FAO No.4715 of 2009 (O&M) - 1 - ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4715 of 2009 (O&M) Date of decision:10.08.2010. Jaswinder Kaur ...Appellant Versus General Public ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. APS Shergill, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. This appeal is directed against the order of Civil Judge (Senior Division), Barnala dated 13.08.2009 by which an application filed by the appellant under Section 8 of the Hindu Minority and Guardianship Act, 1956 (for short “the Act”) has been dismissed. In brief, the appellant is the mother of minor Gurpreet Singh who is allegedly owner of 50/78 share in 78 Kanals of land described in the first part and 1/2 share in 33 Kanals 7 Marlas of land described in second part, situated within the revenue estate of village Pakho-A, as described in the title of the application. She filed the present application as a natural guardian of Gurpreet Singh aged 8 years (minor) to sell the aforesaid land on the ground that it would fetch good price. Before permission could be obtained she had already entered into an agreement dated 11.06.2008 with Chet Singh S/o Chhota Singh, resident of village FAO No.4715 of 2009 (O&M) - 2 - ***** Kaleke to sell the aforesaid land at the rate of Rs.5,80,000/- per acre and had received imprest of Rs.10 lac. The date for registration of sale deed was fixed as 31.12.2008. It was alleged that after sale of the aforesaid land, the sale proceeds shall be deposited in a nationalized bank or would be invested for purchasing some other land in the name of the minor. The applicant/appellant has, thus, alleged that the land is sought to be sold for the welfare of the minor. In this case, the general public was impleaded as respondent who was proceeded against ex-parte on 08.05.2009 and in her ex-parte evidence, applicant/appellant examined herself as AW1 and Sukhdev Singh as AW2 besides tendering some documents in evidence. The learned Court below dismissed application of the appellant after observing as under: - “After considering the grounds taken in the application as well as the evidence on record, it is found that the sale of the land has been stated to be for the benefit of the minor. It has not been explained as to how it would be for the benefit of the minor. Before proceeding further, it may be stated that the total share in the land of the minor is more than 8 acre. The Jamabandi Ex.A2 shows that it is a good quality land irrigated with canal water. A third person is not a co-sharer in the said land. The original co- sharers in the said land have been shown to be is minor and his father Dalip Singh. The only FAO No.4715 of 2009 (O&M) - 3 - ***** reasons which has been cited for the sale of the land is that with the sale proceeds either another piece of land shall be purchased in the name of the minor or the sale proceeds shall be deposited in a Nationalized Bank. There does not appear any cogent reason for selling such a good quality land in which there is no other third co-sharer and to purchase another land with the sale proceeds. There also does not appear any reason to deposit such a huge amount of sale proceeds in the bank in the name of the minor as the interest of the Nationalized Bank now a days is a very nominal.” Aggrieved against the aforesaid order, the appellant is in appeal before this court in which learned counsel has vehemently argued that the learned Court below has erred in declining the permission to sell the land of her minor son without appreciating that it was fetching good price and the amount of sale consideration could be deposited in the nationalized bank or could be further invested for the purchase of some other land in the name of the minor. In support of his contention, he has relied upon a decision of Karnataka High Court in the case of A. Chidananda and others Vs. Smt. Lalitha V. Naik and others AIR 2006 KARNATAKA 128 and a decision of Bombay High Court in the case of Shripati s/o Santu Mane Vs. Goroba s/o Nivarti Ghutukade and another AIR 2009 BOMBAY 6. I have heard learned counsel for the appellant and perused FAO No.4715 of 2009 (O&M) - 4 - ***** the record with his able assistance. Before appreciating the contention of learned counsel for the appellant, it would be relevant to refer to Section 8 of the Act: - “8. Powers of natural guardian. -- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court, -- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or by any person claiming under FAO No.4715 of 2009 (O&M) - 5 - ***** him. (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. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular -- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4A thereof; (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court. FAO No.4715 of 2009 (O&M) - 6 - ***** (6) In this section “court” means the city civil court or a district court or a court empowered under section 4A of the Guardian and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.” According to the aforesaid provision, the natural guardian of a Hindu minor has power to do all acts which are necessary, reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate subject to the provisions of this section, but he would not be able to mortgage, create a charge, transfer by sale or gift any part of the immovable property of the minor or lease it out for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority, without the previous permission of the Court. Any disposal of the immovable property in terms of sub-section (1) or sub-section (2) shall be voidable at the instance of the minor or by any person claiming under him. It is also provided that the Court would not grant permission even 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. Section 8 of the Act is enacted basically to protect the interest of a minor insofar his immovable property FAO No.4715 of 2009 (O&M) - 7 - ***** is concerned. Even if his rights in the immovable property are being effected by the act and conduct of his natural guardian, the Court is the overall guardian of the minor who has to see that the title of the minor in the immovable property is not affected by any of the mode of transfer of property where there is no necessity or any evident advantage to the minor. Thus, Court has to look into the application filed under Section 8 of the Act on the touchstone of the necessity and evident advantage to the minor in the transfer of his title in the immovable property. In the present case, neither the appellant could show any necessity for the sale of immovable property of the minor nor any evident advantage. All that has been said is that the immovable property of the minor would be sold either to keep the sale consideration in the nationalized bank or for purchasing some other land. However, the reason assigned by the applicant/appellant does not appeal to logic and is not found by this Court as an evident advantage to the minor because price of real estate is increasing incessantly, therefore, it would not be in the interest of the minor to permit the applicant/appellant to sell the land of the minor which, as per jamabandi Ex.A2, is a good quality land irrigated with canal water. Insofar as the judgment relied upon by learned counsel for the appellant in the case of A. Chidananda and others (supra) is concerned, it pertains to a civil suit where the plaintiffs had filed a suit for cancellation of sale deed executed by defendants and for partition of the suit property. The suit was filed on the ground that plaintiffs were minors, whereas defendant Nos.1 and 2 had sold the property to defendant No.3. FAO No.4715 of 2009 (O&M) - 8 - ***** The defendant No.1 was not aware of the worldly affairs being an innocent villager, who did not deal with the property in a prudent manner and the 3rd defendant taking advantage of her innocence prevailed upon her to execute the sale deed of the entire family properties in his favour for a meagre sum. In this background, it was held that the property of the deceased father inherited by the minors was undivided and the mother was legally competent to alienate the property acting as a Manager either for family exigencies or for discharge of antecedent debts of the family and, thus, the sale was held binding on the minors. The facts of that case are totally distinguishable from the facts of the present case and as such the said judgment is not applicable. The case of Shripati s/o Santu Mane (supra) also arises out of a regular second appeal in which it was held that the sale of interest of the minor in the undivided interest of the joint family property for legal necessity is binding on the minor inspite of non-obtaining of permission from the Court. The facts of this case also do not apply to the facts of the present case because permission to sell the land, in the present case, is being sought not for the legal necessity or for any other necessity rather it is being sought to sell the land of the minor for the sake of getting good price. Therefore, this judgment is also not applicable in the present case. No other point has been raised by learned counsel for the appellant. In view of the above discussion, I do not find any merit in the present appeal and any error in the order of the learned Court below and as such the present appeal is hereby dismissed. No costs. August 10, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE