The main legal point established in the judgment is that the restriction in Section 8(2) of the Hindu Minority and Guardianship Act, 1956, does not apply to the undivided interest of a minor in joint family property, and therefore, no prior permission from the Court is required for alienating such undivided interest.

ORDER :

1. Heard learned advocate Mr. S.P. Majmudar for the appellant.

2. By way of this appeal, the appellant-original applicant has assailed the order dated 17.07.2023 passed by learned Additional District Judge, Jamnagar in Civil Miscellaneous Application No.4 of 2023. In the said order, permission which was sought for, by the appellant-original applicant to sell the undivided share of two minor children and to manage and to partition of the properties mentioned in the schedule-A annexed with the main application.

3. Brief facts of the case are as under :-

3.1 Anilbhai Abhubhai Odedra who is the husband of the appellant-original applicant died on 22.04.2021 leaving behind him, the present appellant and two minors children namely daughter Diptiben Anilbhai Odedra and son Harsh Anilbhai Odedra. The deceased was holding the said property situated at District Jamnagar City, Jamnagar, having revenue survey 562/paiki 1/paiki 1 being Khata No.790, which is more particularly mentioned in the schedule-A annexed with the Civil Miscellaneous Application No.4 of 2023 and deceased Anilbhai Abhubhai Odedra is co-owner of rest of the properties which are mentioned in the schedule-A of the application. Out of the said lands as mentioned in schedule-A, few lands were ordered to be non-agricultural land vide various orders passed by the Collector. The permission was sought for by the wife of the deceased-Anilbhai Abhubhai Odedra praying for an appointment of the guardian and also seeking permission to administer, develop, partition and to sell the properties mentioned in the schedule-A. The said application came to be dismissed by the learned Additional District Judge, Jamnagar vide order dated 17.07.2023.

3.2 Being aggrieved and dissatisfied with the said order, the present appellant is before this Court.

4. Learned advocate for the appellant has submitted that the properties, which are mentioned in schedule-A, more particularly at Serial No.A belong to the sole ownership of the deceased-Anilbhai Abhubhai Odedra who had expired on 22.04.2021 and rest of the properties stands in the name of co-owner Anilbhai Odedra and other persons. The details of such properties are mentioned in schedule-A. It is further submitted that an application was filed for an appointment of a guardian and seeking permission to partition, administer, develop and to sell those properties. Since the minors have interest in the properties, the permission was sought for. However, the said application came to be dismissed.

5. Learned advocate for the appellant has relied upon the provisions of Section 8(2) (a) and (b) of the Hindu Minority and Guardianship Act, 1956, which are reproduced as under;

“(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 terms extending more than one year beyond the date on which the minor will attain majority.”

6. Learned advocate for the appellant has submitted that since minors have an undivided share in the properties, no permission as such is required from the Court for an appointment of a Guardian and also for selling and/ or developing the properties in question. The documents were placed on record, which show that the some of the properties were converted into non- agricultural land by the orders of the Collector. The orders dated 12.12.2011 and 17.05.2022 are placed on record and for rest of the lands, revenue record was placed on record. However, the learned Trial Court has gravelly erred in not considering the records and the documents placed on record and rejected the application.

7. In support of his submission, the learned advocate for the appellant has placed reliance upon the law laid down by the Coordinate Bench of this Court in cases of Sankhala (Mali) Kantaben Wd/o Bharatbhai Laljibhai Vs. Rabari Panchabh