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2019 Supreme(Raj) 2879
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mohammad Rafiq and Narendra Singh Dhaddha, JJ.
Pawan Sharma - Appellant
Versus
Rina Sharma - Respondent
Civil Miscellaneous Appeal No. 3937 of 2019
Decided On : 22-08-2019
Madhusudan Singh Rajpurohit, Adv.
The court must consider the necessity or evident advantage of the ward before granting permission to sell a minor's property.
Headnote:
GUARDIAN AND WARDS ACT - APPOINTMENT OF GUARDIAN - SECTION 27 - SALE OF MINOR'S PROPERTY - PERMISSION OF COURT - NECESSITY OR EVIDENT ADVANTAGE OF THE WARD - INTERPRETATION AND APPLICATION
Fact of the Case:
Appellant, the father of a minor, sought appointment as guardian of his minor son's half share of property and permission to sell the same for the minor's benefit. The Family Court rejected the application, finding that the appellant's salary was sufficient to cover the minor's education expenses and that there was no necessity or evident advantage to the minor in selling the property.
Finding of the Court:
The court held that the Family Court did not err in rejecting the appellant's application. The court found that the appellant had not demonstrated a necessity or evident advantage to the minor in selling the property, and that the appellant's salary was sufficient to cover the minor's education expenses.
Issues: 1. Whether the appellant had demonstrated a necessity or evident advantage to the minor in selling the property. 2. Whether the appellant's salary was sufficient to cover the minor's education expenses.
Ratio Decidendi: The court interpreted Section 27 of the Guardians and Wards Act, 1890, which provides that the court shall not grant permission to sell a minor's property except in case of 'necessity' or 'evident advantage of the ward'. The court held that the appellant had not demonstrated a necessity or evident advantage to the minor in selling the property, and that the appellant's salary was sufficient to cover the minor's education expenses.
Final Decision: The appeal was dismissed.
JUDGMENT
Narendra Singh Dhaddha, J. -D.B. Civil Misc. Application 1507/2019:-
For the reasons mentioned in the application, delay of 56 days in filing the appeal is condoned. The application under Section 5 of the Limitation Act is allowed.
D.B. Civil Misc. Appeal 3937/2019:-
1. This appeal has been preferred by the appellant Pawan Sharma against the order of the learned Family Court No.3, Jaipur passed on 1.5.2019 whereby the learned Family Court rejected the civil Suit No.5/2018 (827/2018) filed u/s 27 of the Guardians and Wards Act, 1890 for appointment of appellant as guardian of half share of the property of his minor son and seeking permission for sale of half share of minor in the said property for the benefit and advantage of his minor child.
2. Brief facts giving rise to this appeal are that father of the appellant i.e. late Shri Rajendra Pakash Sharma was the owner of the property situated at Plot No.A-43, Govindpuri, Baees Godam, Jaipur measuring 196.44 sq. yd. which is the current resident of the appellant. Late Shri Rajendra Prasad Sharma expired on 3.9.2016, who, before his death, executed a registered Will on 3.9.2013 whereby the said property was bequeathed equally in favour of the appellant and his minor grand-son namely Parth Upadhaya borne on 7.1.2010. As per Will, the appellant had been granted right to sell the share of his minor son even before he would attain the age of majority for the purposes of education and upbringing of minor child on condition that the sale deed for transfer of such property must contain the signatures of his wife as a witness. So, the wife Smt. Rina Sharma was impleaded as the proforma respondent. The appellant and his wife are living together in the same house along with their minor son. The Patta of the said property was issued by the Jaipur Development Authority on 6.4.2018. The appellant being the natural guardian of the child be declared as guardian of half share of the minor in the property and further prayed for permission of the court to sell the half share of the minor of the said property. The learned Family Court after hearing both the parties, dismissed the application filed by the appellant on 1.5.209.
3. The respondent in her reply accepted the facts mentioned in the application stating that she had no objection if the half share of the property was being sold in the interest of her minor son for the purpose of his education.
4. From the pleadings, the learned Family Court framed the following Issues :
5. Appellant was examined himself as AW-1 and respondent herself as NAW-1. After hearing the learned counsel for the parties, the learned Family Court decided all the Issues against the appellant.
6. Learned counsel for the appellant submitted that the impugned order dated 1.5.2019 is erroneous and contrary to law. Learned counsel for the appellant submitted that father of the appellant executed a registered Will on 03.09.2013 whereby the said property was bequeathed equally in favour of the appellant and his minor grand-son Parth Upadhaya. As per Will, the appellant was granted right to sell the share of his minor son even before he would attain the age of majority for the purposes of education and upbringing of minor child subject to the condition that the sale deed must bear signatures of wife of the appellant as a witness.
7. Learned counsel for the appellant submitted that the appellant is working as a private interior design consultant. The appellant is physically handicapped, so he wants to sell the said property for the education of his minor son. Learned counsel for the appellant submitted that the learned Family Court has wrongly come to the conclusion that salary of the appellant as sufficient to bear the expenses of education. The payment of school fees cannot be said to be the only expenses towards the child. The learned Family Court has wrongly confined the entire case to the payment of school fees without considering the overall practical situation. The appellant
