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NEUTRAL CITATION
C/FA/4113/2023 ORDER DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4113 of 2023
MARIYAMBEN HUSSAINBHAI BANDA
Versus
NA
Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
for the Defendant(s) No. 1
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/09/2023
ORAL ORDER
1. This first appeal is filed under Section 47 of
the Guardians and Wards Act, 1890 (‘the Act’, in
brief), read with Section 96 of the Code of Civil
Procedure, challenging the judgment and order dated
18.07.2023, passed by the learned Additional District
Judge, Keshod (‘Court Below’, herein after), in Civil
Misc. Application No. 16 of 2022 by which the said
application filed under Section 25 of the Act,
seeking permission to sell undivided share of the
minor, namely Sahil Hussainbhai Banda, in immovable
property was rejected.
2. Heard learned Advocate Mr. Soni appearing for
the appellant.
3. On perusal of the impugned order dated
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18.07.2023, it appears that reasons to reject the
petition weighed with the Court below is that the
agreement to sale was executed on 16.03.2021 and the
registered sale deed was to be executed on 16.05.2021
but the said application was filed on 17.05.2022 and
therefore, there is unexplained gap of one year in
filing the said application. Another aspect taken
into consideration by the Court below is that the
appellant did not mention as to how much share of
minor Sahil in the undivided immovable property in
the said application. It is further observed by the
Court below that it is the responsibility of the
Court concerned to protect the share or interest of
the minor in the undivided immovable property and
that is how the Court below rejected the application
of the appellant.
3.1 Learned Advocate Mr. Soni canvassed the
submission that the findings recorded by the Court
below are perverse and contrary to the settled
position of law. It was submitted that the Court
below was required to take the liberal approach,
instead of sticking with the technicalities when the
relief to sell the share of a minor in undivided
immovable property is sought. He referred to the
provisions of Section 12 of the Act and submitted
that in fact the permission of the Court is not
required to sell the undivided share of a minor in an
immovable property. In support of his submissions,
learned Advocate Mr. Soni placed reliance on the
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decision of the Apex Court in the case of ‘SANKHLA
(MALI) KANTABEN BHARATBHAI VS. RABARI PANCHALBHAI’,
AIR 2020 SC 205.
4. Having heard the learned Advocate Mr. Soni
appearing for the appellant and having perused the
impugned judgment, this Court is of the view that the
Court below has fallen into an error in rejecting the
application of the appellant. A perusal of the
impugned judgment reveals that the Court below has
taken very hyper technical approach and has assigned
the reasons, which are extraneous to legal
consideration.
4.1 In the matter of ‘SANKHLA (MALI) KANTABEN
BHARATBHAI’ (Supra), the Apex Court categorically
observed that in the case of sale of undivided share
of a minor in the joint family property, the
permission of the Court is not necessary.
4.2 The facts of this case indicate that the
appellant, Mariyamben, married to Hussainbhai
Momadbhai Banda and out of the said wedlock, they
have four children, namely Ruksana, Aasif, Sufiyan
and Sahil. Except Sahil, all other have become major.
Hussainbhai died on 28.11.2017, leaving behind the
property stated in the application, which is joint
family property. On the death of Hussainbhai, the
names of his children have been entered into the
record qua the subject land. In order to protect the
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interest of the minor Sahil, the appellant decided to
sell the property. However, as Sahil was minor, the
concerned Sub-Registrar refused to register the sale
deed without the permission of the competent Court
and therefore, the appellant approached the Court
below, seeking permission to sale. The share of minor
continued in joint but undivided property but failed
to get relief as Additional District Judge has
rejected application. Hence, the appellant is before
this Court.
4.3 As laid down by the Apex Court in the case of
‘SANKHLA (MALI) KANTABEN BHARATBHAI’ (Supra), the
permission of the Court is not necessary for selling
the share of the minor in the undivided immovable
property. However, as stated above, since Sub-
Registrar insisted for the Court’s permission, the
appellant approached the Court below. Unfortunately,
the Court below took the complete hyper technical
view, diverse from the legal provisions. The reason
recorded by learned Additional District Judge are
foreign to legal conception and as such are unfounded
Thus, the impugned order does not sustain and
requires to be set aside.
5. Consequently, the impugned order passed by the
Court below dated 18.07.2023 is set aside. The
reliefs prayed for in Civil Misc. Application No. 16
of 2022 are hereby granted and the appellant is
permitted to sale the undivided share of her minor
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son, namely Sahil, in the joint family property being
agricultural land. Further, the appellant is directed
to deposit the amount, equivalent to the share of
minor Sahil in the undivided immovable property,
before the Nazir of the Court below, which shall be
invested in FDRs in the name of minor Sahil, till he
attains majority. The Court concerned is directed not
to grant any advance or loan on the said FDRs.
However, the appellant shall be entitled to get the
interest accruing, thereon. The amount invested in
FDRs shall be released a soon as minor Sahil become
major without order of this Court. DISPOSED OF,
accordingly.
(J. C. DOSHI,J)
UMESH/-
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