Minor Drashti Arvind Lapasiya ... vs None
2021 Latest Caselaw 17091 Guj

      C/FA/1751/2021                                   CAV ORDER DATED: 29/10/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1751 of 2021

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MINOR DRASHTI ARVIND LAPASIYA SINCE MINOR THROUGH HER MOTHER MANJULA ARVIND LAPASIYA Versus NONE ========================================================== Appearance:

MR ANVESH V VYAS(5654) for the Appellant(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 29 /10/2021

CAV ORDER

Heard learned advocate Mr. Anvesh Vyas for the appellant.

2. Present First Appeal under the provisions of the Hindu Minority and Guardianship Act, 1956, is directed against order dated 4.3.2021 passed by learned Additional District Judge, Jamnagar in Civil Misc. Application No. 81 of 2020. The prayer is to appoint the appellant as guardian of property of minor's undivided interest in joint Hindu Family Property. It is further prayed to permit to sell the property being Survey No. 232 (old Survey No. 175/3) admeasuring 1 Hec. 45 Are and 73 Sq.Mtrs. situated in village Rangpar, Lalpur, Jamnagar. This prayer was refused and the Misc. Civil Application was dismissed.

3. The applicant appellant is Minor Drashti Arvind Lapasiya through mother and legal guardian Manjula Arvind Lapasiya.

3.1 It is the case of the appellant that father of the minor appellant - husband of the appellant died on 8.2.2015. The above described property

C/FA/1751/2021 CAV ORDER DATED: 29/10/2021

is Hindu Joint Family property and is in the custody of coparceners named Manjula Arvind Lapasiya-the appellant and Dhrashti Arvind Lapasiya-the minor-the appellant, Hansa Himmatlal Lapasiya, Hiloni Himmatlal Lapasiya and Disha Hkmmatlal Lapasiya. It is stated that as per amendment in the year 2005 in the Hindu Succession Law, the ward Drashti-the appellant gets her undivided interest in the said Hindu joint family property. It was submitted that upon death of the father, mother in capacity of Guardian of Minor's undivided interest initiated the proceedings.

3.2 The appellant accordingly seeks to be appointed as guardian of her minor daughter's undivided interest in the Hindu Joint Family property.

3.3 It is also stated that family members of the appellant have decided to sell the property. Since the appellant being minor, permission of the competent court is required. Therefore, the Civil Misc. Application came to be preferred under the provisions of the Hindu Minority and Guardianship Act, 1956, before the competent court.

4. When the impugned judgment and order of the court below is considered, learned judge relied on section 12 of the Hindu Minority and Guardianship Act, 1956 to conclude that the said provision absolutely prohibits and puts embargo for appointment as guardian in respect of undivided interest of minor in Hindu joint family property. In para-8 of the order, the following is reasoned,

"To sum-up the entire conclusion, herein in this application, the applicant seeks her appointment as guardian of (minor's property) minor's undivided interest in Hindu joint family property and permission to sake sale thereof. The prayer of appointment as guardian qua the undivided interest of minor in Hindu join family property is absolutely prohibited, prelcuded and put

C/FA/1751/2021 CAV ORDER DATED: 29/10/2021

embargo thereon by the clear cut mandate of section 12 of the Hindu Minority and Guardianship Act, 1956 .

The second limb of prayer in respect of permission to sell minors' undivided interest in Hindu joint family property does not operate within the ambit of sub-section 2 of the Section of the Hindu and Minority and Guardianship Act, 1956 which left this court without any sort of power to issue the permission to sale such undivided interest in Hindu joint family property. The Court cannot do anything without specific power assigned to the Court and in the face of specific embargo in respect of non-appointment of guardian for such purpose. The negative mandate in this regard does not allow the court of equity to operate by way of interpretative manner by searching for the power where it does not have."

4.1 Learned advocate for the appellant submitted that the entire reasonings of the court below is misconcieved under section 12 of the Hindu Minority and Guardianship Act, 1956. The Act does not create any bar. He further highlighted that before filling the Civil Misc. Application, public notice was given in the daily vernacular newspaper Divya Bhaskar inviting objections. However, no contest was received. Thereafter, the appellant also led her evidence in form of examination-in- chief. It was submitted that all requirements of law has been complied with.

5. It appears from the facts on record that the coparceners are minor Drashti, Hiloni and Deesha who are adult sisters, mother stands as guardian after death of husband on 8.2.2015. The basic plea to seek permission to sell the property is that the appellants are in very poor condition and virtually hand to mouth and therefore for maintenance and for higher education, selling of undivided interest of minor's in the Hindu Joint Family is required.

5.1 Learned advocate for the appellant could successfully rely on order of this court dated 28.2.2020 in Sankhala (Mali) Kantaben wd/o

C/FA/1751/2021 CAV ORDER DATED: 29/10/2021

Bharatbhai Laljibhai vs. Rabari Panchabhai Chelabhai being First Appeal No. 5206 of 2019.

5.2 Section 6 of the Hindu Minority and Guardianship Act, 1956 speaks about the natural guardian of Hindu minor which reads as under. Section provides for power of natural guardian.

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

5.3 Under section 12, it is provided that the Guardian not be appointed of minor's undivided interest in join family property, which reads as under,

"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."

5.4      In Sankhala (Mali) Kantaben (supra), the following was






       C/FA/1751/2021                                        CAV ORDER DATED: 29/10/2021



observed and held.

"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 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.

6. Being oblivious to the abovereferred factual and legal position, the trial Court landed itself in a serious error in rejecting the application on the ground that the interest of the welfare of the minor was not involved in the sale and the mother had alternative source to generate income. Although the Court below could not have granted the application for different reason i.e. no permission was required by Karta of the joint family property instead of entertaining the applicati0n and rejecting the case on merits."

5.5 This court set aside the order impugned therein and held that undivided interest of the minor in the joint family property can be sold by the applicant - the karta of Hindu Undivided Family without permission of the court.

6. In view of above decision in Sankhala (Mali) Kantaben (supra)

C/FA/1751/2021 CAV ORDER DATED: 29/10/2021

and as per the law laid down therein, the present appeal deserves to be allowed.

6.1 As a result, order dated 4.3.2021 passed by learned Additional District Judge, Jamnagar dismissing Civil Misc. Application No. 81 of 2020 of the appellant is hereby set aside. It is held that undivided interest of the minor in the joint family property can be sold by the applicant in capacity of karta of the Hindu Undivided Family for valid reasons without permission of the court. The appellant is accordingly at liberty to sell the property in question by acting in accordance with law.

7. The appeal stands allowed and disposed of accordingly.

(N.V.ANJARIA, J) C.M. JOSHI