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2019 Supreme(MP) 753
High Court of Madhya Pradesh
Sanjay Yadav, Vivek Agarwal, JJ.
VARUN TALREJA - APPELLANT
Versus
MUSKAN TALREJA & ANR. - RESPONDENTS
Misc. Appeal No. 3488 of 2019
Decided On : 11-09-2019
For Appellant : Anmol Khedkar
For Respondent: R. S. Dhakar
A de facto guardian is not entitled to dispose of the property of a Hindu minor under section 11 of the Hindu Minority and Guardianship Act, 1956.
Headnote:
Guardians and Wards Act - Property Sale Permission - Court's Interpretation of Guardian's Authority
Fact of the Case:
The appellant sought permission to sell his share of property through his guardian under section 8 of the Guardians and Wards Act, 1890. The guardian was not court-appointed and the property was purchased during the minority of the appellant and respondent No. 1.
Finding of the Court:
The court found that the guardian, being a de facto guardian, was not entitled to dispose of the property of a Hindu minor under section 11 of the Hindu Minority and Guardianship Act, 1956. The court also noted the ages of the appellant and respondent No. 1, and the absence of an agreement for the purchase of new properties.
Issues: The issues revolved around the authority of the guardian to sell the property of the minor, the welfare of the minor, and the applicability of the Hindu Minority and Guardianship Act, 1956.
Ratio Decidendi: The court's decision was based on the interpretation of section 11 of the Hindu Minority and Guardianship Act, 1956, which prohibits a de facto guardian from dealing with the property of a Hindu minor. The absence of court appointment for the guardian also influenced the decision.
Final Decision: The Miscellaneous Appeal was dismissed, and the court found no infirmity in the impugned order denying the application to sell the property.
ORDER/JUDGMENT – Shri Anmol Khedkar, learned counsel for the appellant.
Shri R. S. Dhakar, learned counsel for the respondent No. 1.
This appeal has been filed under section 47 of the Guardians and Wards Act, 1890, being aggrieved by the impugned order dated 9-4-2019 passed by the Third Additional Sessions Judge, Gwalior in MJC No. 11/2018(G.W.) whereby an application moved by the appellant under section 8 of the Guardians and Wards Act seeking permission to sell his share of property through his guardian has been denied.
2. Brief facts leading to the present appeal are that appellant along with respondent No. 1 are owner and possessor of a building at village Harcotta, Lashkar, Gwalior, which was purchased vide registered sale deed dated 17-2-2006 from its earlier owner Shri Badriprasad Yogi.
3. Appellant and respondent No. 1 were deserted by their mother while they were still toddlers and their mother had taken one daughter namely Kajal with her and entered into a wedlock with some other person. Their father is no more. Said house was purchased by the guardian Parmanand Talreja during the minority of appellant Varun, respondent No. 1 Muskan and their sister Kajal. Guardian Parmanand is discharging his responsibility for the upbringing education etc. of minor children. Ku. Kajal on attaining majority relinquished her share in the said property in favour of the appellant and respondent No. 1 vide registered relinquishment dated 18-2-2018.
4. It is submitted that respondent No. 1 Muskan has attained majority and money is required for the purpose of her marriage but it is not possible to sell such property as there is no buyer is ready to purchase said property without the permission of Court.
5. Learned counsel for the appellant submits that guardian shall sell the old property and shall purchase two different properties in individual name of Varun and Muskan, a fact which is contrary to pleadings and documents on record.
6. When we specifically asked learned counsel for the appellant as to the existence of the agreement to purchase such properties in favour of the appellant who is still a minor, he has fairly submitted that no such agreement is available on record.
7. We are aware of the fact that Court can exercise its jurisdiction as “parens patriae” but it is also true that we have to take a comprehensive view as to the welfare of the minor. As per the cause title, age of respondent No. 1 has been shown as 19 years. Age of the appellant has been shown as 16 years. This MJC was filed before the Court of Additional District Judge on 29-9-2018. Therefore, approximate age of the appellant is about 17 years, whereas that respondent No. 1 is about 20 years.
8. It is also true that Mr. Parmanand is not a Court appointed guardian but is de facto guardian. Learned lower Court has rightly referred to provisions contained in section 11 of the Hindu Minority and Guardianship Act, 1956, which provides that de facto guardian not to deal with minor’s property. Section 11 of the Hindu Minority and Guardianship Act, 1956, provides that after the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being a de facto guardian of the minor.
9. There is nothing on record to show that Shri Paramanand through whom application has been filed was ever appointed a guardian by a competent Court authorized to make such order as to guardianship under the provisions of section 7 under Chapter II of Guardians and Wards Act, 1890, after coming into force of Hindu Minority and Guardianship Act, 1956. This being an admitted position that parties seeking permission are Hindu by religion belonging to Sindhi community and, therefore, provisions of section 11 of the Act of 1956 will be applicable. Therefore, Parmanand being at best de facto guardian is not entitled to dispose of, or deal with, the property of a Hindu minor namely Varun Talreja.
10. In view of such fact
