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.

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 7th 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, 5th 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 7th 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 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.

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