FA/4455/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4455 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ========================================================= TUSHAR DEVENDRABHAI TRIVEDI - Appellant Versus NO RESPONDENT – Respondent ========================================================= Appearance : MR PV HATHI for the Appellant. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 21/04/2008 ORAL JUDGMENT 1. The present appeal is preferred under Section 47 (e) of the Guardians and Wards Act, 1890 against the judgment and order dated 21-03-2006 passed by the Presiding Officer, Fast Track Court No. 2, Jamnagar in Civil Miscellaneous Application No. 99 FA/4455/2006 2/8 JUDGMENT of 2005 by which the learned Judge dismissed the application preferred by the appellant. 2. The short facts giving rise to the present appeal are stated hereinbelow: The appellant filed an application in the District Court at Jamnagar seeking permission to dispose of the property situated in Satyam Colony, Jamnagar, which originally belonged to his father, who expired on 21-04-2002. The father of the appellant had disposed of the said property by Will to him and his two minor sons and the said property is in their respective names. The appellant has 50% share in the property and the other 50% share is held by two minor sons. It is also contended in the application that the property situated in Jamnagar is not used as they have already settled in other property situated at Ahmedabad. It is also further stated in the application that for the benefit of the minors, the appellant intends to purchase the new property at Ahmedabad from the income derived from the sale of the property at Jamnagar and, therefore, the application was preferred by the appellant before the learned District Judge. The appellant had also shown readiness to deposit the entire amount of sale in the name of the minors even though he had 50% share in the said property and, therefore, with a view to purchase new property at Ahmedabad, the application was preferred before the District Court under the provisions of Guardians and Wards Act read FA/4455/2006 3/8 JUDGMENT with the provisions of the Hindu Minority and Guardianship Act, 1956. The public notice inviting objections was published in the local newspaper of Jamnagar on 24-10-2005 and there was no protest or objection from anyone in response to the public notice which was published in the local newspaper of Jamnagar. The appellant also filed detailed affidavit in support of the contentions raised therein and produced all necessary documents such as copy of the death certificates, share certificate, property card and the Will of the deceased father. The learned Judge, after considering the averments made in the application and the submissions canvassed on behalf of both the sides, rejected the application. Being aggrieved by the aforesaid order, the learned Advocate has preferred the present appeal. 3. It is submitted by learned Advocate Mr. P. V. Hathi for the appellant that the Trial Court has not considered the provisions of Section 8 of the Hindu Minority & Guardianship Act, 1956. The learned Advocate submitted that sub-section (4) of Section 8 gives power to the Court to grant permission to the natural guardian to sell the property in case of necessity or for any evident advantage to the minor. The learned Judge considered the documentary evidence, including the Will and the death certificate, and held that the deceased had given the property on the condition that the said property shall not be disposed of in any manner till the FA/4455/2006 4/8 JUDGMENT grandsons attain the age of 21 years. Thus, the last desire of the deceased seems to be that the property is to be kept intact and the same is not disposed of by sale, mortgage or in any manner till his grandsons attain the age of 21 years. The learned Judge committed error in not considering the provisions of Section 8 of the Hindu Minority and Guardianship Act in its true perspective while rejecting the application preferred by the appellant. The learned Judge ought to have used the discretion and imposed conditions on the appellant while granting the application for the disposal of the minors' interest in the property. The learned Judge ought to have taken into account the paramount consideration of the interest of the minors while deciding the application preferred by the appellant. Thus, the learned Advocate submitted that the appeal requires to be allowed and necessary permission be granted, as prayed for, by quashing and setting aside the judgment and order dated 21-03-2006 passed by the Presiding Officer, Fast Track Court No. 2, Jamnagar. The appellant be permitted to sell the Jamnagar property on such terms and conditions as mentioned in the application or on any other conditions which the Court may deem fit to impose on the appellant. 4. Heard learned Advocate Mr. P. V. Hathi for the appellant at length and perused the Record & Proceedings of the case as well as the judgment and order under challenge. FA/4455/2006 5/8 JUDGMENT 5. On perusal of the order passed by the Presiding Officer, Fast Track Court No. 2 at Jamnagar in Miscellaneous Civil Application No. 99 of 2005, it becomes clear that the learned Judge, while considering the application preferred by the appellants, perused the Will of the property produced vide Exh. 22 and held that the deceased had given the property on the condition that the said property shall not be disposed of in any manner till the grandsons attain the age of 21 years. In view of the last desire of the deceased that the property is to be kept intact and the same is not disposed by sale, mortgage or in any other manner till his two grandsons attain the age of 21 years, the application came to be dismissed by the learned Judge. The learned Judge had not considered the provisions of Section 8 of the Hindu Minority & Guardianship Act. Sub-section (4) of Section 8 reads as under: “(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in the case of necessity or for an evident advantage to the minor.” On perusal of Section 8 and more particularly sub-section (4) of Section 8, it becomes clear that the Court can grant the permission to the natural guardian to sell or dispose of the property in case of necessity or for evident advantage to the minor. The Will, which is produced at Exh. 22, cannot have the over-riding effect over Section 8 of FA/4455/2006 6/8 JUDGMENT the Hindu Minority and Guardianship Act, 1956. Though the exception is carved in sub-section (4), the learned Judge has not considered the said provision while rejecting the application of the appellant. It has been submitted by the learned Advocate that the property situated in Jamnagar is not used at all and they have already settled in Ahmedabad and in order to derive maximum income from the sale of the Jamnagar property, permission is required to be given to the appellant. It is also submitted by the learned Advocate that if the permission is given to dispose of the property at Jamnagar, then the appellant shall deposit the entire amount of the said property in the name of the minor even though he has 50% share in the property. The learned Advocate submitted that the paramount consideration for the appellant is to given maximum benefit to the minor and to protect the interest of the minor. In view of the aforesaid facts and circumstances, the appeal, in my considered view, is required to be allowed. 6. For the foregoing reasons, the appeal is allowed. The judgment and order dated 21-03-2006 passed by the learned Presiding Officer, Fast Track Court No. 2, Jamnagar is quashed and set aside. The appellant is permitted to dispose of the property in question subject to the following conditions: (i) 25% of proceeds of sale shall remain deposited in the name of the minor son – Deep till he exercises the option to FA/4455/2006 7/8 JUDGMENT continue the deposit or to opt out on his attaining majority. (ii) 25% of proceeds of sale shall be given to the other son – Dhaval, and as he has already attained majority, it will open for him to appropriate the proceeds as per his wish. (iii) The appellant is free to appropriate the proceeds as per his wish, however, the same is limited to remaining 50% of the proceeds. (iv) Even though the property is to be purchased out of the proceeds solely falling to the share of the appellant, it shall be jointly held by the appellant and his two sons. However, the major son would be free to contribute any amount whereas the minor son can do so only on attaining the majority. (v) The documents pertaining to deposit of sale proceeds and pertaining to property having been purchased to be produced before this Court within one month from the respective transaction. 7. The appeal stands disposed of accordingly. Decree to be drawn in terms of the above order. No costs. FA/4455/2006 8/8 JUDGMENT [H. B. ANTANI, J.] /shamnath