Hemraj vs General Public on 8 September, 2017

HIGH COURT OF MADHYA PRADESH, JABALPUR

Miscellaneous Appeal No.1298/2017

Appellants: 1. Hemraj, S/o Shri Kashiram Kurmi
Patel, aged about 35 years.

2. Ankit Patel, S/o Shri Hemraj, aged
about 13 years.

Both are resident of Village Sakin
Thana, Tahsil Patan, Jabalpur
(M.P.)

-Vs-.

Respondent : General Public (MP)

Present : Hon. Shri Justice S.K. Gangele
Hon. Shri Justice Anurag Shrivastava

Shri Vishal Dhagat, Advocate and Shri V.S. Shukla,
Advocate, Advocate for the appellants.

Whether approved for reporting: Yes/No

JUDGMENT

(08.09.2017)
Per Anurag Shrivastava, J.

The appellant preferred present appeal under Section
47 (e) of Guardians and Wards Act, 1890 (hereinafter
referred as “Act”), being aggrieved of order dated 22.04.2017
passed by VI Additional District Judge, Jabalpur (M.P.) in
Guardians and Wards Case No.26/2016, whereby the
application moved by appellants under
Section 29 of the Act
for permission to sale the land of appellant No.2 is dismissed.

2. Appellant No.1 Hemraj is father and guardian of
appellant No.2 Ankit Patel, aged about 13 years. Appellant
2 M.A. No.1298/2017

No.1 has purchased a land bearing Khasra No.210/1 area
0.300 hect. situated in P.H. No.10, Tahsil Patan by registered
sale deed dated 07.06.2006 on the name of his son Ankit
Patel. Entire sale consideration has been paid by him out of
his income. Since this land is situated in remote area and
difficult to manage, therefore, appellant No.1 wants to sale
this land and purchased another land, which is nearer to his
house on the name of his son Ankit Patel. The appellants
moved an application under
Section 29 of Act before the trial
Court for grant of permission to sale the land of minor. This
application has been rejected by the Court by passing the
impugned order dated 22.04.2017. Against this order the
present appeal has been preferred.

3. In present appeal even after publication of notice no
one came forward to oppose the prayer of appellants.

4. It is argued by the learned counsel for the appellants
that the trial Court has dismissed his application only on the
ground that the agreement to purchase the new land near
the house of appellants dated 06.05.2017 is executed in
favour of appellant No.1 Hemraj, which is not in benefit of
minor. Whereas, the trial Court committed an error of fact
and law as to not considering the legal position that no
agreement to sale the property can be entered with the
minor. Since, appellant No.1 wants to purchase the land on
the name of his son, therefore, it is beneficial in the interest
of minor.

5. Considering the contention of learned counsel for the
appellants and on perusal of record, it appears that,
appellant No.1 Hemraj is father of appellant No.2 Ankit Patel
3 M.A. No.1298/2017

who is aged about 13 years. The land Khasra No.210/1 area
0.300 hect. was purchased by him on 05.06.2006 on the
name of his son. Now, appellant No.1 was to purchase the
land in the same village, near his house, which would be
more profitable in future and convenient to manage. In his
statement appellant No.1 Hemraj has also filed a copy of
Ex.P/6 and disclosed the fact that he is going to purchase a
new land area 0.40 hect. which is part of land bearing Khasra
No.21/5 area 1.80 hect. situated in village Mihgawan for the
sale consideration of Rs.7 Lacs.

6. Since, appellant No.1 Hemraj is father and natural
guardian of appellant No.2, therefore, he is the best person
to judge what is best in the interest of his son. Earlier the
land Khasra No.210/1 was also purchased by him on the
name of his son. Therefore, we can safely rely on his
statement that the new land, which he wants to purchase is
better situated and beneficial in future for his son. Appellant
No.1 has assured us that the new land is to be purchased on
the name of his son. We accept the explanation given by
appellant No.1 that agreement to purchase the new land was
executed on his name only on the ground that a minor
cannot enter into contract. In view of aforesaid, learned trial
Court has committed error in dismissing the petition for grant
of permission to sale the land, where nobody came forward
to object it.

7. Thus, the appeal is allowed. The impugned order
passed by trial Court is set-aside and appellant No.1 Hemraj
is granted permission to sale the land Khasra No.210/1 area
0.300 hect. recorded on the name of appellant No.2 Ankit
Patel in order to purchase a new land on the name of his
4 M.A. No.1298/2017

minor son Ankit Patel. The permission is granted subject to
furnishing of an undertaking and surety, as directed by the
trial Court in this regard stating that appellant No.1 will
purchase the new land on the name of his minor son,
utilizing the sale consideration received from sale of minor’s
land.

8. This permission shall remain in force for six months
only, during this period the appellant shall sale the land of
minor and purchase a new land on the name of his son and
submit a copy of both sale deeds before the trial Court with
his affidavit to show the compliance.

(S.K. Gangele) (Anurag Shrivastava)
Judge Judge

Vin**

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