MINOR SAUMYA PRADIPKUMAR PATEL THROUGH HARESHKUMAR KESHAVLAL PATEL vs SHRIMAD CONSTRUCTION

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Online)(Guj) 9237

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/APPEAL FROM ORDER NO. 6 of 2021 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2021 In R/APPEAL FROM ORDER NO. 6 of 2021 FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER ==========================================================
1 Whether Reporters of Local Papers may be allowed No

1 Whether Reporters of Local Papers may be allowed to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? No
========================================================== MINOR SAUMYA PRADIPKUMAR PATEL THROUGH HARESHKUMAR KESHAVLAL PATEL Versus SHRIMAD CONSTRUCTION ==========================================================
Appearance:
MR AMIT M BAROT(5868) for the Appellant(s) No. 1 MR. JAL UNWALA, SR. ADVOCATE WITH MR JIGAR G GADHAVI(5613) for the Appellant(s) No. 1 MR. KAMAL TRIVEDI, SR. ADVOCATE WITH MR TATTVAM K PATEL(5455) for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 3,4,5,6,7,8 RULE SERVED BY DS for the Respondent(s) No. 2 ==========================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER Date : 15/06/2022

1	Whether Reporters of Local Papers may be allowed to see the judgment ?	No
2	To be referred to the Reporter or not ?	No
3	Whether their Lordships wish to see the fair copy of the judgment ?	No
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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 4^th 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 Guardianship Act, 1956 (hereinafter referred to as “the Act”) property having his share has been sold out by sale deed. Along with the plaint, the plaintiff has also moved an application for temporary injunction restraining the defendant No.1 from putting any construction over the suit land and for making any improvement in respect of the suit property till disposal of the suit and from selling, transferring or creating any charge or creating any third party right or otherwise in the suit property or dealing with the suit in any manner till the disposal of the suit. The said application for interim injunction came to be dismissed by the trial Court. This order has been challenged by the plaintiff mainly on the ground that without prior permission of the Court, the Share of the plaintiff could not have been sold and no title to the property could be said to be passed in favour of the defendant No.1. It is also contended that the sale transaction was no for the necessity of the minor and since the transaction was in breach of provision of Section 8(2) of the Hindu Minority and Guardianship Act, 1956, the trial Court ought to have granted interim injunction against defendant No.1.

4. Heard Mr. Jal Unwala, learned Senior Counsel with Mr. Jigar Gadhvi, learned advocate for the appellant, Mr. Kamal Trivedi, learned Senior Counsel with Mr. Tattvam Patel, learned advocate for the caveator- defendant No.1. None has remained present for other respective respondents, though served. Perused the material placed on record and the decisions cited at bar.

5. Mr. Jal Unwala, learned Senior Counsel assisted by Mr. Jigar Gadhvi, learned advocate for the plaintiff- appellant, has vehemently submitted that in the present case, without prior permission of the concerned Court, the share of the minor has been sold by the mother of the minor. He has submitted that as per Section 8 of the Hindu Minority and Guardianship Act, the prior permission of the Court is required if the share of the minor is proposed to be disposed of by the guardian. He has submitted that in the present case, as per the averment made in the agreement to sell, there was recital to pay Rs. 20 Lakh to the minor and there was also recital that prior permission of the Court would be obtained. He has also submitted that inspite of this averment, share of the minor has been sold by his mother without any prior permission of the Court. He has also submitted that even the purchaser has not persisted for such permission. According to him, in view of the bifurcation of the amount of share transaction and specific amount has been fixed for payment of the minor, it would mean that there is severance of jointness of the property, and therefore, without prior permission of the Court, no sale transaction ought to have been ent

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