Gujarat High Court
Hemakshiben Wd/O Parimal ... vs None on 9 August, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/3301/2023 ORDER DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3301 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 3301 of 2023
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HEMAKSHIBEN WD/O PARIMAL DHIRAJBHAI BHAGAT
Versus
NONE
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Appearance:
MR AMIT THAKKAR with HIREN R PANDYA(8760) for the Appellant(s) No. 1
for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 09/08/2023
ORAL ORDER
1. In this appeal under section 47 of the Guardians and Wards Act
read with section 96 of the Code of Civil Procedure, 1908 (the
Code for short), the appellant has assailed the judgment and order
dated 07.04.2023 passed by the learned 12th Additional District
Judge, Surat in Civil Miscellaneous (Guardian) Application
No.452 of 2022 by which the application under sections 7 and 29
of the Guardians and Wards Act for permission to sell undivided
share of the minor Arushi was partly allowed to the extent of
appointing the appellant as guardian of Minor Arushi. However,
the Court below declined to sell the share of the minor in the
property.
2. Heard learned counsel Mr. Amit Thakkar appearing for and behalf
of the appellant.
NEUTRAL CITATION
C/FA/3301/2023 ORDER DATED: 09/08/2023
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3. Mr. Thakkar, learned counsel has submitted that the impugned
judgement is contrary to the settled position of law, facts and
evidence on record. He further submitted that the Court below
could have allowed the permission to sell subject to reasonable
conditions so as to protect the interest of the minor. Thus, in this
context, referring to section 12 of the Guardians and Wards Act
and ratio laid down in the case of Sankhala (Mali) Kantaben
Bharatbhai vs. Rabari Panchalbhai, AIR 2020 SC 205, it was
submitted by learned counsel Mr. Thakkar that no permission is
required to sell the undivided share of the minor in the family
property.
4. Having heard the learned counsel for the petitioner and on perusal
of the impugned judgement, this Court is of the considered view
that, the petitioner is mother and natural guardian of the minor
Arushi. The husband of the petitioner i.e. father of the minor has
expired on 31.10.2022. The minor is residing with the petitioner
and she is looking after each and every affairs of the minor and as
per the pleadings, the sale of the property including the share of
the minor is in the interest of the minor herself. The Court below
failed to appreciate this aspect and did not grant permission to sell
the share of the minor which is counter to the right of the minor.
Thus, considering the ratio laid down in the case of Sankhala
(Mali) Kantaben Bharatbhai (supra), has categorically observed
that in the case of an undivided share of a minor in family property,
no permission of Court would be necessary. Thus, therefore,
without much discussion, the impugned judgement 07.04.2023
NEUTRAL CITATION
C/FA/3301/2023 ORDER DATED: 09/08/2023
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passed by the learned 12th Additional District Judge, Surat in Civil
Miscellaneous (Guardian) Application No.452 of 2022 is quashed
and set aside. The appellant is permitted to sell the undivided share
of minor daughter in the property mentioned in the application .
5. With the aforesaid, the appeal is allowed.
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023 In R/FIRST
APPEAL NO. 3301 of 2023
In view of the order passed in the main matter, present Civil
Application stands disposed of accordingly.
(ILESH J. VORA,J)
SUDHIR
