Gujarat High Court
Harijan (Parmar) Mulabhai Alias ... vs Harijan (Parmar) Khodabhai Madhabhai on 12 September, 2025
NEUTRAL CITATION
C/FA/3683/2024 ORDER DATED: 12/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3683 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 3683 of 2024
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HARIJAN (PARMAR) MULABHAI ALIAS MULJIBHAI GANESHBHAI & ORS.
Versus
HARIJAN (PARMAR) KHODABHAI MADHABHAI
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Appearance:
MR.D K.PUJ(3836) for the Appellant(s) No. 1,2,3
MR KAIRAV R TAILOR(13925) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 12/09/2025
ORAL ORDER
1. The present appeal is filed under Section 96 of the Code of Civil Procedure, 1908 by original applicants challenging the judgment and order passed by learned 4 th Additional Sessions Judge, Banaskantha at Tharad dated 26/07/2024 in Civil Misc. Application No.21 of 2024 filed by the appellants under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 read with Section 29 of Guardians and Wards Act, 1890 seeking permission to sale the property belonging to minors.
2. Heard learned advocate Mr. D. K. Puj for the appellants and learned advocate Mr. Kairav R. Tailor for the respondent/s. Page 1 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025
NEUTRAL CITATION C/FA/3683/2024 ORDER DATED: 12/09/2025 undefined Perused the record.
3. With consent of learned advocates for the respective parties, the appeal is taken up for final hearing today.
4. The facts of the case are as under:
5. The applicants filed an application seeking permission to sale the share of minors namely original applicant Nos.2 and 3 in the land bearing survey No.808 (Old Survey No.453) admeasuring Hector-Are-Square Meter : 1-53-10 situated in Moje Village - Tadav, Taluka Vav, District Banaskantha. Issues were framed by learned Court below and after considering the evidence on record, the application came to be rejected by learned trial Court with a liberty to file an application in future in case financial necessity arise for minors. Being aggrieved and dissatisfied with the impugned judgment and order, the appellant has preferred the present appeal.
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6. At the outset, learned advocate for the appellant submitted that the land bearing survey No.808 is an ancestral property. The appellant No.1 is guardian of appellant Nos.2 and 3. Father of appellant Nos.2 and 3 has expired on 25.1.2012 and mother has expired on 19.9.2011. The land question is in the joint names of appellants and respondent herein. The land was originally stood in the name of Harijan (Parmar) Mulabhai Ganeshbhai and after his death his class
- I legal heir - Harijan Ganesh Meha was mutated in the revenue record. The land was inherited by Class - I legal heirs including Dhira Ganesh, Shri Chaman Ganesh, Shri Muda Ganesh, GomtiBen Ganesh, Kuvariben Ganesh, Ravta Meha, Shri Khoda Madha, Shri Viha Madha, Shri Ravji Madha and Rupaben. The heirs of Ravta Meha and Kuvariben expired. Their legal heirs Okhabhai Ravtabhai and Meeraben Ravtabhai were mutated. A settlement was arrived at in Regular Civil Suit No.145 of 2008 which was filed before the learned Principal Senior Civil Judge, Vav and pursuant to the settlement, the present appellants, respondent and Kuvariben Ganeshbhai, Gomtiben Page 3 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025 NEUTRAL CITATION C/FA/3683/2024 ORDER DATED: 12/09/2025 undefined Ganeshbhai became owners of the land. After death of Kuvariben, her name was deleted from the revenue record whereas Gomtiben got her name deleted from the revenue record. As the land in question stood in the name of appellants and respondent herein, revenue entries were mutated accordingly. The appellants have produced revenue entries proving the aforesaid fact. The appellant No.1 is intending to sale the aforesaid revenue survey number for the benefit of minors as appellant No.1 is facing financial crisis to maintain the studies and other expenses of minors. Resultantly, present application came to be filed seeking permission to sale the share of minor. However, the learned trial Court rejected the application on the ground that no details with regard to expenses of school fees, maintenance etc. are produced. It is also submitted that as a matter of fact and as per the provisions of the law, no permission is required to sale the share of minors as the land in question is an ancestral land and the minors have their undivided share in Survey No.808. Reliance is placed upon the decision of Hon'ble Apex Court in the case Page 4 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025 NEUTRAL CITATION C/FA/3683/2024 ORDER DATED: 12/09/2025 undefined of Sri Naryan Bal and others v. Sridhar Sutar and others reported in 1996(8) SCC 54. Paragraph Nos.5 and 6 of the decision were pressed into service of the said decision. No other submissions are canvassed except the above.
7. I have considered the submissions canvassed by learned advocate for the appellant and also perused Record & Proceedings.
8. The record, more particularly, the revenue entries produced on record by the appellants before the Court below indicates that the appellant Nos.2 and 3 being minors have an undivided share in an agricultural land bearing Revenue Survey No.808. The evidence on record satisfactorily establishes fact that the land is an ancestral land and alongwith appellant Nos.2 and 3, appellant No.1 and respondent have their undivided share in survey No.808. Section 8 of the Hindu Minority and Guardianship Act, 1956 authorizes powers of natural guardian to do all Page 5 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025 NEUTRAL CITATION C/FA/3683/2024 ORDER DATED: 12/09/2025 undefined acts which are necessary and reasonable and proper for the benefits of the minor or for realization and protection or benefit of minor's estate. However, sub-section (2) of Section 8 of the Act imposes a rider on the rights of natural guardian.
"8. Powers of natural guardian.--
(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."
9. The said provision mandates that natural guardian shall not, without previous permission of the Court, mortgage or charge or transfer by sale, gift, exchange or otherwise any part of immovable property of the minor. For seeking such permission of the Court, it has to be established that the immovable property is of a minor. The said provision does not restrict power of natural guardian to mortgage or charge, transfer by sale, gift, exchange or otherwise any part of an immovable property where minors have an Page 6 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025 NEUTRAL CITATION C/FA/3683/2024 ORDER DATED: 12/09/2025 undefined undivided share. In the present case, the evidence is sufficient to establish that the property in question is an ancestral property and minors have undivided share in the property and, therefore, no such previous permission is required by the guardian.
10. Section 29 of Guardians and Wards Act, 1890 is pari materia with Section 8 of Hindu Minority and Guardianship Act, 1956. Section 29 of Guardians and Wards Act, 1890 is reproduced hereunder for the sake of convenience.
"29. Limitation of powers of guardian of property appointed or declared by the Court.--
Where a person other than a Collector, or than a guardian appointed by will or other
1. For notifications appointing authorities to whose control Collectors appointed under the Act shall be subject, see different local R. & O.
2. See now the Code of Criminal Procedure, 1898 (Act 5 of 1898). 11 instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he 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 his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor."
11. On perusal of the said provision, a restriction has been put Page 7 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025 NEUTRAL CITATION C/FA/3683/2024 ORDER DATED: 12/09/2025 undefined upon the guardian before mortgage or charge or transfer by sale, gift, exchange or otherwise any part of an immovable property of the ward shall not be permissible without previous permission of the court.
12. On scrutinizing the aforesaid provisions, the intention of the legislature is clear. Where the question arises with regard to selling etc. of any immovable property or part thereof which belongs to the ownership of minor, a prior permission is mandatory but when the minors have an undivided share in an ancestral property in an immovable property, no such prior permission is needed. The evidence on record indicates that the land in question is joint property, where minors have their undivided share. For an undivided share in a joint property, no prior permission of Court is necessary.
13. In view of the above discussion, this appeal is allowed.
Impugned judgment and decree passed by learned 4 th Additional Sessions Judge, Banaskantha at Tharad dated Page 8 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025 NEUTRAL CITATION C/FA/3683/2024 ORDER DATED: 12/09/2025 undefined 26/07/2024 in Civil Misc. Application No.21 of 2024 filed by the appellants under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 read with Section 29 of Guardians and Wards Act, 1890 is hereby quashed and set aside. The application is allowed accordignly. However, the appellant No.1 and respondents are hereby directed to furnish details on affidavit of sale consideration which they will be receiving by selling survey No.808 before the learned Additional Sessions Judge, Banaskantha at Tharad. The share of consideration of the minors which they will be receiving from selling survey No.808 shall be invested by appellant No.1 and respondent in a fixed deposit in a Nationalized Bank in cumulative scheme until minors attain majority. However, the appellant and respondent shall be entitled to withdraw the interest accrued thereon for the education and betterment of minors and shall keep a regular account of the income of interest and expenditure made out of it. Such account shall be submitted every year before the learned Additional Sessions Judge, Banaskantha at Tharad till the minors attain majority. Page 9 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025
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14. Record and Proceedings, if any, be sent back to the concerned Court, forthwith. Interim Relief, if any, stands vacated forthwith. No order as to costs.
15. In view of allowing of the main matter, connected Civil Application will no longer survive and the same stands disposed of accordingly.
(D. M. DESAI,J) vk Page 10 of 10 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 03:14:25 IST 2025