1 F.A.No385/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.385 OF 2011 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.V.V.Bhavthankar, advocate for the appellant. Mr.T.S.Lodhe, Asstt. Govt. Pleader for the State. CORAM : S.V.GANGAPURWALA,J. Date : 04.05.2011. 1. Heard. 2. The present appellant had filed an application purportedly U/s 8 of the Guardians and Wards Act, seeking permission to mortgage and/or create charge over the share of the minor Santosh in respect of land Gat No.105 of village Aarvi, Taluka and District Latur. The said application is rejected by the Adhoc District Judge-2, Latur. Aggrieved thereby, the applicant has filed the present appeal. 3. Mr.Bhavthankar, learned counsel for 2 F.A.No385/11 applicant submits that in fact, for mortgaging the undivided share of the minor, no permission is required under the statute but the Bank is not mortgaging the same without the permission of the Court. The learned counsel contends that the minor would be a share holder and a Director of the Company. He also would be benefited by mortgaging the said property. The Company has started functioning and is in profit as can be vouched from the income-tax return that has been submitted for the previous year. The learned counsel contends that the applicant only has 1/3rd share in the said property. It was the father who has purchased the property in the name of minor. The applicant and other joint owners have formed a Company named as "United Lumbers Private Ltd., Chennai" and the minor is also a share holder of the said Company. The minor would be benefited as the loan is required for the functioning of the Company of which the minor is a share holder and he would be entitled for the profits thereof. The Company is running in profit as is evident from the income tax return. The 3 F.A.No385/11 learned counsel contends that the Court below has not taken into consideration this aspect. 4. Learned Asstt. Government supports the order passed by the Court below and contends that the interest of minor is required to be protected and the transaction does not appear to be in the interest of minor. 5. With the assistance of the learned counsel, I have gone through the judgment and the relevant documents filed before the Court below. No doubt, if an undivided share of the minor is required to be transferred, alienated or mortgaged, the permission U/s 8 of the Guardians and Wards Act, is not necessary. However, when the applicant has approached the Court seeking permission to transfer/mortgage the said property then the Court will have to view the interest of the minor. 6. The appellant has produced on record the income tax return which shows that the Company has secured profit after tax of Rs.45,066/- (Rupees forty five thousand sixty six only). The report of the Director is placed on record, so also 4 F.A.No385/11 the income-tax return acknowledgment of the said Company is produced on record. The property is being sought to be mortgaged/charged for the loan that will be borrowed. The minor would not be personally liable to pay loan but only a charge would be created over the property i.e. undivided share of the minor. The applicant minor is also said to be the share-holder of the Company, who would be a beneficiary in the profits. The aforesaid circumstances would go to show that if the said undivided share of the minor is mortgaged or charged with the financial institution then the same would not be against the interest of the minor. Even the natural guardian i.e. the father of the minor who has moved the application does not have any interest adverse to the interest of the minor. In such circumstances, the transaction of mortgage/charge which is sought to be created over the undivided share of the minor appears to be the interest of the minor. As such the appeal is allowed. The application filed by the applicant bearing Misc. Application No.239/2009 is partly allowed and the applicant 5 F.A.No385/11 is permitted to execute mortgage in favour of financial institution in respect of undivided share of the minor in land Gat No.105 of village Aarvi, Taluka and District Latur. The application is allowed to the extent of property bearing land Gat No.105 of village Aarvi, Taluka and District Latur. As far as other property is concerned the same is outside the territorial jurisdiction of this Court and no orders can be passed in respect of same. The First Appeal is accordingly disposed of. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.04.05.2011. asp/office/fa385.11 6 F.A.No385/11