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Pawan Sharma S/O Lt. Sh. Rajendra … vs Rina Sharma W/O Pawan Sharma on 22 August, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.3937/2019

Pawan Sharma S/o Lt. Sh. Rajendra Prasad Sharma, Aged About
49 Years, B/c Brahmin, R/o Plot No.A-43, Govindpuri, Bais
Godam, Jaipur
—-Appellant
Versus
Rina Sharma W/o Pawan Sharma, Aged About 33 Years, B/c
Brahmin, R/o Plot No.A-43, Govindpuri, Bais Godam, Jaipur
—-Respondent

For Appellant(s) : Shri Madhusudan Singh Rajpurohit

HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

22/08/2019
BY THE COURT : (PER HON’BLE DHADDHA, J.)

D.B. Civil Misc. Application 1507/2019:-

For the reasons mentioned in the application, delay of

56 days in filing the appeal is condoned. The application under

Section 5 of the Limitation Act is allowed.

D.B. Civil Misc. Appeal 3937/2019:-

1. This appeal has been preferred by the appellant Pawan

Sharma against the order of the learned Family Court No.3, Jaipur

passed on 1.5.2019 whereby the learned Family Court rejected

the civil Suit No.5/2018 (827/2018) filed u/s 27 of the Guardians

and SectionWards Act, 1890 for appointment of appellant as guardian of

half share of the property of his minor son and seeking

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permission for sale of half share of minor in the said property for

the benefit and advantage of his minor child.

2. Brief facts giving rise to this appeal are that father of

the appellant i.e. late Shri Rajendra Pakash Sharma was the

owner of the property situated at Plot No.A-43, Govindpuri, Baees

Godam, Jaipur measuring 196.44 sq. yd. which is the current

resident of the appellant. Late Shri Rajendra Prasad Sharma

expired on 3.9.2016, who, before his death, executed a registered

Will on 3.9.2013 whereby the said property was bequeathed

equally in favour of the appellant and his minor grand-son namely

Parth Upadhaya borne on 7.1.2010. As per Will, the appellant had

been granted right to sell the share of his minor son even before

he would attain the age of majority for the purposes of education

and upbringing of minor child on condition that the sale deed for

transfer of such property must contain the signatures of his wife

as a witness. So, the wife Smt. Rina Sharma was impleaded as the

proforma respondent. The appellant and his wife are living

together in the same house along with their minor son. The Patta

of the said property was issued by the Jaipur Development

Authority on 6.4.2018. The appellant being the natural guardian of

the child be declared as guardian of half share of the minor in

the property and further prayed for permission of the court to sell

the half share of the minor of the said property. The learned

Family Court after hearing both the parties, dismissed the

application filed by the appellant on 1.5.209.

3. The respondent in her reply accepted the facts

mentioned in the application stating that she had no objection if

the half share of the property was being sold in the interest of her

minor son for the purpose of his education.

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(3 of 5) [CMA-3937/2019]

4. From the pleadings, the learned Family Court framed

the following Issues :

“1- vk;k izkFkZuki dh en la[;k1 esa of.kZr lEifRr] ftlesa vo;Ld
ikFkZ mik/;k; dk [email protected] fgLlk fufgr gS] ds fy, izkFkhZ vo;Ld ikFkZ
mik/;k; dk laj{kd fu;qDr gksus dk vf/kdkjh gS?

izkFkhZ

2- vk;k mDr of.kZr lEifRr] ftlesa vo;Ld ikFkZ dk [email protected] fgLlk fufgr
gS] dks Ckspku djus dh vuqefr izkIr dk izkFkhZ vf/kdkjh gS?

3- vuqrks”k k”

5. Appellant was examined himself as AW-1 and

respondent herself as NAW-1. After hearing the learned counsel

for the parties, the learned Family Court decided all the Issues

against the appellant.

6. Learned counsel for the appellant submitted that the

impugned order dated 1.5.2019 is erroneous and contrary to law.

Learned counsel for the appellant submitted that father of the

appellant executed a registered Will on 03.09.2013 whereby the

said property was bequeathed equally in favour of the appellant

and his minor grand-son Parth Upadhaya. As per Will, the

appellant was granted right to sell the share of his minor son even

before he would attain the age of majority for the purposes of

education and upbringing of minor child subject to the condition

that the sale deed must bear signatures of wife of the appellant as

a witness.

7. Learned counsel for the appellant submitted that the

appellant is working as a private interior design consultant. The

appellant is physically handicapped, so he wants to sell the said

property for the education of his minor son. Learned counsel for

the appellant submitted that the learned Family Court has wrongly

come to the conclusion that salary of the appellant as sufficient to

bear the expenses of education. The payment of school fees

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cannot be said to be the only expenses towards the child. The

learned Family Court has wrongly confined the entire case to the

payment of school fees without considering the overall practical

situation. The appellant had no other property to transfer in order

to make the requirements.

8. The learned counsel for the appellant also submitted

that the learned Family Court had failed to consider that under

Section 8 (4) of the Hindu Minority and SectionGuardianship Act as well

as Section 29 of the Guardians and SectionWards Act, the permission

shall not be granted by the court except in case of ‘necessity’ or

‘evident advantage of the ward’. Learned counsel for the appellant

also submitted that there was no finding of the court that the

appellant was seeking permission to dispose of the property for

any illegal or malafide reason. Learned counsel for the appellant

also submitted that the appellant being “Karta” of the family was

within its right to dispose of the property for the benefit of the

family. So, the court ought to have considered this aspect.

9. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the appellant,

perused the impugned order and the material available on record.

10. Father of the appellant executed a registered Will on

03.09.2013, whereby the said property was bequeathed equally in

favour of the appellant and his minor grand-son Parth. Appellant’s

father imposed a condition in the Will that appellant was granted

the right to sell the share of his minor son even before he would

attain the age of majority for the purposes of education and

upbringing of the minor child subject to condition that the sale

deed must bear the signatures of the respondent as witness.

Father of the appellant gave right to the appellant to sell the share

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of minor before he would attain the age of majority for the

purposes of education and upbringing. The appellant made a

statement before the learned Family Court as AW-1. He stated in

his statement that he wanted to send minor Parth to Australia for

studies. On a query made by the court, he stated that he had not

got the passport prepared for Parth and had not taken Viza. He

also admitted that higher education starts after 12 th standard. At

present, the minor Parth was studying in Class-III. The

respondent in her statement before the learned Family Court

stated contrary to the statement of the appellant. She stated that

they wanted to mortgage the said property for loan to repair the

said property to let out on rent. So, the learned Family Court came

to the conclusion that there was no need to sell the said property

for the purpose of study. The learned Family Court in its order

clearly observed that presently the education fees of minor Parth

is Rs. 22,000/- per year and the appellant was earning

Rs.3,00,000/- per year. So, he could bear the expenses of

education of minor Parth.

11. We are of the considered opinion that the learned

Family Court had not committed any mistake or error to reject the

application of the appellant. The appeal being devoid of merit, is

liable to be dismissed and accordingly the same is dismissed.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J

RAJ KUMAR CHAUHAN /17/S53

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