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Kailashben W/O Keshavbhai … vs Not Applicable on 27 July, 2021

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C/FA/1944/2021 ORDER DATED: 27/07/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 1944 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 1944 of 2021

KAILASHBEN W/O KESHAVBHAI CHHAGANBHAI PATEL
Versus
NOT APPLICABLE

Appearance:
KRISHAL H PATEL(9644) for the Appellant(s) No. 1
MR SAURIN A MEHTA(470) for the Appellant(s) No. 1
for the Defendant(s) No. 1

CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

Date : 27/07/2021

ORAL ORDER

1. In this appeal under section 47 of the Guardians and Wards Act
(GNW Act for short) read with section 96 of the Code of Civil Procedure,
1908 (the Code for short), the appellant has assailed the judgment and
order dated 5.7.2021 passed by the learned Second Additional District
Judge, Dhangadhra in Civil Miscellaneous Application No.14 of 2020
whereunder the application under section 9 of the GNW Act for
permission to sell the undivided share of minor is rejected.

2. Heard Mr. Saurin Mehta, learned advocate for the appellant.

3. Mr. Mehta submits that the application preferred by the appellant
under section 9 of the GNW Act was not adversarial as no objections
were filed for not granting the permission to sell the undivided share of
the minor son of the appellant. Relying upon the decision of this court in
the case of
Sankhala (Mali) Kantaben Wd/o Bharatbhai Laljibhai v.
Rabari Panchabhai Chelabhai reported in AIR 2020 Guj. 205, he

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submits that as such under section 12 of the GNW Act, no permission is
required to sell the undivided share of minor. He, therefore, urges that the
impugned judgment may be set aside and the appellant may be permitted
to sell the undivided share of her minor son.

4. This court in the case of Sankhala (Mali) Kantaben Wd/o
Bharatbhai Laljibhai v. Rabari Panchabhai Chelabhai (supra) has
observed as under:-

“1. This appeal seeks to challenge the order dated 07.09.2019
rendered in Civil Misc. Application No. 32 of 2019 by the learned 2nd
Additional District Judge at Deesa, District Banaskantha declining the
permission to sale the property of minor under
Section 12 of the
Guardians and
Wards Act.

2. On consideration of the submissions made by the
learned Counsel for the appellant and on perusal of the impugned
order, it would transpire that the appellant is the mother of the minor in
absence of the father who expired on 10.01.2017. It appears that the
properties sought to be sold comprises undivided interest of the minor
in the joint family property. As the following discussion would
show that for conveyance of such interest of minor, permission
contemplated under
Section 8(2) of the Hindu Minority and
Guardianship Act, 1956 would not be necessary. The Court below in
this regard was not properly assisted.

3. Learned Counsel for the appellant has relied upon Sections 6, 8
and
12 of the Hindu Minority and Guardianship Act, 1956, to contend
that in case of an undivided share of the minor in the joint
family property, no permission of the Court would be necessary.

3.1 For the ready reference, it would be beneficial to
quote the
Sections 6, 8 and 12 of the Hindu Minority and
Guardianship Act, 1956.

“6. Natural guardians of a Hindu minor.–The natural
guardian of a Hindu minor, in respect of the minor’s person as
well as in respect of the minor’s property (excluding his or her
undivided interest in joint family property), are–

(a) in the case of a boy or an unmarried girl–the father,
and after him, the mother: provided that the custody of a
minor who has not completed the age of five years shall
ordinarily be with the mother;

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(b) in case of an illegitimate boy or an illegitimate
unmarried girl –the mother, and after her, the father;

(c) in the case of a married girl–the husband: Provided
that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this section–

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally
renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).

Explanation.–In this section, the expression
“father” and “mother” do not include a stepfather
and a stepmother.

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 the minor or for the
realisation, 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 subsection (1) or subsection (2), is voidable at
the instance of the minor or by any person claiming under
him.

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

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply
to and in respect of an application for obtaining permission of
the court under subsection (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–

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(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
powers specified in subsections (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 subsection (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
Guardian and
Wards Act, 1890 (8 of 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.”

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.

4. Once undivided interest of the minor in the joint family property
is under the management of an adult member of the family no guardian
can be appointed except by the High Court and even the
natural guardian would not be a guardian in respect of undivided
interest of the minor in the joint family property and consequently
section 8(2) which speaks about requirement of permission by
natural guardian before selling the property of a minor would have no
application if the property is undivided interest of the minor in the joint
family property.
Section 8(2) appears to be contemplating the
permission by natural guardian in respect of the properties of the minor
which can be dealt with by natural guardian. This cannot however be
understood to say that welfare of the minor would be irrelevant in the
event of sale of his undivided interest in the joint family property.
His welfare will still be a predominant consideration and
annulment of sale can always be sought by minor in accordance with
law, if so advised.

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5. The logic behind the exclusion of natural guardian being such
guardian in respect of undivided interest of a minor in the joint family
property appears to be two fold (01) the manager is entitled to deal
with undivided shares in the interest of the family and; (02) the
undivided share is not fixed; but is variable with the change in the
constitution of the family and unless the share is divided or partitioned,
the interest would not be acquired by the minor so that the natural
guardian can deal with the same. It appears that with the said logic, no
permission interalia to convey the undivided interest of a minor in the
joint family property from the manager of such property has been
contemplated under subsection(2) of
Section 8.

6. Being oblivious to the abovereferred factual and legal position,
the trial Court landed itself in a serious error in rejecting the application
on the ground that the interest of the welfare of the minor was not
involved in the sale and the mother had alternative source to generate
income. Although the Court below could not have granted
the application for different reason i.e. no permission was required by
Karta of the joint family property instead of entertaining the application
and rejecting the case on merits.

7. In the opinion of this Court, for the aforesaid
reasons, the impugned order cannot be sustained. The same is
quashed and set aside and it is held that undivided interest of the
minor in the joint family property can be sold by the applicant
as Karta of HUF without permission from the Court.

Direct service is permitted”

5. Ranchhodbhai Chhaganbhai Patel, who is the brother-in-law of the
appellant has filed his affidavit in lieu of examination-in-chief at Exhibit-

10. He has stated therein that the entire parcel of joint family property i.e.
land is to be sold to tide over the financial difficulties.

6. It is thus eminently clear that no permission is required to sell the
undivided share of minor in joint family property. However, I am of the
considered opinion that while giving permission to the appellant to sell
the undivided share of her minor son in the joint family property, interest
of the minor needs to be taken care of.

7. In view of the above, the appeal is allowed and the impugned

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judgment and order is hereby quashed and set aside. The appellant is
permitted to sell the undivided share of her minor son in the joint family
property. However, the appellant shall intimate to the trial court, the total
sale consideration derived from the sale of the joint family property, and
the amount falling to the share of her minor son shall be deposited in the
trial court. The trial court, in turn, shall invest the same in FDR receipts
in a nationalised bank for a period of five years or till the minor attains
the age of majority, whichever is earlier, and the periodical interest
accruing on the FDR receipts shall be disbursed in favour of the minor
through his guardian i.e. the appellant.

8. In view of the above order, the civil application does not survive
and accordingly stands disposed of.

(A.G.URAIZEE, J)
Z.G. SHAIKH

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