Gujarat High Court

Ashwiniben Jaysinhbhai Shinde vs Not Applicable on 30 November, 2023

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      C/FA/4593/2023                                ORDER DATED: 30/11/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4593 of 2023
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                       ASHWINIBEN JAYSINHBHAI SHINDE
                                   Versus
                              NOT APPLICABLE
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Appearance:
JAIVIK UDAY BHATT(7319) for the Appellant(s) No. 1
MR UDAY H BHATT(6457) for the Appellant(s) No. 1
 for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                               Date : 30/11/2023
                                ORAL ORDER

1. Heard learned advocate Mr.Jaivik Bhatt for the

appellant.

2. During the course of argument, learned advocate for

the appellant has placed certified copy of the Civil

Miscellaneous Application No.238 of 2021 filed under Section 8

of the Hindu Minority and Guardianship Act. The same is

taken on record.

3. By way of the present First Appeal, the appellant

has challenged the judgment and order dated 01.04.2023

passed by the learned 5th Additional District Judge, Surat in

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CMA DC No.238 of 2021, whereby the permission for selling

the property situated at Revenue Block No.214, Pakki No.315

to 30 Draft T.P. Scheme No.41, final plot No.04, Non-

Agricultural Land having residential scheme in the name of

'Nandan Township' in the revised plan, sub-plot No.03, Type

'B' Plots, bearing Plot No.B-52, was rejected.

4. Learned advocate for the appellant has submitted

that the property in question was purchased by the husband of

the present appellant by the registered sale deed dated

05.11.2009, and by virtue of the sale deed, Mr. Jaysingbhai

Shinde, became the owner of the property in question.

Thereafter, on 18.04.2020, the husband of the present

appellant passed away and before that the property which was

mortgaged by the husband with the Bank of Baroda by

depositing title deeds in the said Bank. The petitioner cleared

the dues of the Bank and resultantly, the Bank released the

property in favour of the appellant by executing a registered

deed of re-conveyance of the instrument relating to deposit of

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title deeds on 05.08.2020.

4.1 It is further submitted that since the property in

question was the self acquired property of the deceased-

husband, no permission was required for selling or alienating

the property in question. However, the present appellant had

preferred an application under the provisions of Hindu

Minority and Guardianship Act before the 5 th Additional

District Judge, Surat for an appointing of guardian of minors

"Harshali and Rushikesh", who were aged about 16 years and

13 years respectively and also sought permission for selling the

property. The said application came to be rejected on the

ground that no document was produced to show that the

property has been transferred in the name of the deceased in

pursuance to the sale deed which was executed in favour of

the deceased - husband. It was further observed that, after the

death of the deceased Jaysinhbhai, the mutation of entry was

done. As per the mutation entry, the names of minor children

were shown in the record. It was also observed that, in

absence of any material, the property in question stands in the

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name of minor children, no permission could be granted.

Resultantly, the application came to be rejected.

4.2 Learned advocate for the appellant has submitted

that since the property was a self acquired property of

deceased-husband, no permission was required for selling and

transferring the property in question. In support of his

submissions, he has placed on record the decision passed by

the Co-ordinate Bench on 29.11.2022 in First Appeal No.3694

of 2021 and allied matters, wherein the similar issue was

considered. In para-11, the Co-ordinate Bench has observed as

under:-

"11. 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

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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 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.

5. It is an undisputed fact that the property is not

ancestral property. The deceased - husband has not received it

by way of inheritance. The property in question is a self

acquired property of Jaysinhbhai Shinde, who has purchased

the property by virtue of a registered sale deed.

6. Section 8 of the Hindu Minority and Guardianship

Act, 1956 is reproduced hereinunder:-

Section 8 Powers of natural guardian.--

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts

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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 the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court,--

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or

(b) 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.

7. The provisions contained in Section 8 of the Act

clearly envisages that the previous permission is mandatory

before transferring or alienating the property of the minor.

When the property belongs to the minor, without permission of

the minor, the property can not be sold or alienated. So far

the property in question is concerned it is not the property of

minor but minor has inheritance on the death of their father.

8. It is well settled principle of law that the mutation

of entries does not confer title and the same is only for fiscal

purposes. Merely because name of Jaysinhbhai Shinde is not

mutated by virtue of sale deed does not lead to the conclusion

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