Gujarat High Court
Ashwiniben Jaysinhbhai Shinde vs Not Applicable on 30 November, 2023
NEUTRAL CITATION
C/FA/4593/2023 ORDER DATED: 30/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4593 of 2023
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ASHWINIBEN JAYSINHBHAI SHINDE
Versus
NOT APPLICABLE
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Appearance:
JAIVIK UDAY BHATT(7319) for the Appellant(s) No. 1
MR UDAY H BHATT(6457) for the Appellant(s) No. 1
for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 30/11/2023
ORAL ORDER
1. Heard learned advocate Mr.Jaivik Bhatt for the appellant.
2. During the course of argument, learned advocate for the appellant has placed certified copy of the Civil Miscellaneous Application No.238 of 2021 filed under Section 8 of the Hindu Minority and Guardianship Act. The same is taken on record.
3. By way of the present First Appeal, the appellant has challenged the judgment and order dated 01.04.2023 passed by the learned 5th Additional District Judge, Surat in Page 1 of 7 Downloaded on : Sat Dec 02 20:38:59 IST 2023 NEUTRAL CITATION C/FA/4593/2023 ORDER DATED: 30/11/2023 undefined CMA DC No.238 of 2021, whereby the permission for selling the property situated at Revenue Block No.214, Pakki No.315 to 30 Draft T.P. Scheme No.41, final plot No.04, Non- Agricultural Land having residential scheme in the name of 'Nandan Township' in the revised plan, sub-plot No.03, Type 'B' Plots, bearing Plot No.B-52, was rejected.
4. Learned advocate for the appellant has submitted that the property in question was purchased by the husband of the present appellant by the registered sale deed dated 05.11.2009, and by virtue of the sale deed, Mr. Jaysingbhai Shinde, became the owner of the property in question. Thereafter, on 18.04.2020, the husband of the present appellant passed away and before that the property which was mortgaged by the husband with the Bank of Baroda by depositing title deeds in the said Bank. The petitioner cleared the dues of the Bank and resultantly, the Bank released the property in favour of the appellant by executing a registered deed of re-conveyance of the instrument relating to deposit of Page 2 of 7 Downloaded on : Sat Dec 02 20:38:59 IST 2023 NEUTRAL CITATION C/FA/4593/2023 ORDER DATED: 30/11/2023 undefined title deeds on 05.08.2020.
4.1 It is further submitted that since the property in question was the self acquired property of the deceased- husband, no permission was required for selling or alienating the property in question. However, the present appellant had preferred an application under the provisions of Hindu Minority and Guardianship Act before the 5 th Additional District Judge, Surat for an appointing of guardian of minors "Harshali and Rushikesh", who were aged about 16 years and 13 years respectively and also sought permission for selling the property. The said application came to be rejected on the ground that no document was produced to show that the property has been transferred in the name of the deceased in pursuance to the sale deed which was executed in favour of the deceased - husband. It was further observed that, after the death of the deceased Jaysinhbhai, the mutation of entry was done. As per the mutation entry, the names of minor children were shown in the record. It was also observed that, in absence of any material, the property in question stands in the Page 3 of 7 Downloaded on : Sat Dec 02 20:38:59 IST 2023 NEUTRAL CITATION C/FA/4593/2023 ORDER DATED: 30/11/2023 undefined name of minor children, no permission could be granted. Resultantly, the application came to be rejected. 4.2 Learned advocate for the appellant has submitted that since the property was a self acquired property of deceased-husband, no permission was required for selling and transferring the property in question. In support of his submissions, he has placed on record the decision passed by the Co-ordinate Bench on 29.11.2022 in First Appeal No.3694 of 2021 and allied matters, wherein the similar issue was considered. In para-11, the Co-ordinate Bench has observed as under:-
"11. It appears from the law laid down by this Court that as far as Section 8 of the Hindu Minority and Guardianship Act, 1956 is concerned, while the same provides that the natural guardian shall not, without previous permission of the Court, alienate any immovable property of a minor, the learned Coordinate Bench has differentiated between the property of a minor and the undivided interest of a minor in the joint family property. It clearly appears that the learned Coordinate Bench has laid down the law, which is still in force, as much as it was on the date of the judgement that 'the restrictions' contained in Section 8 i.e. the requirement of obtaining previous permission of the Court before alienating immovable property of a minor would not apply in respect of an undivided interest of a minor in joint family property and whereas the Manager or Karta of the joint property could alienate the property without obtaining Page 4 of 7 Downloaded on : Sat Dec 02 20:38:59 IST 2023 NEUTRAL CITATION C/FA/4593/2023 ORDER DATED: 30/11/2023 undefined prior permission of the Court. It is also clarified that the concept of a guardian in respect of an undivided interest of a minor in joint family property is excluded from the scope and purview of the Act and whereas the Act does not contemplate and deal with any guardians in respect of an undivided interest of a minor in a joint family property. According to the learned Coordinate Bench, Section 8 only deals with the powers and restrictions on powers of the natural guardians in respect of a minor's property, other than undivided interest in joint family property and whereas the words 'minors estate' and 'immovable property' of the minor must be construed, so as to mean, other than undivided interest of a minor in joint family property. It also appears that having held as above, the learned Coordinate Bench had come to the conclusion that since the way the law does not require any permission for alienating undivided interest of a minor in joint family property, therefore, an application for such permission was misconceived.
5. It is an undisputed fact that the property is not ancestral property. The deceased - husband has not received it by way of inheritance. The property in question is a self acquired property of Jaysinhbhai Shinde, who has purchased the property by virtue of a registered sale deed.
6. Section 8 of the Hindu Minority and Guardianship Act, 1956 is reproduced hereinunder:-
Section 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 Page 5 of 7 Downloaded on : Sat Dec 02 20:38:59 IST 2023 NEUTRAL CITATION C/FA/4593/2023 ORDER DATED: 30/11/2023 undefined 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.
7. The provisions contained in Section 8 of the Act clearly envisages that the previous permission is mandatory before transferring or alienating the property of the minor. When the property belongs to the minor, without permission of the minor, the property can not be sold or alienated. So far the property in question is concerned it is not the property of minor but minor has inheritance on the death of their father.
8. It is well settled principle of law that the mutation of entries does not confer title and the same is only for fiscal purposes. Merely because name of Jaysinhbhai Shinde is not mutated by virtue of sale deed does not lead to the conclusion Page 6 of 7 Downloaded on : Sat Dec 02 20:38:59 IST 2023 NEUTRAL CITATION C/FA/4593/2023 ORDER DATED: 30/11/2023 undefined that the property does not belong to deceased Jaysinhbhai Shinde. Thus, by no stretch of imagination, it can be construed that the property is the exclusive property of the minor. The Co-ordinate Bench has also relied upon the decision in the case of Krishnakant Maganbhai Vs. State of Gujarat, reported in 1961 GLR 108. Considering the case of Krishnakant (supra), this Court is of the view that, no permission before selling or alienating the property in question was required.
9. In view of the totality of the facts and the provisions of law, the order dated 01.04.2023 passed by the 5 th Additional District Judge, Surat is not as per the settled principles of law and requires to be quashed and set aside.
10. With these observations, First Appeal is allowed. Accordingly, the order dated 01.04.2023 passed by the 5 th Additional District Judge, Surat in CMA DC No.238 of 2021, is hereby quashed and set aside. No order as to costs.
(D. M. DESAI,J) MANOJ Page 7 of 7 Downloaded on : Sat Dec 02 20:38:59 IST 2023