Gujarat High Court
Mahendrakumar Haribhai Jadav vs None on 28 August, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
C/FA/3768/2023 ORDER DATED: 28/08/2023
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3768 of 2023
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MAHENDRAKUMAR HARIBHAI JADAV
Versus
NONE
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Appearance:
MANTHAN N PATEL(8227) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/08/2023
ORAL ORDER
1. Heard learned advocate Mr. Manthan Patel for the
unsuccessful appellants.
2. By way of this first appeal, the appellants challenge
judgment and order dated16.12.2021 passed by the learned
Additional District Judge, Dhrangadhra passed in CMA No.5 of
2021, whereunder, the application filed by the appellants has
been partly rejected.
3. Facts in nutshell are that applicant No.1 Mahendrakumar
Jadav and Zalak Mahendrakumar Jadav are the husband and
wife and they have given birth of son Prahar out of said wedlock.
The name of Prahar being minor was entered into the revenue
records of the land admeasuring 0-79-22 sq mtr of revenue
survey number 540 paiki situated at village Malanpur, Tal:
Dasada, Dist: Surendranagar. Since the requirement arose to
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C/FA/3768/2023 ORDER DATED: 28/08/2023
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sell the subject land and as the name of the minor is one of the
title holder reflecting in the revenue records, an application
under sections 8 and 12 of the Hindu Minor And Guardian Act
has been preferred by the appellants herein seeking permission
from the Court to sell the share of the minor from the subject
matter.
4. The learned Court below for the reasons recorded in the
impugned order denied to grant the permission, however,
appointed appellant Nos.1 and 2 as guardians for the property of
the minor.
5. Being aggrieved, this appeal.
6. With the request of learned advocate, Mr Manthan Patel
and as trivial issue is involved in the matter, it is taken up for
hearing at the admission stage.
7. On perusing the impugned order, it appears that the
petition is bereft of certain pleadings, which may constitute need
to sell the share of the minor, has prompted the Court below to
reject the application for granting permission for selling the
shares. The findings of the learned Court below in para 13 and
14 reads as under:-
"13. It must be borne in mind that the applicant no.1
is the natural guardian of minor who applied for
permission for selling the property. It should not be
forgotten that the custody of minor is also with the
applicant no.1 i.e., father. Till now applicant no.1 has
been managing the affairs of the minors. Father has
given education, food, clothing etc. But, looking to
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C/FA/3768/2023 ORDER DATED: 28/08/2023
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the Aadhar Card of the minor at Exh.16, the date of
birth of the minor is 27/04/2018, therefore, at
present the age of the minor is 3 years and 7 months.
The minor will be starting his education at present
and the primary education is for free in government
schools. Further, the applicant no.1 has sufficient
agricultural land, which he can cultivate or place it
on rent and earn through the same by using labour
services or appointing anyone to look after the
agricultural lands. Also, if at all the applicant no. 1
needs money for the welfare of the child, then he
would sell his property, but instead of doing so, the
applicant no. 1 implies for selling the minor's share
in the property. There is no actual reason given by
the applicant no.1 to sell the minor's property.
Therefore, it can be stated that, the applicant no.1
have filed the present application with a malafide
intention. Therefore, there is no ground stated by the
applicant no. 1 to grant the permission to sell the
minor's property. Therefore, this Court rejects the
application of the applicant no.1 to sell the property.
14. Looking to the age of the minor's-Prahar and
peculiar facts of this application, question of minor's
choice regarding guardian does not arise here
because applicant no.1 & 2 are his natural father and
mother."
8. The findings of the learned Court below if read in
background of the pleadings i.e. Exh.1, it appears that the
application was drafted poorly and without assigning proper
reason, which may convince the Court below to grant the
permission for selling the share of minor from the joint property.
Indeed, the welfare of a child is paramount consideration and to
consider and constitute the welfare of a child, necessary
averments are required to be made in the application . Section 8
of the Hindu Marriage And Guardian Act is also expecting the
same. Since in the present case, admittedly, necessary
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C/FA/3768/2023 ORDER DATED: 28/08/2023
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averments are missing, which is prompted the learned Court
below to reject the grant of permission, this Court is inclined to
remand the matter, accepting the submission of learned
advocate Mr Manthan Patel, to be decided afresh and also to
permit the appellants to amend the averments.
9. For the foregoing reasons, without entering into the merits
of the matter, this first appeal is allowed and the impugned
judgment and order is set aside as far as it denying the
permission to sell the share of the minor in immovable property,
being a subject matter. The matter is restored to the original
proceedings before the learned Court below. Liberty is given to
the appellants to amend the application so as to show their bona
fide and which can prima facie prove that selling of the share of
the minor in the subject matter is in welfare of the child
including to submit the unequivocal undertaking before the
Court below that the proceeds received from selling of the share
of the minor shall be kept in cumulative FDR till the minor
attends the age of majority. No loan or any other kind of advance
shall be obtained nor appellant Nos.1 and 2 shall take interest
accrued there from.
10. It is expected from the learned Court below to hear and
decide the application, preferably within the outer limit of three
months from the receipt of this order without being influenced
by disposal of the present petition.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
