1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 2596 OF 2009 Shantanu s/o Pandit Khandade ...Appellant Versus The State of Maharashtra ...Respondent ..... Mr. Vivek Bhavthankar, advocate for the appellant Mr. N.N. Jadhav, A.G.P. for respondent. ..... CORAM: R.G. KETKAR, J. DATED: 21ST NOVEMBER, 2009 PER COURT:- 1 Heard Shri. Bhavthankar, learned counsel for the appellant and Shri Jadhav, learned A.G.P. for the respondent. By order dated 29.9.2009, this Court issued notice for final disposal of the appeal at the stage of admission. By subsequent order dated 7.11.2009, the record and proceeding of the case was called for. Admit. By consent of the parties, the appeal is heard finally. 2 This appeal is directed against the judgment and order dated 24.6.2009, passed by the learned Adhoc District Judge-2, Latur, whereby the application, made by the appellant for permission to transfer 3 acre 20 gunthas out of Gat No. 173, situate at village Peth, 2 Tq. and District Latur, in accordance with Section 29 r.w. Section 31 of the Guardian and Wards Act, 1890, (for short "the Act"), was rejected. 3 The relevant and material facts for disposal of this appeal, are as follows:- Minor Shantanu, is the son of next friend Pandit Ningram Khandade. It is set out that the next friend has no adverse interest against the minor and his property he is taking care of minor and looking after future of the minor. The next friend Pandit has two brothers, father and mother, who are alive. There was family partition in respect of ancestral properties i.e. landed properties viz. Gat No. 155, 167, 173 and 67 and house at village Peth, The partition was effected on 7.4.1993. As per the partition, respective sharers are enjoying their respective shares in the landed property and are living separately. 4 It is the case of the appellant that brother of next friend Ramakant Ningram Khandade, was mentally retarded. His wife Surekha, was taking care of Ramakant and the minors next friend Pandit were residing together on the advise of the parents so as to assist and co-operate Ramakant in cultivation as well as management of his share. It was orally agreed between Pandit and wife of Ramakant, Surekha to live separately and cultivate the landed 3 properties separately from Gudhipadwa of 2009. In view of this oral agreement and advise of others, the mother Haribai, the next friend Pandit, agreed to give land admeasuring 3 acres 20 gunthas out of her share in the land bearing Gat No.173 to Ramakant at the time of actual separation. However, inadvertently, Haribai nominally transferred land admeasuring 3 Hectare out of Gat No.173 in favour of minor Shantanu, under the guardianship of his next friend Pandit on 17.3.2004. In fact, Haribai intended to transfer 3 acres 20 gunthas in favour of Ramakant but due to mistake she wrongly transferred 3 Hectare out of Gat No. 173 in favour of minor. It is the case of the applicant that the said sale deed dated 17.3.2004 was wrongly executed in favour of the minor. In view of the oral understanding among the parties, Ramakant and his wife raised objection as they were not given 3 acre 20 gunthas out of Gat No.173. It is the case of the appellant that after giving 3 Acre 20 gunthas from land from Gat No.173 to Ramakant, minor Shantanu will have four acres land from the same Gat and therefore, there will not be any loss or prejudice to the rights of the minor Shantanu. On these among other grounds, the application was made seeking permission to transfer the 3 Acre 20 gunthas from southern side from Gat No.173 in favour of Ramakant or his wife Surekha. 5 The appellant produced documents on record in support of his case. By the impugned judgment and order dated 24.6.2009, the 4 learned Trial Judge rejected the application. After considering the material on record, the learned Judge came to the conclusion that the nature of transaction appears to be a mistake and in order to honour the commitment, the present application is made. In the opinion of the learned Trial Judge, such transaction is not covered under Section 29 and 31 of the Act. Sections 29 and 31 of the Act, read as under:- 29. Limitation of powers of guardian of property appointed or declared by the Court.- Whereas a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,- (a) mortgage or change, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of is ward, or (b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor. 31. Practice with respect to permitting transfers under Section 29.- (1) Permission to the guardian to do any of the acts mentioned in Section 29 shall not be granted by the Court except in case of necessity or for an evident advantage to the ward. (2) The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions, if any, as the Court may see fit to attach to the permission, and it shall be recorded, dated and signed by the Judge 5 of the Court with his own hand, or, when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him. (3) The court may in its discretion attach to the permission the following among other conditions, namely:- (a) that a sale shall not be completed without the sanction of the Court; (b) that a case shall be made to the highest bidder by public auction, before the court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court subject to any rules made under this Act by the High Court directs; (c) that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs; (d) that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs. (4) Before granting permission to a guardian to do an act mentioned in Section 29, the Court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice 6 thereof, and shall hear and record the statement of any person who appears in opposition to the application. 6 Perusal of Section 31, would indicate that the permission to the guardian to do any of the acts set out in Section 29 shall not be granted by the Court except in the case of necessity or for an evident advantage to the ward. The order granting permission shall recite the necessity or advantage, as the case may be, as also specify such condition, as the court may see fit to attach to the permission. Thus, the power conferred upon the court to grant permission for doing any act set out under Section 29 is to be exercised only in the case of necessity or advantage to the ward. No such case is made out by the appellant in the instant case. In view of this, the learned Trial Judge was justified in rejecting the application. I do not see any error committed by the learned Trial Judge in rejecting the application. The appeal is devoid of any substance and accordingly fails. The appeal is dismissed with no order as to costs. (R.G.KETKAR, J.) rlj/