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2022 Supreme(Online)(Guj) 9237

GUJARAT HIGH COURT
MINOR SAUMYA PRADIPKUMAR PATEL THROUGH HARESHKUMAR KESHAVLAL PATEL – Appellant
Versus
SHRIMAD CONSTRUCTION – Respondent


Advocates:
['JIGAR G GADHAVI', 'TATTVAM K PATEL', 'RULE SERVED BY DS', 'RULE SERVED']

Judgement Key Points
  • The appeal challenges the trial court's order dated 1.2021 dismissing the application for temporary injunction (Exh-5) in Special Civil Suit No. 120 of 2020, filed by minor plaintiff through next friend (maternal uncle of minor's mother) seeking cancellation of Banakhat dated 15.6.2019, GPA dated 16.11.2019, and sale deed dated 16.11.2019. [1] (!) (!) (!)

  • Suit property is ancestral joint family property; minor's father deceased; natural guardian (mother) sold minor's undivided share without prior court permission under Section 8(2) of Hindu Minority and Guardianship Act, 1956 (HMGA); plaintiff claims transaction void/voidable, no legal necessity, and interim injunction warranted as prima facie case, balance of convenience, and irreparable injury exist. (!) [3][5]

  • Agreement to sell recites payment of Rs. 20 Lakh to minor and intent to obtain court permission; separate amounts allocated per seller's shares, with cheques issued individually, including to minor's guardian for fixed deposit until majority; sale deed recites sale for minor's benefit, full consideration received by family. [5] (!)

  • Defendant No.1 (purchaser) argues: no partition by metes and bounds occurred; property sold as undivided joint family share; Section 8(2) HMGA inapplicable to undivided interest in joint family property managed by natural guardian/Karta; sale for minor's benefit exempts prior permission; next friend lacks locus standi as mother (natural guardian) alive and residing with minor; third-party suit suggests motive to extract money. (!) (!) (!)

  • Section 8(1) HMGA empowers natural guardian for acts benefiting minor or estate; Section 8(2) prohibits sale/mortgage/transfer of minor's immovable property without prior court permission; contravention under Section 8(3) renders disposal voidable (not void) at minor's instance; permission under Section 8(4) only for necessity/evident advantage. (!) (!) (!) (!) (!) (!)

  • Section 8 HMGA applies to minor's separate property, not undivided interest in joint family property; no natural guardian contemplated for such undivided interest under Sections 6/12 HMGA; Karta/natural guardian may alienate joint family property (including minor's share) for legal necessity/benefit without court permission. (!) (!)

  • No actual partition; separate cheques per sellers' demands do not sever jointness; mother (natural guardian) received minor's share consideration for fixed deposit benefit; sale for minor's necessity/benefit; minor compensable in money; next friend (third party) unauthorized without court permission, mother not suing. (!)

  • Trial court order plausible; appellate interference limited to arbitrary/perverse discretion; no reassessment if trial view reasonably possible; appeal dismissed, suit expedited. (!) (!) (!)


ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the order dated

4.1.2021 passed below Exh-5 in Special Civil Suit No. 120 of

2020 by the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, the appellant who is the original plaintiff has filed the present Appeal from Order under Order 43 Rule 1(r) of CPC.

2. The appellant is the plaintiff and respondents are original defendant before the trial Court. For the sake of brevity and convenience, the parties are referred to in this order, as per the status assigned to them before the trial Court i.e.

plaintiff and defendants.

3. The brief facts of the present appeal in nutshell, are as under:

3.1 The plaintiff minor Saumya S/o. Pradipkumar Sunilbhai Patel has preferred the suit, through his next friend namely Haresh Kumar Keshavlal Patel, who is alleged to be maternal uncle of the mother of the minor and he has no adverse interest to that of the minor, for cancellation of the Banakhat dated 15.6.2019 as well as 16.11.2019 General Power of Attorney dated 16.11.2019 as well as sale executed dated 16.11.2019 on the ground that without obtaining required permission under Section 8(2) of the Hindu Minority and Guardiansh

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