer under the provisions of this
section.

(2) The Judge of a District Court may, by order in writing,
transfer at any stage any proceeding under this Act
pending in his court for disposal to any officer subordinate
to him empowered under sub-section (1).

(3) The Judge of a District Court may at any stage transfer
to his own court or to any officer subordinate to him
empowered under sub-section (1) any proceeding under
this Act pending in the court of any other such officer.

(4) When any proceedings are transferred under this
section in any case in which a guardian has been appointed
or declared, the judge of the District Court may , by order in
writing, declare that the Court of the Judge or officer to
whom they are transferred shall, for all or any of the
purposes of this Act, be deemed to be the court which
appointed or declared the guardian.

29. Limitation of powers of guardian of property
appointed or declared by the court

Where a person other than a Collector, or than a guardian
appointed by will or other instrument, has been appointed
or declared by the court to be guardian of the property of a

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ward, he shall not without the previous permission of the
court, –

(a) mortgage or charge, or transfer by sale, gift, exchange
or otherwise, any part of the immovable property of his
ward, or

(b) lease any part of that property for a term exceeding five
years or for any term extending more than one year
beyond the date on which the ward will cease to be a
minor.

Thus, as per the provisions of Section 8(5) and 8(6) of the Act read
with
Section 4A and 29 of the Guardians and Wards Act, 1890, it is
the District Court which has jurisdiction to decide the application
made by the petitioner u/s 8 of the Act.

9. In above view of the matter, the impugned order is required to
be quashed and set aside and the matter is required to be remitted to
learned Principal District Judge to decide the application on his own
merits and in accordance with law.

10. In view of the above, the impugned order is quashed and set
aside. The matter is remitted to learned Principal District Judge,
Gandhinagar to decide Civil Misc. Application No.14 of 2017 filed by
the petitioner on its own merits and in accordance with law. Learned
Principal District Judge shall made endeavor to decide the said
application within a period of four weeks from the date of the receipt
of the order.

Direct service is permitted.

(C.L.SONI, J.)
Gupta*

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