Delhi District Court
Sakshi Devi vs The State on 31 July, 2013
IN THE COURT OF SH. SUNIL RANA
ADDITIONAL DISTRICT JUDGEII: ROHINI COURTS: DELHI
GP22/12
Unique Code No. 02404C0130492012
Sakshi Devi
w/o Late Sh. Arun Sharma
R/o B Block, Gali No. 92,
Sant Nagar, Burari, Delhi ...... Petitioner
Vs.
The State ....... Respondent
Date of Institution : 16.05.12
Date on which the case was reserved for order : 18.07.13
Date of Decision : 29.07.13
JUDGMENT
1. By this order I shall dispose of the present application u/s 8 & 10 of Hindu Minority & Guardianship Act, 1956 seeking permission to sell the 1.19% share of minor Manya Sharma in the property bearing no.C494, Gali no. 11, Majlis Park, Delhi33.
2. It has been stated that petitioner is the mother of minor Baby GP No. 22/12 1/12 Manya Sharma and her husband Arun Sharma died intestate on 12.02.11 and was the coowner/sharer upto the extent of 1/28th of one plot bearing no. C494,Gali no. 11, Majlis Park, Delhi33, area measuring 111 sq. yards and accordingly, minor is having 1.19% (1/84th) share in the abovesaid property. It has been further stated that initially the abovesaid property was owned by grandfather of late Arun Sharma who was survived by seven sons and after his death father of late Arun Sharma, namely, Darshan Lal inherited 1/7th undivided share in the aforesaid property in question and being one of the legal heir of the deceased Darshan Lal, deceased Arun Sharma had inherited 1/28th share of the property in question and except petitioner and minor Baby Manya there is no other legal heir of deceased Arun Sharma as Smt. Bimla, mother of deceased died on 30.09.12. It has been further stated that petitioner, being mother and natural guardian of minor be appointed as guardian of person & property of minor and permission be granted to sell the share of minor in the abovesaid property in question so for the betterment, interest and welfare of minor Manya GP No. 22/12 2/12 Sharma.
3. Notice of this petition was issued to the State through Collector and to the other respondents and copy of the notice was also got affixed on the notice board of the Court House on 04.06.12 and citation was also published in the newspaper "Virat Vaibhav" dated 06.06.12, for information to the general public.
4. Valuation report was filed by SDM concerned and the value of the property bearing no. C494, Majlis Park, Adarsh Nagar, Delhi33, area measuring 111 sq. yards was assessed to Rs.35,86,178/.
5. In order to prove her case, petitioner had examined herself as PW1 tendered her evidence affidavit which is Ex.PW1/A, death certificate of Late Arun Sharma is Ex.PW1/1, copy of the sale deed of the property in Urdu is Ex.PW1/2 and english translation of the said sale deed is Mark "A", copies of the relinquishment deeds executed in favour of Bansi Lal s/o Late Anant Ram and Smt. Sheela Devi, are Exs. PW1/3 (colly.) and Ex.PW1/4 (colly.), birth certificate of Baby Manya Sharma showing her GP No. 22/12 3/12 date of birth as 25.09.03 is Ex.PW1/5, copy of the ration card and PAN card are Ex.PW1/6 & Ex.PW1/7 (OSR), death certificate of Late Smt.Bimla Sharma, mother of Late Arun Sharma showing her date of death as 30.09.12 is Ex.PW1/8 and thereafter, PE was closed.
6. I have heard the arguments and perused the record carefully.
7. Before deciding this petition, I have gone through the provisions of Section 8 of Hindu Minority & Guardianship Act which reads as under: "(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 realisation, 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 GP No. 22/12 4/12 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 subsection (1) or subsection(2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining permission of the Court under subsection (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act..."
8. Section 8 of Hindu Law of Minority and Guardianship Act' 1956 GP No. 22/12 5/12 deals with the powers of natural guardian over the person & property of the minor children, though in respect of the powers of the natural guardian over the person of the minor, the section is not explicit.
9. There are no specific provisions in the Act relating to the powers of natural or other guardians over the persons of the minor children. The Guardians and Wards Act contains some scanty provisions. However, the powers and rights of the guardians over the persons of the minor are well settled under the general or common law of guardians. Powers are also subject to the paramount consideration of the welfare of children. Functionally, parents and guardians exist to see that children are properly brought up, looked after and educated so that by the time they attain adulthood, they have fair chance of coming up in life.
10. The guardian of the property of the minor has limited powers and can alienate minor's properties only for legal necessity and benefit of estate and the burden of proof of legal necessity is on the alienee and alienation without legal necessity is not void and voidable.
GP No. 22/12 6/12
11. It is well established that the court will accord permission to the guardian for any of the foregoing alienations only in case of necessity and evident advantage to the minor. Subsection (4) makes it evidently clear that the guardian will be accorded permission by the court only when he is able to convince the court that case of necessity and advantage to the minor exists, otherwise the court will not accord permission. This section or in other provisions of the Act does not define the terms "necessity" and "evident advantage" nor the court attempted to give any precise meaning to them. The reason is obvious: cases of 'necessity'; or "evident advantage"
can be so numerous and varied that any attempt to lay down a precise definition is bound to fail. Similarly, it is also difficult to lay down any precise standard of what is reasonable and proper and each case has to be determined on its own merits.
12. It is also well settled that before passing any order, Court should be satisfied that it is for the welfare of the minor as the welfare of the minor is a paramount consideration at the time of granting any permission to sell GP No. 22/12 7/12 the share of minor in the property under Hindu Minority & Guardianship Act. The court is not expected to pass any order permitting or rejecting permission to sell the property wherein the major share in the property is belonging to the other cosharers. In the present case, admittedly, deceased Arun Sharma was having only the 1/28th unspecified & undivided share in the property and the permission if can be granted, can only be confined to the share belonging to the minor.
13. Hindu Minority & Guardianship Act is a special enactment.
Section 8 of this Act gives statutory recognition to some of the powers which used to be enjoyed by the natural guardian under the old Hindu law and imposes few important restriction on him in dealing with the immovable property of the minor.
14. Special protection granted to the minor under this Act cannot be whittled down or eroded by any other special enactment. In the instant case, it is an admitted fact that minor, being the legal heir of deceased Arun Sharma, is having share only to the extent of 1/28th unspecified & undivided GP No. 22/12 8/12 share in the property which is a joint family property of several persons and not an individual property. It is well settled that provision of permission to transfer the share of minor is not at all attracted to the joint interest of the minor in the joint family property.
15. In the present matter following points are undisputed:
(i) property is joint family property and deceased Arun Sharma was having only undivided 1/28th share in the property in question alongwith other family members.
(ii) Petitioner being mother is the natural guardian of the minor.
(iii) share of the minor in the undivided property is to the extent of 1.19% (1/84th) only & is not partition has not taken place by metes and bounds.
16. Section 6 deals with natural guardian of a Hindu minor in respect of the minor's person as well as in respect of minor's property (excluding his or her undivided interest in joint family property). His or her undivided share in the joint family property is, however, specifically excluded from that section.
GP No. 22/12 9/12
17. Section 8 speaks of powers of natural guardian in relation to immovable property of minor which would means minor's definite property and not his indefinite interest in the joint family property. Language employed in Section 8 seems to be in pari materia with Section 29 of Guardian and Wards Act and hence, both will have to be viewed and construed similarly. Thus it appears that intention of Section 8 is not to fetter the customary powers of natural guardian in the matter dealing with joint family property including minor's undivided shares.
18. Essence of coparcenary property under the Mitakshara law is the unity of ownership in the whole body of coparcenary and notion is well known that no individual family member can predicate any definite share in the said property as interest is ever fluctuating depending upon exit and entry in the family by natural process or otherwise. It is only upon partition that definite share can be called out. Restriction imposed by Section 8 by their very nature and scheme cannot apply in practical life to a fluctuating interest of a minor. There is, thus, intrinsic evidence in the provision itself to GP No. 22/12 10/12 show that such undivided interest is untouched. Reference can be made upon judgment in case titled as, Girdhar Singh & Anr. Vs. Anand Singh & Ors., AIR 1982 Rajasthan 229(1) and Sunamani Dei Vs. Babaji Das & Ors., AIR 1974 Orissa 184.
19. Considering the facts and circumstances of the case, discussion made above, provision of law and precedent on this issue, case of the petitioner is that deceased Arun Sharma inherited 1/28th undivided share in the property in question and after his death, petitioner Sakshi Devi (wife), Smt. Bimla (mother) and minor Baby Manya Sharma (Daughter), are the only legal heirs and petitioner is seeking permission to sell the share of the minor which comes to 1.19% (1/84th share) of the property in question. However, petitioner has not been able to convince the court as to what are the legal necessity for the transfer of the undivided & unspecified 1.19% (1/84th share) share of minor in the joint family property.
20. In the instant case, admittedly the property in question is the joint family property and the petitioner and minor have inherited the unspecified GP No. 22/12 11/12 & undivided 1/28th share of deceased Arun Sharma in the plot bearing no. C494,Gali no. 11, Majlis Park, Delhi33, area measuring 111 sq. yards, belonging to several persons. Hence, permission to transfer the unspecified & undivided share of the minor in the property cannot be granted and is hereby declined and petition is dismissed and disposed of accordingly.
21. File be consigned to record Room.
Announced in the Open Court (SUNIL RANA)
On this 31.07.13 ADJII : ROHINI : DELHI
GP No. 22/12 12/12