Ambaben Wd/O Ratanji Veeraji ... vs Thakor Gitaben Viraji
2022 Latest Caselaw 9156 Guj

     C/FA/3638/2022                                        ORDER DATED: 17/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3638 of 2022

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                AMBABEN WD/O RATANJI VEERAJI THAKOR
                              Versus
                      THAKOR GITABEN VIRAJI
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Appearance:
MR KEVIN VIRVADIYA for MR. NISHIT P GANDHI(6946) for the Appellant(s)
No. 1,2
for the Defendant(s) No. 1,2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 17/10/2022

                                ORAL ORDER

1. Registry is directed to accept the vakalatnama of

learned advocate Mr.Denish Morakhia appearing for the

opponents.

2. At the outset, learned advocates appearing for the

respective parties have submitted that the issue raised in

the present First Appeal is squarely covered by the

decision of this Court in case of Sankhala (Mali)

Kantaben Wd/o Bharatbhai Laljibhai vs. Rabari

Panchalbhai Chelabhai reported in AIR 2020 Guj 205.

C/FA/3638/2022 ORDER DATED: 17/10/2022

3. In the present First Appeal, the appellants have

assailed the judgment and order dated 28.01.2022 passed

by the Principal District Judge, Patan in Civil Misc.

Application No.39 of 2021.

4. The First Appeal is preferred under the provisions

of Section 47 of the Guardians And Wards Act, 1890

read with Section 8(5)(c) of the Hindu Minority and

Guardianship Act, 1956 with Section 96 of the Civil

Procedure Code, 1908.

5. The Court below has rejected the application filed

by the present appellants seeking permission to sell her

share for education purpose of the minor.

6. The Trial Court has observed that in order to take

such permission and the order in this regard, the

applicant was required to provide sufficient details along

with the necessary documents and when she has failed

to do so, the Court below has rejected the application.

7. Learned advocates appearing for the respective

parties have submitted that the property in question is a

joint family property and other members of the family

C/FA/3638/2022 ORDER DATED: 17/10/2022

i.e. respondents herein have no objection with such

permission to sell the undivided share of minor is

granted.

8. This Court has perused the judgment rendered by

the Coordinate Bench of this Court in the case of

Sankhala (Mali) (supra) in an identical situation. This

Court, after examining the provisions of the Guardians

and Wards Act 1890 and the Hindu Minority and

Guardianship Act, 1956, has observed thus :

"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.

C/FA/3638/2022 ORDER DATED: 17/10/2022

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 sub-section(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 application and rejecting the case on merits.

7. In the opinion of this Court, for the aforesaid reasons, the impugned order cannot be sustained. The same is quashed and set aside and it is held that undivided interest of the minor in the joint family property can be sold by the applicant as Karta of HUF without permission from the Court."

9. The Co-ordinate Bench has specifically observed that

once undivided interest of the minor in the joint family

property is under the management of an adult member

of the family, the welfare of the minor would be

C/FA/3638/2022 ORDER DATED: 17/10/2022

irrelevant in the event of sell of the undivided interest

in the joint family property, however, looking to the

welfare of the minor, which can be a predominant factor,

a minor can always seek annulment of sale in

accordance with law.

10. Thus, the Court below has committed an error in

rejecting the application on the ground that the interest

of welfare of the minor was not involved in the sell.

11. In the present case, in fact, it is the case of the

mother of the minor that the sell proceeds is required

for the education purpose of her minor daughter.

12. Under the circumstances, the impugned judgment

dated 28.01.2022 is required to be set aside and it is

hereby set aside. The applicant - Ambaben Wd/o Ratanji

Veeraji Thakor being the natural guardian of the minor

- applicant No.2 - Priyankaben Ratanji Thakor is

permitted to sell the share of minor in the family

property.

C/FA/3638/2022 ORDER DATED: 17/10/2022

13. It is directed that the sale proceeds shall be

deposited in an account of a nationalized bank and she

may be permitted intermediately to withdraw the same

for the education purpose of her minor daughter only the

details of such sale proceeds and deposit in the

nationalized bank shall be intimated to the Trial Court

and the amount from such account shall not be

withdrawn without express permission of the Trial Court.

(A. S. SUPEHIA, J) KUMAR ALOK