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Judgments of Supreme Court of India and High Courts

Smt. Khelan Rani Shil Deb vs (3) Smt. Manidipa Deb on 13 February, 2020

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HIGH COURT OF TRIPURA
AGARTALA

FAO No.3/2019
Smt. Khelan Rani Shil Deb.
………….. Appellant(s).
Vs.

(1) Sri Siddhartha Deb,
(2) Sri Madan Mohan Deb,
Being minor represented by their mother-appellant.

(3) Smt. Manidipa Deb.
………….. Respondent(s).

For the Appellant(s) : Mr. H K Bhowmik, Advocate.
For the Respondent(s) : Mr. P Majumder, Advocate.

HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI

_O_R_D_E_R_
13.02.2020

Heard learned counsel for the parties for final disposal of

this appeal from order which arises out of an order dated 26 th

September, 2019 passed by the learned Additional District Judge,

West Tripura, Agartala, in Civil Misc.(G/C)25 of 2018.

[2] Brief facts are as under :

Appellant had filed above-mentioned application praying for

a declaration that the petitioner was the legal guardian of the

minors and further to grant necessary permission to transfer the

shares of the minors in the land specified in Schedule B which she

intended to sell. In such application, the case put forth by the

petitioner was that her husband expired on 1st May, 2012 leaving

behind the petitioner, two minor children and one adult married
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daughter. The deceased had left behind certain immovable

properties which were mentioned in Schedule A. Some of these

properties she wanted to sell to maintain the family which

properties were mentioned in Schedule B. She pointed out that she

was receiving a small amount of family pension of Rs.1,951/- per

month. She is sustaining the family through daily labour. There is

no other income. For the maintenance of the family as well as for

the education of the children, she needed to dispose of some of the

family properties. It was in this background, she sought permission

of the Civil Court to dispose of the shares of the minors in such

properties as a legal guardian of such minors.

[3] This application was rejected by the Court below by making

a reference to Section 12 of the Hindu Minority Guardianship Act,

1956 (‘the Act’ for short). Against such order, present appeal from

order has been filed.

[4] Having heard learned counsel for the parties, I find that in

terms of Section 6 of the Act, the petitioner mother of the minor

children is their natural guardian since their father has passed

away.

[5] Section 8 of the Act pertains to powers of natural guardian

and 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 the
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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 sub-section (1) or sub-
section (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 sub-section
(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 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 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.

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(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.”

[6] As per sub-section (1) of Section 8, 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

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. Under sub-section (2) of Section 8, a

natural guardian shall not, without the previous permission of the

Court, inter alia transfer by sale, gift, exchange or otherwise, any

part of the immovable property of the minor. As per sub-section (4)

of Section 8, no Court shall grant permission to the natural

guardian to any of the things mentioned in sub-section (2) except

in case of necessity or for an evident advantage to the minor.

Under sub-section (5) of Section 8, the procedure for granting such

permission as contained in the Guardian and Words Act, 1890 and

in particular, Section 29 thereof and the procedure laid down in

Section 31 of the said Act have been incorporated.

[7] Section 12 of the Act, on the other hand, provides that

where a minor has an undivided interest in joint family property
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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. As per the proviso to said Section,

however, the powers of the High Court to appoint a guardian in

respect of such interest will remain unaffected.

[8] Since the petitioner is a natural guardian of the minors, her

application was appropriately made for permission under sub-

section (2) of Section 8 of the Act and Section 12 had no

applicability. Her application, therefore, had to be decided in terms

of Section 8.

[9] The reasons cited by the petitioner for disposal of the said

immovable properties are genuine. She has no other source of

income as except for small family pension and her earnings from

daily labour work. For growing up two minor children and for their

better education, she would certainly require funds. However, any

such application has to be judged in terms of the provisions of

Sections 29 and 31 of the Guardians and Wards Act, 1890 as

provided in sub-section (5) of Section 8 of the Act.

[10] Section 29 of the Guardians and Wards Act pertains to

limitation of powers of guardian of property appointed or declared

by the Court. Section 31 lays down the practice with respect to

permitting transfers under Section 29. Under sub-section(1) of

Section 31, permission shall not be granted except in case of

necessity or for an evident advantage to the ward which in the
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present case, we have already ascertained. Under sub-sections (2)

and (3), the Court could impose certain conditions for sale of the

property. Clause (a) of sub-section (3) provides that such a sale

shall not be completed without the sanction of the Court.

[11] In the present case, the petitioner has not cited the

prospective buyer, the rate at which she proposes to dispose of the

property and the prevailing market rate thereof. Without

ascertaining these details it would not be possible to grant such

permission.

[12] Under the circumstances, while in principle accepting the

request of the petitioner for permission to divest the interest of the

minors in the properties mentioned in Schedule B to the

application, it is provided that no such sale shall be completed

without sanction of the concerned District Court. While granting

such sanction, the District Court shall verify the rate at which the

petitioner proposes to dispose of the said property and compare it

to the prevailing market rate.

With these observations and directions, appeal from order

is disposed of.

( AKIL KURESHI ), CJ

Sukhendu

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