Patel Kalpanaben W/O Bhavinbhai vs Patel Ravindrakumar Maganlal
2021 Latest Caselaw 15488 Guj

     C/FA/2931/2019                                   ORDER DATED: 04/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 2931 of 2019
==========================================================
                      PATEL KALPANABEN W/O BHAVINBHAI
                                   Versus
                       PATEL RAVINDRAKUMAR MAGANLAL
==========================================================
Appearance:
MR HIMANSU M PADHYA(1611) for the Appellant(s) No. 1,2
MR SHASHIKANT S GADE(1706) for the Defendant(s) No. 1,2,3,4,5,6
==========================================================
 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 04/10/2021
                   ORAL ORDER

1. Learned advocate for the respondents has no objection if

the draft amendment is allowed by this Court. Draft

Amendment is allowed. Necessary amendment to be carried

out forthwith.

2. The appellants have preferred this appeal with the

following relief(s):

"(A) This Hon'ble Court may be pleased to admit and allow this First Appeal.

(B) This Hon'ble Court may be pleased to pass appropriate order and direction quashing and setting aside the order dated 29.4.2019 passed by learned 2nd Additional District Judge, Deesa, Dist.: Banaskantha in Civil Misc. Application No.5 of 2019 with further direction to grant and allow the Civil Misc. Application No.5 of 2019 preferred by the appellants before learned 2nd Additional District Judge, Deesa, District Banaskantha.

C/FA/2931/2019 ORDER DATED: 04/10/2021

(C) This Hon'ble Court be pleased to pass such other and further order/s as deemed fit, just and proper by this Hon'ble Court."

3. The short facts leading to the filing of present appeal

may be summarized as under:

3.1 The appellants preferred Civil Misc. Application

No.5 of 2019 for seeking permission to sell the joint

property of the share of the appellant minor under

Section 8(2) of the Minor and Guardianship Act, 1890

(hereinafter referred to as "the said Act" for short) in

order to meet with expenses of education and other

requirements, etc. The Trial Court, vide order dated

29.04.2019, rejected Civil Misc. Application No.5 of 2019

preferred by the appellants.

4. Heard learned advocate for the appellants and

respondents.

5. It is submitted by learned advocate for the appellants

that refusing to grant permission as sought for under Section

8(2) of the said Act is illegal and contrary to law and the Trial

Court failed to examine the real spirit and substance behind

the provisions of Section 8(2) of the said Act. In support of his

C/FA/2931/2019 ORDER DATED: 04/10/2021

arguments, learned advocate for the appellants has relied

upon the judgments in the case of (I) Sankhala (Mali)

Kantaben Wd/o. Bharatbhai Laljibhai Vs. Rabari

Panchabhai Chelabhai reported in AIR 2020 Guj. 205 and

(II) Kantaben Jayendrabhai Savla Vs. Nil in First Appeal

No.1977 of 2021, decided on 17.08.2021.

6. Learned advocate for the respondents has submitted that

appellant no.1 - Patel Kalpanaben w/o. Bhavinbhai may be

permitted to sell the immovable property of Survey No.160,

situated in Village: Ratanpura (Una), Taluka Kankarej as

shown at Sr.No.2 in the list of documents produced at Exh.3

before the Trial Court in Civil Misc. Application No.05 of 2019.

7. The appellants have amended the appeal and it is

requested to permit to sell the immovable property of Survey

No.160, situated in Village: Ratanpura (Una) Taluka Kankarej

as shown at Sr.No.2 in the list of documents produced at

Exh.3 before the Trial Court in Civil Misc. Application No.05 of

2019.

8. This Court, in the case of Sankhala (Mali) Kantaben

C/FA/2931/2019 ORDER DATED: 04/10/2021

Wd/o. Bharatbhai Laljibhai Vs. Rabari Panchabhai

Chelabhai (supra), has held in Paragraph No.3.1, 4, 5 and 6

as under:

"3.1 For the ready reference, it would be beneficial to quote the Sections 6, 8 and 12 of the Hindu Minority and Guardianship Act, 1956.

"6. Natural guardians of a Hindu minor.--The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-

(a) in the case of a boy or an unmarried girl the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;

(c) in the case of a married girl the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

C/FA/2931/2019 ORDER DATED: 04/10/2021

Explanation.--In this section, the expression "father" and "mother" do not include a stepfather and a stepmother.

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 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 subsection (1) or subsection (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 subsection (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 subsection (2) in all respects as

C/FA/2931/2019 ORDER DATED: 04/10/2021

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 subsections (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 subsection (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

(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."

12. Guardian not to be appointed for minor's undivided interest in joint family property.--Where a minor has an undivided interest in joint family property 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: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.

C/FA/2931/2019 ORDER DATED: 04/10/2021

4. Once undivided interest of the minor in the joint family property is under the management of an adult member of the family no guardian can be appointed except by the High Court and even the natural guardian would not be a guardian in respect of undivided interest of the minor in the joint family property and consequently section 8(2) which C/FA/5206/2019 ORDER speaks about requirement of permission by natural guardian before selling the property of a minor would have no application if the property is undivided interest of the minor in the joint family property. Section 8(2) appears to be contemplating the permission by natural guardian in respect of the properties of the minor which can be dealt with by natural guardian. This cannot however be understood to say that welfare of the minor would be irrelevant in the event of sale of his undivided interest in the joint family property. His welfare will still be a predominant consideration and annulment of sale can always be sought by minor in accordance with law, if so advised.

5. The logic behind the exclusion of natural guardian being such guardian in respect of undivided interest of a minor in the joint family property appears to be two fold (01) the manager is entitled to deal with undivided shares in the interest of the family and; (02) the undivided share is not fixed; but is variable with the change in the constitution of the family and unless the share is divided or partitioned, the interest would not be acquired by the minor so that the natural guardian can deal with the same. It appears that with the said logic, no permission inter- alia to convey the undivided interest of a minor in the joint family property from the manager of such property has been contemplated under subsection(2) of Section 8."

C/FA/2931/2019 ORDER DATED: 04/10/2021

9. In First Appeal No.1977 of 2021, the same judgment is

referred by the Coordinate Bench of this Court and this Court,

in the case of Kantaben Jayendrabhai Savla (supra), has

held in Paragraph-7 as under:

"7. It is thus eminently clear that no permission is required to sell the undivided share of minor in joint family property. However, I am of the considered opinion that while giving permission to the appellant to sell the undivided share of her minor son in the joint family property, interest of the minor needs to be taken care of."

10. Considering the view taken by this Court in two different

matters, as no permission is required to sell the undivided

share of minor in joint family property, the appellant no.1 may

act accordingly in connection with the request made in the

prayer No.6(B).

11. With the above observations, present appeal stands

disposed of.

(B.N. KARIA, J) rakesh/