Mariyamben Hussainbhai Banda vs Na

                                                                                          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

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                      MARIYAMBEN HUSSAINBHAI BANDA
                                 Versus
                                  NA
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Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
for the Defendant(s) No. 1
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 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 Page 1 of 5 Downloaded on : Fri Sep 29 20:37:53 IST 2023 NEUTRAL CITATION C/FA/4113/2023 ORDER DATED: 26/09/2023 undefined 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 Page 2 of 5 Downloaded on : Fri Sep 29 20:37:53 IST 2023 NEUTRAL CITATION C/FA/4113/2023 ORDER DATED: 26/09/2023 undefined 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 Page 3 of 5 Downloaded on : Fri Sep 29 20:37:53 IST 2023 NEUTRAL CITATION C/FA/4113/2023 ORDER DATED: 26/09/2023 undefined 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 Page 4 of 5 Downloaded on : Fri Sep 29 20:37:53 IST 2023 NEUTRAL CITATION C/FA/4113/2023 ORDER DATED: 26/09/2023 undefined 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/-