No court permission is required for a natural guardian to sell the undivided share of a minor in joint family property, but the minor's welfare must be prioritized.

ORAL ORDER

1. In this appeal under section 47 of the Guardians and Wards Act (GNW Act for short) read with section 96 of the Code of Civil Procedure, 1908 (the Code for short), the appellants have assailed the judgment and order dated 25.02.2021 passed by the learned Additional District Judge in Civil Miscellaneous Application No.68 of 2020 whereunder the application under section 9 of the GNW Act for permission to sell the undivided share of minor is rejected.

2. Heard Ms. Shivangi Vyas, learned advocate for the appellant.

3. Ms. Vyas, learned advocate tenders revenue record in respect of the subject land reflecting the names of all the co- owners of the land and affidavits of other co-owners indicating that they have no objection if the entire parcel of land is permitted to be shown.

4. Ms. Vyas, learned advocate submits that the application preferred by the appellant under section 9 of the GNW Act was not adversarial as no objections were filed for not granting the permission to sell the undivided share of the minor son of the appellant. Relying upon the decision of this court in the case of Sankhala (Mali) Kantaben Wd/o Bharatbhai Laljibhai v. Rabari Panchabhai Chelabhai reported in AIR 2020 Guj. 205 , she submits that as such under section 12 of the GNW Act, no permission is required to sell the undivided share of minor. She, therefore, urges that the impugned judgment may be set aside and the appellant may be permitted to sell the undivided share of her minor son.

5. This court in the case of Sankhala (Mali) Kantaben Wd/o Bharatbhai Laljibhai v. Rabari Panchabhai Chelabhai (supra) has observed as under:-

“1. This appeal seeks to challenge the order dated 07.09.2019 rendered in Civil Misc. Application No. 32 of 2019 by the learned 2nd Additional District Judge at Deesa, District Banaskantha declining the permission to sale the property of minor under Section 12 of the Guardians and Wards Act.

2. On consideration of the submissions made by the learned Counsel for the appellant and on perusal of the impugned order, it would transpire that the appellant is the mother of the minor in absence of the father who expired on 10.01.2017. It appears that the properties sought to be sold comprises undivided interest of the minor in the joint family property. As the following discussion would show that for conveyance of such interest of minor, permission contemplated under Section 8 (2) of the Hindu Minority and Guardianship Act, 1956 would not be necessary. The Court below in this regard was not properly assisted.

3. Learned Counsel for the appellant has relied upon Sections 6 , 8 and 12 of the Hindu Minority and Guardianship Act, 1956 , to contend that in case of an undivided share of the minor in the joint family property, no permission of the Court would be necessary.

3.1 For the ready reference, it would be beneficial to quote the Sections 6 , 8 and 12 of the Hindu Minority and Guardianship Act, 1956 .

“6. Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in case of an illegitimate boy or an illegitimate unmarried girl —the mother, and after her, the father;

(c) in the case of a married girl—the husband: Provided that no person shall be entitled