Jagrutiben Dharmeshbhai ... vs None
2023 Latest Caselaw 382 Guj

     C/FA/4894/2022                                 JUDGMENT DATED: 13/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 4894 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                        Sd/-

==========================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?                                               YES

2    To be referred to the Reporter or not ?
                                                                         YES
3    Whether their Lordships wish to see the fair copy
     of the judgment ?                                                    NO

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution                  NO
     of India or any order made thereunder ?

==========================================================
                      JAGRUTIBEN DHARMESHBHAI SUHAGIYA
                                    Versus
                                    NONE
==========================================================
Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR MD RAHEVAR, AGP
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 13/01/2023

                               ORAL JUDGMENT

1. Heard learned Advocate Mr.Bhaumik Dholariya for the appellant. At the request of this Court, learned AGP Mr.M. D. Rahevar had also assisted the Court.

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

2. By way of this appeal, the appellant - original applicant seeks direction of this Court to quash and set aside the impugned judgement and order dated 25.2.2022 passed by the learned 7 th Additional District Judge, Surat in CMA DC No.80 of 2020 so far as it pertains to declining the permission to sell the share of the minors in the property in question.

3. The facts leading to filing of the present First Appeal, in brief, are that the husband of the appellant, Dharmeshbhai Maganbhai Suhagiya, who had expired on 26.12.2018, had an undivided share in the property bearing Flat No.501 (as per Plan, Flat No.508) of Building No.B, 5 th Floor of Swapna Residency situated on non-agricultural land bearing Revenue Survey No.209, Block No.228, T.P. Scheme No.60 (Puna), Final Plot No.98 in the sim of Village Puna, Sub-district Surat City, District Surat. As the appellant was in dire need of funds for the well being and education of her minor children, daughter Paridhi and son Aryam, she had intended to sell minors' share in the above property. For such purpose, the appellant had filed an application being CMA DC No.80 of 2020 before the Court of 7 th Additional Sessions Judge, Surat, which application was partly allowed, granting the prayer for guardianship and rejecting the prayer for permission to sell the share of the minors in the property in question. Aggrieved by the said impugned judgement and order, the present First Appeal has been preferred.

4. Learned Advocate Mr.Bhaumik Dholariya for the appellant would principally argue that as such the application before the learned District Court itself had been misconceived, more particularly while there is no requirement of obtaining permission or there is no requirement of being appointed as guardian to sell the undivided share of a minor in a joint family property, yet on account of the fact that the purchasers of the property or the officers in the office of the Sub-Registrar insist for such

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

a permission, the application was filed. Learned Advocate would submit that while the application being misconceived, since an order has been passed by the learned District Court, now left without any remedy, the appellant is required to approach this Court by way of the present appeal. In support of his submissions, learned Advocate has relied upon various decisions and whereas the decisions, which are relevant for the fact situation are being referred to and discussed by this Court.

5. Learned Advocate Mr.Bhaumik Dholariya has relied upon the decision of the learned Coordinate Bench of this Court in case of Sankhala (Mali) Kantaben Wd/o Bharatbhai Laljibhai Versus Rabari Panchabhai Chelabhai decided on 28.2.2020 in First Appeal No.5206 of 2019. Learned Advocate has further relied upon the decision in case of Kailashben W/o Keshavbhai Chhaganbhai Patel Vs. N.A., in First Appeal No.1944 of 2021 decided on 27.7.2021. Learned Advocate has also relied upon the decision of the learned Coordinate Bench of this Court in case of Krishnakant Maganbhai Vs. State of Gujarat, reported in 1961 GLR 108. Learned Advocate has also referred to and relied upon the decision of the learned Coordinate Bench of this Court in case of Kantaben Jayendrabhai Savla Vs. NIL in First Appeal No.1977 of 2021 dated 17.8.2021. Learned Advocate Mr.Bhaumik Dholariya has further referred to the decision of the Hon'ble Apex Court in case of Narayan Lal Vs. Sridhar Sutar, reported in (1996) 8 SCC 54.

6. Having regard to the decisions relied upon by the learned Advocate for the appellant, before discussing and giving its decision on the facts of the case, this Court deems it appropriate to discuss the legal principle as propounded by the learned Coordinate Benches of this Court as well as the Hon'ble Apex Court.

 C/FA/4894/2022                                       JUDGMENT DATED: 13/01/2023




7. The very first decision on this aspect in case of                  Krishnakant

Maganbhai Vs. State of Gujarat (supra), the learned Coordinate Bench has observed at paragraphs 5, 6, 7, and 8 as under:-

"5. The argument of Mr. B. J. Shelat in the main has been that Section 8 deals with the powers of a natural guardian and along with the powers, the Parliament has also presented certain restrictions in the said section and every natural guardian who wants to deal with the property of a minor can do so only in accordance with and sub-feet to the restrictions contained in the said section. It has been urged by Mr. B. J. Shelat that the reference to the 'minor's estate' and the 'immovable property of the minor' in the said section is not limited to the separate property of the minor but also extends to the undivided share of the minor in joint family property. According to Mr. B. J. Shelat there is nothing in the said section which requires that the words 'the minor's estate' and 'the immovable property of the minor' should be read in any narrow sense as excluding the un-divided share of the minor in joint family property. The undivided share of the minor in joint family property is as much a part of his estate or immovable property as his separate property and there is no justification, argues Mr. B. J. Shelat, for excluding the undivided share of the minor In joint family property from the scope find meaning of the words 'the minor's estate' and 'the immovable property of the minor' occurring in the said section. It has been urged by Mr. B. J. Shelat that if these words are given their plain and natural meanings as they ought to be given, the restrictions contained in the said section would apply equally in respect of the undivided share of a minor in joint family property as they apply in respect of the separate property of the minor and the natural guardian, even though he be the manager and Karta, cannot sell or mortgage the undivided share of the minor in joint family property without the previous permission of the Court. This permission has to be obtained from the Court and the said section lays down the principles governing the exercise of the Court's discretion in granting or refusing such permission. According to Mr. B. J. Shelat, the learned District Judge had, therefore, jurisdiction to make the said order dated 30th April 1960 under Section 8 of the Act.

6. It is a well settled principle of construction that every statute must be construed ex visceribus actus i.e., within the four comers of the Act.

"The office of a good expositor of an Act of Parliament" said Coke in the Lincoln College Case "is to make construction on all parts together and not of one part only by itself". When construing the terms of any provision found in a statute, the Court is bound to consider other parts of the statute which throw light on the intention of the Legislature and serve to show that the particular provision ought not

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

to be construed as it would be alone and apart from the rest of the statute. Every clause of a statute should be construed with reference to the context and other clauses in the statute so, as far as possible, to make a consistent enactment of the whole statute. No part of a statute should be construed in isolation for the intention of the law-maker is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not detached from its context in the statute but in connection with its whole context. It is in the light of these prefatory observations that I will now proceed to examine the arguments advanced by Mr. B. J. Shelat.

7. As the preamble suggests, the Act is passed to amend and codify certain parts of the law relating to minority and guardianship among Hindus. The Act is thus a codifying enactment in respect of the subject- matter with which it deals. The question, however, is what is the extent and coverage of this subject-matter. The Act deals with three types of guardians viz., natural guardians, testamentary guardians and guardians appointed or declared by Court. The definition of "guardian" in Section 4(b)includes a natural guardian, a guardian appointed by the will of the minor's father or mother i.e., a testamentary guardian and a guardian, appointed or declared by Court. Sections 4(c), 6, 7 and 8 deal with natural guardians; Section 9 deals with testamentary guardians while Sections 12 and 13 deal with guardians appointed or declared by Court. One central idea which runs through all these sections is that under the Act there cannon be a natural guardian or a testamentary guardian or guardian appointed or declared by Court in respect of the undivided interest of a minor in joint family property. In respect of each of these three types of guardians, specific provision is made in language clear and explicit that the guardian in respect of a minor's property shall be only in respect of his property other than undivided interest in joint family property. Section 6 mentions the natural guardians of a Hindu minor, in respect of bis person as well as in respect of his property, but the undivided interest of the minor in joint family properly is specifically excluded from the scope and purview of the said section and the natural guardians in respect of the minor's property mentioned in the said section are only in respect of his property other than undivided interest in joint family property. Section 9 deals with the power of a Hindu father, mother and widow to appoint a testamentary guardian in respect of the minor's person or in respect of his property, but by the very language of the said section, that power is, in so far as it relates to the appointment of a testamentary guardian in respect of the minor's property, limited to property other than his undivided interest in joint family property. Section 12 which deals with guardians appointed or declared by Court specifically provides that no guardian shall be appointed for a minor in respect of his undivided interest in

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

joint family property. It will thus be seen that all the three types of guardians dealt with by the Act, viz., natural guardians, testamentary guardians and guardians appointed or declared by Court are either guardians in respect of the minor's person or guardians in respect of the minor's property other than his undivided interest in joint family property and that the Act does not contemplate and deal with any guardian in respect of the undivided interest of a minor in joint family property. The subject-matter with which the Act deals is limited to guardians in respect of the minor's person or in respect of the minor's property other than his undivided interest in joint family property, whether they be natural guardians Or testamentary guardians or guardians appointed or declared by Court, and the concept of a guardian in respect of the undivided interest of a minor in joint family property is not only foreign to the Act but is specifically excluded from the scope and purview of the Act by express enactment. It is against this background that I must now proceed to examine the language of Section 8 which is the section with which I am concerned in the present application.

8. Section 8 deals with the powers of a natural guardian in relation to the minor's estate. It empowers the natural guardian 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 lays down that the natural guardian cannot, in any case, bind the minor by a personal covenant. It also prescribes certain restrictions on the powers of the natural guardian and provides that the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or 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. Now the term 'natural guardian' has been defined in Section 4(c) to mean any of the guardians mentioned in Section 6. In order, therefore, to determine the scope and coverage of Section 8, one must turn to the previsions of Section 8 and see who are the natural guardians mentioned in that section, for the powers set out in Section 8 are those of the natural guardians mentioned in Section 6 and so also are the restrictions set out in that section. The term 'natural guardian' having been defined in Section 4(c) and the natural guardians contemplated and dealt with by the Act having been mentioned in Section 6, the ambit and operation of Section 8 must be limited to the natural guardians mentioned in Section 6 and Section 8 must not be construed so as to embrace within its scope the concept of a natural guardian in respect of the undivided interest of a minor in joint family property. The natural guardians whose powers are prescribed by Section 8 are thus natural guardians in respect of the minor's property other than his undivided interest in joint family

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

property and the restrictions laid down in that section also relate to the same natural guardians. The entire scheme of the Act which I have analysed in the preceding paragraph shows that the concept of a guardian in respect of the undivided interest of a minor in joint family property is excluded from the scope and purview of the Act and the Act does n t contemplate and deal with any guardian in respect of the undivided interest of a minor in joint family property. Since Section 8 deals only with the powers and restrictions on powers of natural guardians in respect of the minor's property other than undivided interest in joint family property, the words 'the minor's estate' and 'the immovable property of the minor' must be construed so as to mean minor's estate or immovable property other than his undivided interest in joint family property. It is a general rule of construction that the Court must not only look at the words but must also look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of words under the circumstances. The words 'the minor's estate' and 'the immovable property of the minor' having been used in Section 8 in relation to natural guardians in respect of the minor's property other than his undivided interest in joint family property, they must be limited to mean minor's estate or immovable property other than his undivided interest in joint family property and cannot be construed so as to include the undivided interest of the minor in joint family properly. The restrictions contained in Section 8 do not, therefore, apply in respect of the undivided interest of a minor in joint family property and a father who is the Manager and Karta of the joint and undivided Hindu family consisting of himself and his sons can alienate joint family property in its entirety including the undivided share of his minor sons in such property without obtaining the previous permission of the Court provided the alienation is one otherwise justified under Hindu Law. Merely because he as the father happens to be the natural guardian in respect of the person and separate property of his minor sons within the meaning of Section 6, it does not mean that he cannot in his capacity as the Manager and Karta of his joint family alienate the entire joint family properly, including the undivided share of his minor sons in such property, without the previous permission of the Court even in cases where such alienation, is permitted under Hindu Law. It is a well settled proposition of Hindu Law that a Manager and Karta of a joint family can alienate joint family property so as to bind the interest of minor coparceners in such property provided that the alienation is either for legal necessity or for the benefit of the estate. If the Manager and Karta is a father, he has certain additional powers of alienation under Hindu Law and in exercise of those powers, he can alienate joint family property so as to bind the interest of his minor sons in such property. These powers are not sought to be affected in any way by the Act. The consequence of accepting Mr. B. J. Shelat's

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

arguments would be that even in cases where a father who is the Manager and Karta of his joint family was entitled under Hindu Law to alienate joint family property so as to bind the interest of his minor sons in such property, he would not now be entitled to do so without obtaining the previous permission of the Court under Section 8 of the Act. Mr. B. J. Shelat's argument would come to this namely that after the coming into force of the Act, a father who is (he Manager and Karta of his joint family, cannot alienate joint family property so as to bind the interest of his minor sons in such property even in those cases where Hindu Law otherwise permits him to do so, and that he can effect such alienation only after obtaining the previous permission of the Court which permission can be granted by the Court only in case of necessity or for an evident advantage of the minor, The result would be that a father who is the Manager and Karta of his joint family would no longer have. the power to make a gift within reasonable limits of ancestral immovable property for pious purposes or to sell or mortgage ancestral immovable pro-perty for payment of his own debts provided the debts were antecedent debts and were not incurred for immoral or illegal purposes, and these powers which he enjoys under Hindu Law would be gone. I have no doubt that the Act was not intended to make such a serious inroad into Hindu Law. The language of the Act does not justify the construction contended for by Mr. B. J. Shelat and unless the language is clear and explicit, would not be inclined to put such construction which has the effect of seriously impairing the powers of alienation enjoyed by a father who is the Manager and Karta of his joint family under Hindu law. Such a construction would have the effect of placing greater restrictions on a father who is the Manager and Karta of his joint family in the matter of alienation of joint family property than on a Manager and Karta who is not the father but a brother or an uncle or a cousin. A Manager and Karta who is a brother or an uncle or a cousin would be entitled to alienate joint family property so as to bind the interest of minor coparceners without obtaining the previous permission of the Court whereas a Manager and Karta who is a father and who would therefore be expected to be more particular about the welfare of his minor coparceners who are his sons would not be entitled to alienate joint family property so as to bind the interest of his minor sons without obtaining the previous permission of the Court. This would indeed be an anomalous result. I am, therefore, of the Opinion that the restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and that Section 8 does not debar a Manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the Manager and Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law, but Section 8 does not require that any

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

previous permission of the Court should be obtained before effecting such alienation. No application can, therefore, be maintained under Section 8 of the Act by a Manager and Karta of a joint family for permission to mortgage or charge, or transfer by sale, gift, exchange or otherwise or lease the undivided interest of a minor coparcener in joint family property even if the Manager and Karta happens to be the natural guardian in respect of the person and separate property of such minor coparcener under Section 6 of the Act. The application made by the petitioner before the District Court was, therefore, misconceived and the learned District Judge had no jurisdiction to make the said order dated 30th April 1960 under Section 8 of the Act."

8. It appears from the law laid down by this Court that as far as Section 8 of the Hindu Minority and Guardianship Act, 1956 is concerned, while the same provides that the natural guardian shall not, without previous permission of the Court, alienate any immovable property of a minor, the learned Coordinate Bench has differentiated between the property of a minor and the undivided interest of a minor in the joint family property. It clearly appears that the learned Coordinate Bench has laid down the law, which is still in force, as much as it was on the date of the judgement that 'the restrictions' contained in Section 8 i.e. the requirement of obtaining previous permission of the Court before alienating immovable property of a minor would not apply in respect of an undivided interest of a minor in joint family property and whereas the Manager or Karta of the joint property could alienate the property without obtaining prior permission of the Court. It is also clarified that the concept of a guardian in respect of an undivided interest of a minor in joint family property is excluded from the scope and purview of the Act and whereas the Act does not contemplate and deal with any guardians in respect of an undivided interest of a minor in a joint family property. According to the learned Coordinate Bench, Section 8 only deals with the powers and restrictions on powers of the natural guardians in respect of a minor's property, other than undivided interest

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

in joint family property and whereas the words 'minors estate' and 'immovable property' of the minor must be construed, so as to mean, other than undivided interest of a minor in joint family property. It also appears that having held as above, the learned Coordinate Bench had come to the conclusion that since the way the law does not require any permission for alienating undivided interest of a minor in joint family property, therefore, an application for such permission was misconceived.

9. It also appears that the Hon'ble Apex Court in case of Narayan Lal (supra) had, though not referred to the decision of this Court referred to herein above, yet the very view had been reiterated by the Hon'ble Court at paragraph 5 of the said decision and whereas the said paragraph is reproduced herein below for benefit:-

"5. With regard o the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provisions, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislative in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed;

but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 to 12 of the Act, the previous permission of the Court under Section 8 of disposing of the undivided interest of the minor

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered."

10. It also appears that later decisions of learned Coordinate Benches of this Court, more particularly in case of Sankhala (Mali) Kantaben Wd/o Bharatbhai Laljibhai (supra), Kailashben W/o Keshavbhai Chhaganbhai Patel (supra), Krishnakant Maganbhai (supra) and Kantaben Jayendrabhai Savla (supra), have reiterated the very same view that there is no requirement for obtaining permission of the Court under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 for alienating undivided interest of minor in joint family property. Having regard to the law laid down by this Court and further considering that the said law has been reiterated by the Hon'ble Apex Court, in the considered opinion of this Court, no further discussion on this aspect is required, except for reiterating the obvious, that is to reiterate that Section 8(2) of the Act does not require or contemplate requirement of permission of a Court to be obtained in case of alienation of undivided interest of a minor in joint family property.

10.1. It is clarified that the applicant was not required to file any application for permission under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 and whereas it is also clarified that since Section 8(5) of the said Act contemplates that the provisions of the Guardians and Wards Act, 1890 shall apply to and in respect of an application for obtaining permission of a Court under Sub-section (2) as referred to herein above, as if it were an application for obtaining the permission of a Court under Section 29 of the Guardians and

C/FA/4894/2022 JUDGMENT DATED: 13/01/2023

Wards Act, 1890 and whereas since the judgement and order, which is impugned in this appeal arises from application under Section 8 of Guardians and Wards Act, 1890, the observations of the learned Coordinate Benches of this Court as well as of the Hon'ble Apex Court would be squarely applicable mutatis mutandis to the facts of the present case.

11. Having regard to the discussion as herein above, the impugned judgement and order dated 25.2.2022 passed by the learned 7 th Additional District Judge, Surat in CMA DC No.80 of 2020 is quashed and set aside. It is clarified that the undivided interest of the minors in the joint family property can be sold by the appellant as Karta of HUF without permission from the Court.

12. With these observations and directions the present First Appeal stands disposed of as allowed. Direct service is permitted.

Sd/-

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL