Madras High Court
V.Abirami vs Nil on 12 April, 2023
A.S.(MD).No.361 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD).No.361 of 2023
V.Abirami
... Appellant
Vs.
Nil ... Respondent
PRAYER: The Civil Miscellaneous Appeal is filed under Section 47 of the
Guardian and Wards Act, against the order of the Principal District Judge,
Tiruchirapalli in G.W.O.P.No.267 of 2019, dated 28.07.2021.
For Appellant : Mr.D.Ramesh Kumar
JUDGMENT
The challenge has been made for the order of the Principal District Judge,
Tiruchirapalli in G.W.O.P.No.267 of 2019, dated 28.07.2021, refusing to grant
permission to the petitioner to sell the minor share in the second item of the
petitioner's house property.
https://www.mhc.tn.gov.in/judis
A.S.(MD).No.361 of 2023
2. The case of the petitioner is that she is the mother of the minor boy and
his father Balaji died leaving behind the petitioner and the minor son as legal
heirs. The property originally belonged to one S.Somu, the grandfather of the
minor and the petitioner also has ½ share in the property and the minor has 1/4 th
share and the remaining ½ share will go to Muthaiyan, S/o. Somu. However,
the said Muthaiyan is mentally retorted person. In this regard, the petitioner
was appointed as guardian and permission also granted by this Court to sell ½
share in the property. Therefore, permission has been sought for to sell 1/4th
share of the minor in the house property, which is situated in a dilapidated
condition. However, the learned District Judge, after appointed the petitioner as
natural guardian of the minor, refused to grant permission to sell the property
on the ground that no details have been given by the petitioner.
3. The learned counsel appearing for the appellant/petitioner would
submit that the petitioner was already appointed as guardian for the mentally
retorted person in M.H.O.P.No.7 of 2018, to sell his ½ share in the same
property. However, the trial Court has refused to grant permission to the
petitioner to sell 1/4th share of the minor.
https://www.mhc.tn.gov.in/judis
A.S.(MD).No.361 of 2023
4. Now, the point arise for consideration in this appeal is whether the
petitioner is entitled to sell the minor share in the suit property?
5. Admittedly, it is not the property of the minor and the 1/4 th share of the
minor has been derived from the grandfather and remaining 3/4th share belong
to one Muthaiyan and the petitioner. That being the position, merely on
technicalities dismissing the application is not proper. The 1/4th share sought to
be sold is only an house property. When the Court itself has granted permission
to the petitioner to sell ½ share of the Muthaiyan in the building, refusing to
grant permission to the petitioner to sell the remaining 1/4th share is without any
logic and even the permission granted by the Court to sell ½ share of the other
co-owner viz., Muthaiyan itself will not be worked out. Admittedly, the
petitioner's second item is only a small house and it is also in a dilapidated
condition.
6. In such a view of the matter, this Court is of the view that interest of
the minor should be safeguarded, since he is having 1/4th share and permission
should be granted to the petitioner on condition that the entire sale
consideration shall be deposited in the minor's name till he attains majority or
https://www.mhc.tn.gov.in/judis
A.S.(MD).No.361 of 2023
the petitioner can purchase any other property in the name of the minor from
the sale consideration. Admittedly, this is only a minor share from the ancestral
property and the minor has only an undivided share. Such being the position, as
per Section 12 of the Hindu Minority and Guardianship Act, 1956, no guardian
is required to be appointed for the minor in respect of such undivided interest.
7. Such being the position, this Court is of the view that the interest of
the minor in the undivided share is permitted to be sold on condition that the
sale proceeds either be deposited in the National Bank till the minor attains
majority or any other property could be purchased in the name of the minor.
8. With the above observation, this Civil Miscellaneous Appeal is
allowed. No costs.
12.04.2023
akv
To
The Principal District Judge,
Tiruchirapalli.
https://www.mhc.tn.gov.in/judis
A.S.(MD).No.361 of 2023
N.SATHISH KUMAR,J.
akv
C.M.A.(MD).No.361 of 2023
12.04.2023
https://www.mhc.tn.gov.in/judis
