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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
G.R. Udhwani, J.
Sankhala (Mali) Kantaben - Appellants
Vs.
Rabari Panchabhai Chelabhai - Respondent
First Appeal No. 5206 of 2019
Decided On : 28-02-2020
Guardians and Wards Act - Sale of Minor's Property - Hindu Minority and Guardianship Act, 1956, Sections 6, 8, 12
Fact of the Case:
The appellant, mother of the minor, sought permission to sell the minor's undivided interest in joint family property under Section 12 of the Guardians and Wards Act. The lower court declined permission, citing welfare of the minor and alternative income sources for the mother.
Finding of the Court:
The court held that permission under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 was not necessary for the sale of the minor's undivided interest in joint family property.
Issues: The main issue was whether permission was required for the sale of a minor's undivided interest in joint family property under the Hindu Minority and Guardianship Act, 1956.
Ratio Decidendi: The court found that the natural guardian could sell the minor's undivided interest in joint family property without permission under Section 8(2) of the Act, as the welfare of the minor would still be a predominant consideration and annulment of sale could be sought by the minor if advised.
Final Decision: The impugned order was quashed and set aside, holding that the undivided interest of the minor in the joint family property could be sold by the applicant as Karta of HUF without permission from the Court.
JUDGMENT :
G.R. Udhwani, J.
1. This appeal seeks to challenge the order dated 07.09.2019 rendered in Civil Misc. Application No. 32 of 2019 by the learned 2nd Additional District Judge at Deesa, District Banaskantha declining the permission to sale the property of minor under Section 12 of the Guardians and Wards Act.
2. On consideration of the submissions made by the learned Counsel for the appellant and on perusal of the impugned order, it would transpire that the appellant is the mother of the minor in absence of the father who expired on 10.01.2017. It appears that the properties sought to be sold comprises undivided interest of the minor in the joint family property. As the following discussion would show that for conveyance of such interest of minor, permission contemplated under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 would not be necessary. The Court below in this regard was not properly assisted.
3. Learned Counsel for the appellant has relied upon Sections 6, 8 and 12 of the Hindu Minority and Guardianship Act, 1956, to contend that in case of an undivided share of the minor in the joint family property, no permission of the Court would be necessary.
"6. Natural guardians of a Hindu minor.-The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl -the mother, and after her, the father;
(c) in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.-In this section, the expression "father" and "mother" do not include a stepfather and a step-mother.
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 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.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or by any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in the case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular-
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an
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