Gujarat High Court
Harijan (Parmar) Mulabhai Alias ... vs Harijan (Parmar) Khodabhai Madhabhai on 12 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3683 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 3683 of 2024
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HARIJAN (PARMAR) MULABHAI ALIAS MULJIBHAI GANESHBHAI & ORS.
Versus
HARIJAN (PARMAR) KHODABHAI MADHABHAI
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Appearance:
MR.D K.PUJ(3836) for the Appellant(s) No. 1,2,3
MR KAIRAV R TAILOR(13925) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 12/09/2025
ORAL ORDER
1. The present appeal is filed under Section 96 of the Code of
Civil Procedure, 1908 by original applicants challenging the
judgment and order passed by learned 4 th Additional
Sessions Judge, Banaskantha at Tharad dated 26/07/2024
in Civil Misc. Application No.21 of 2024 filed by the
appellants under Section 8(2) of the Hindu Minority and
Guardianship Act, 1956 read with Section 29 of Guardians
and Wards Act, 1890 seeking permission to sale the
property belonging to minors.
2. Heard learned advocate Mr. D. K. Puj for the appellants and
learned advocate Mr. Kairav R. Tailor for the respondent/s.
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Perused the record.
3. With consent of learned advocates for the respective
parties, the appeal is taken up for final hearing today.
4. The facts of the case are as under:
5. The applicants filed an application seeking permission to
sale the share of minors namely original applicant Nos.2
and 3 in the land bearing survey No.808 (Old Survey
No.453) admeasuring Hector-Are-Square Meter : 1-53-10
situated in Moje Village - Tadav, Taluka Vav, District
Banaskantha. Issues were framed by learned Court below
and after considering the evidence on record, the
application came to be rejected by learned trial Court with
a liberty to file an application in future in case financial
necessity arise for minors. Being aggrieved and dissatisfied
with the impugned judgment and order, the appellant has
preferred the present appeal.
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6. At the outset, learned advocate for the appellant submitted
that the land bearing survey No.808 is an ancestral
property. The appellant No.1 is guardian of appellant Nos.2
and 3. Father of appellant Nos.2 and 3 has expired on
25.1.2012 and mother has expired on 19.9.2011. The land
question is in the joint names of appellants and respondent
herein. The land was originally stood in the name of Harijan
(Parmar) Mulabhai Ganeshbhai and after his death his class
- I legal heir - Harijan Ganesh Meha was mutated in the
revenue record. The land was inherited by Class - I legal
heirs including Dhira Ganesh, Shri Chaman Ganesh, Shri
Muda Ganesh, GomtiBen Ganesh, Kuvariben Ganesh, Ravta
Meha, Shri Khoda Madha, Shri Viha Madha, Shri Ravji
Madha and Rupaben. The heirs of Ravta Meha and
Kuvariben expired. Their legal heirs Okhabhai Ravtabhai
and Meeraben Ravtabhai were mutated. A settlement was
arrived at in Regular Civil Suit No.145 of 2008 which was
filed before the learned Principal Senior Civil Judge, Vav
and pursuant to the settlement, the present appellants,
respondent and Kuvariben Ganeshbhai, Gomtiben
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Ganeshbhai became owners of the land. After death of
Kuvariben, her name was deleted from the revenue record
whereas Gomtiben got her name deleted from the revenue
record. As the land in question stood in the name of
appellants and respondent herein, revenue entries were
mutated accordingly. The appellants have produced
revenue entries proving the aforesaid fact. The appellant
No.1 is intending to sale the aforesaid revenue survey
number for the benefit of minors as appellant No.1 is facing
financial crisis to maintain the studies and other expenses
of minors. Resultantly, present application came to be filed
seeking permission to sale the share of minor. However,
the learned trial Court rejected the application on the
ground that no details with regard to expenses of school
fees, maintenance etc. are produced. It is also submitted
that as a matter of fact and as per the provisions of the
law, no permission is required to sale the share of minors
as the land in question is an ancestral land and the minors
have their undivided share in Survey No.808. Reliance is
placed upon the decision of Hon'ble Apex Court in the case
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of Sri Naryan Bal and others v. Sridhar Sutar and
others reported in 1996(8) SCC 54. Paragraph Nos.5
and 6 of the decision were pressed into service of the said
decision. No other submissions are canvassed except the
above.
7. I have considered the submissions canvassed by learned
advocate for the appellant and also perused Record &
Proceedings.
8. The record, more particularly, the revenue entries
produced on record by the appellants before the Court
below indicates that the appellant Nos.2 and 3 being
minors have an undivided share in an agricultural land
bearing Revenue Survey No.808. The evidence on record
satisfactorily establishes fact that the land is an ancestral
land and alongwith appellant Nos.2 and 3, appellant No.1
and respondent have their undivided share in survey
No.808. Section 8 of the Hindu Minority and Guardianship
Act, 1956 authorizes powers of natural guardian to do all
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acts which are necessary and reasonable and proper for
the benefits of the minor or for realization and protection or
benefit of minor's estate. However, sub-section (2) of
Section 8 of the Act imposes a rider on the rights of natural
guardian.
"8. Powers of natural guardian.--
(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."
9. The said provision mandates that natural guardian shall
not, without previous permission of the Court, mortgage or
charge or transfer by sale, gift, exchange or otherwise any
part of immovable property of the minor. For seeking such
permission of the Court, it has to be established that the
immovable property is of a minor. The said provision does
not restrict power of natural guardian to mortgage or
charge, transfer by sale, gift, exchange or otherwise any
part of an immovable property where minors have an
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undivided share. In the present case, the evidence is
sufficient to establish that the property in question is an
ancestral property and minors have undivided share in the
property and, therefore, no such previous permission is
required by the guardian.
10. Section 29 of Guardians and Wards Act, 1890 is pari
materia with Section 8 of Hindu Minority and Guardianship
Act, 1956. Section 29 of Guardians and Wards Act, 1890 is
reproduced hereunder for the sake of convenience.
"29. Limitation of powers of guardian of property appointed
or declared by the Court.--
Where a person other than a Collector, or than a guardian appointed
by will or other
1. For notifications appointing authorities to whose control Collectors
appointed under the Act shall be subject, see different local R. & O.
2. See now the Code of Criminal Procedure, 1898 (Act 5 of 1898). 11
instrument, has been appointed or declared by the Court to be
guardian of the property of a ward, he 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 his ward,
or
(b) lease any part of that property for a term exceeding five years or
for any term extending more than one year beyond the date on
which the ward will cease to be a minor."
11. On perusal of the said provision, a restriction has been put
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upon the guardian before mortgage or charge or transfer
by sale, gift, exchange or otherwise any part of an
immovable property of the ward shall not be permissible
without previous permission of the court.
12. On scrutinizing the aforesaid provisions, the intention of
the legislature is clear. Where the question arises with
regard to selling etc. of any immovable property or part
thereof which belongs to the ownership of minor, a prior
permission is mandatory but when the minors have an
undivided share in an ancestral property in an immovable
property, no such prior permission is needed. The evidence
on record indicates that the land in question is joint
property, where minors have their undivided share. For an
undivided share in a joint property, no prior permission of
Court is necessary.
13. In view of the above discussion, this appeal is allowed.
Impugned judgment and decree passed by learned 4 th
Additional Sessions Judge, Banaskantha at Tharad dated
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26/07/2024 in Civil Misc. Application No.21 of 2024 filed by
the appellants under Section 8(2) of the Hindu Minority and
Guardianship Act, 1956 read with Section 29 of Guardians
and Wards Act, 1890 is hereby quashed and set aside. The
application is allowed accordignly. However, the appellant
No.1 and respondents are hereby directed to furnish details
on affidavit of sale consideration which they will be
receiving by selling survey No.808 before the learned
Additional Sessions Judge, Banaskantha at Tharad. The
share of consideration of the minors which they will be
receiving from selling survey No.808 shall be invested by
appellant No.1 and respondent in a fixed deposit in a
Nationalized Bank in cumulative scheme until minors attain
majority. However, the appellant and respondent shall be
entitled to withdraw the interest accrued thereon for the
education and betterment of minors and shall keep a
regular account of the income of interest and expenditure
made out of it. Such account shall be submitted every year
before the learned Additional Sessions Judge, Banaskantha
at Tharad till the minors attain majority.
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14. Record and Proceedings, if any, be sent back to the
concerned Court, forthwith. Interim Relief, if any, stands
vacated forthwith. No order as to costs.
15. In view of allowing of the main matter, connected Civil
Application will no longer survive and the same stands
disposed of accordingly.
(D. M. DESAI,J)
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