Delhi District Court
Priyanka Tanwar vs The State on 19 July, 2022
IN THE COURT OF SH. MANISH KHURANA: ADJ-03 :
PATIALA HOUSE COURTS: NEW DELHI
CNR No. DLND01-000340-2021
GP No. 01/2021
IN THE MATTER OF:
PRIYANKA TANWAR
W/O LATE SH. JATIN TANWAR
R/O WZ-1656B, NANGAL RAYA,
SOUTH WEST DELHI
NEW DELHI-110046
............ PETITIONER
Vs.
THE STATE ........... RESPONDENT
Petition Presented On : 15.01.2021
Judgment Pronounced On : 19.07.2022
JUDGMENT
1. Vide this order I shall dispose of the present petition u/s 8, 9 and 10 of The Guardians & Wards Act, 1890 and section 8 of the Hindu Minority and Guardianship Act, 1956 filed by petitioner Ms. Priyanka Tanwar to be appointed as guardian of the minor child Rishi Tanwar S/o Late Sh. Jatin Tanwar as well as guardian of the property of the minor child's share and to permit to sell the minor's share in the said property.
2. Brief facts of the case are that Ms. Priyanka Tanwar who is the petitioner is the mother and natural guardian of the minor child namely Rishi Tanwar aged about 03 years. The petitioner has filed the present petition in the capacity of mother and natural guardian of the abovesaid minor. It GP 1/21 Priyanka Tanwar Vs. State Pages 1/9 is stated that the father of the minor Rishi Tanwar i.e. Late Sh. Jatin Tanwar s/o Late Virender Singh Tanwar expired on 21.09.2020 and his death certificate is annexed with the present petition. It is stated that the date of birth of minor child namely Rishi Tanwar is 06.12.2017 and the petitioner as well as the minor child are Hindu by religion.
3. It is stated that the husband of the petitioner became the sole owner of the property bearing no. WZ-1656B, Nangal Raya, New Delhi-110046 vide registered sale deed registered with Sub-Registrar-IX, Delhi as registration no. 710, Book No. I, Volume No. 19444 dated 16.07.2002, copy of the sale deed is annexed with the petition. It is stated that the husband of the petitioner was the owner of the said property and he expired on 21.09.2020 and left behind the petitioner Ms. Priyanka Tanwar (wife of the deceased) and Rishi Tanwar (son of the deceased, aged 03 years) as his legal heirs who have equal shares in the property by law of succession. Copy of the death certificate of deceased husband of the petitioner is enclosed herewith the present petition.
4. It is stated that the residence of the minor and petitioner is WZ-1656B, Nangal Raya, New Delhi-110046 and the minor is staying with the applicant/petitioner.
5. It is stated that there is no other legal heir of the deceased Late Sh. Jatin Tanwar except the petitioner Priyanka Tanwar and the minor child Rishi Tanwar and the applicant/petitioner being the natural mother is entitled to be appointed as the guardian of the minor child as well as for his property.
6. It is stated that the value of the property devolved by way of succession upon the petitioner and her child is valued at Rs.1,06,00,000/- (Rs. One Crore Six Lakhs) and the property is a residential house and that the GP 1/21 Priyanka Tanwar Vs. State Pages 2/9 minor child is residing with her mother/petitioner in the property bearing no. WZ-1656B, Nangal Raya, New Delhi-110046.
7. It is stated that the interest of the petitioner does not clash with that of the minor and she is looking after the welfare of the minor child and that the petitioner is fully dependent upon the income from the aforesaid house to look after the basic needs and education of the minor child and the present petition may be allowed so that she may get enough amount to properly look after the minor child. It is stated that petitioner may be appointed as guardian of the share of the minor in the abovesaid property with permission to sell the minor's share in the said property for the welfare of the minor child.
8. Notice of the petition was issued to the respondent and the notice was also issued to the general public through publication in the national local daily newspaper 'The Times of India' dated 05.04.2022. However, no one appeared to file any objection to the present petition.
9. I have heard the arguments advanced by Ld. Counsel for the petitioner and have gone through the case in hand.
10. Ld counsel for the petitioner submits that the petitioner is already a natural guardian of the minor child being his biological mother and by way of present petition, the petitioner is restricting her claim to the extent of appointment of the petitioner as the guardian for the share of the minor in the abovesaid property.
11.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 GP 1/21 Priyanka Tanwar Vs. State Pages 3/9 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 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 the permission of the court under sub-
GP 1/21 Priyanka Tanwar Vs. State Pages 4/9 section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of that Act.
12. The clauses of the said section deal with the various aspects of the guardian's powers over the person and property of the minor children. Clause (2) contains specific provision regarding limitations on the guardian's general power. It relates to guardian's power of alienation of minor's property. From the aspect of guardian's power of alienation, alienation is split into two (a) leases, and (b) other types of alienation. Sub clause (a) deals with other type of alienations, viz., mortgage, charge, sale, gift and exchange. Any of these alienations cannot be made except with the prior permission of the Court. Sub-clause (b) relates to leases. The natural guardian can lease out minor's property for a period of but in no case lease can extend to more than one year beyond the date on which the minor will attain majority. Clause (4) contains the guidelines for the court's permission. It lays down that the court shall grant permission to the guardian for alienating minor's property only in case of necessity or for an evident advantage to the minor. Clause (5) relates to the procedure for obtaining court's permission for alienation of minor's property. This clause lays down that the provisions contained in the Guardians and Wards Act in this regard would be applicable for obtaining prior permission of the court for alienating minor's property under clause (2).
13.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. Sub-section (4) makes it evidently GP 1/21 Priyanka Tanwar Vs. State Pages 5/9 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". Once the court inquires and hold that a particular transaction is for necessity or evident advantage to the minor or his property, the matter ends there. Whenever alienation of the property is made for providing maintenance to the minor, to members of his family or for providing education to the minor, the alienation is for necessity.
14. It is also well settled that before passing any order, Court should be satisfied that it is for the welfare of the minor child as the welfare is a paramount consideration at the time of granting any permission.
15. The petitioner namely Ms. Priyanka Tanwar has filed the present petition seeking appointment of petitioner as guardian of the minor child namely Rishi Tanwar s/o Late Sh. Jatin Tanwar as well as guardian of the property of the minor child's share and it is prayed that the petitioner may be permitted to sell the minor's share in the said property and also be permitted to sign on behalf of the minor to sell, mortgage, relinquish the share of the minor for the welfare of the minor. The petitioner Ms. Priyanka Tanwar was the wife of Late Sh. Jatin Tanwar who was the owner of the property bearing WZ-1656B, Nangal Raya, South West Delhi, New Delhi-110046 and the petitioner wants to sell the property for upbringing of her minor child and for his welfare after the death of her husband Late Sh. Jatin Tanwar as the petitioner is stated to be the single mother who has not remarried and is unemployed.
16.It is submitted by Ld counsel for the petitioner that the property in GP 1/21 Priyanka Tanwar Vs. State Pages 6/9 question is in the name of the late father of the minor Rishi Tanwar and the said property has devolved by way of law of succession upon his first class legal heirs i.e. petitioner Ms. Priyanka Tanwar and his son Master Rishi Tanwar and there is no other legal heir of deceased Late Sh. Jatin Tanwar and the copy of surviving member certificate issued by the office of District Magistrate, Delhi Cantonment, New Delhi District is annexed with the present petition according to which the petitioner Priyanka Tanwar and her son Rishi Tanwar are the only surviving legal heirs of Late Sh. Jatin Tanwar.
17.The petitioner Priyanka Tanwar has examined four witnesses including herself as PW4 and she has relied upon the surviving member certificate dated 06.11.2020 Ex.PW4/A issued from the office of District Magistrate, Delhi Cantonment, New Delhi District and she stated before the Court that there is no other legal heir of her husband Late Sh. Jatin Tanwar. The petitioner/PW4 stated on oath that she is single mother and she has not remarried and she is not employed and she is facing difficulties in maintaining herself and her child Rishi Tanwar and due to that she has applied to be appointed as guardian of the share of her son Rishi Tanwar in the property in question vide instant petition so that she may maintain and bring up her child properly. She stated that she undertakes to use the sale proceeds of the property in question for the benefit of her child Rishi Tanwar.
18.PW1 Sh. Himanshu Goyal and PW2 Sh. Nemi Kumar Goyal are stated to be the witnesses to the petition.
19.PW3 Sh. Harish Kumar from the office of Sub-Registrar-IX, Kapashera, New Delhi brought the record of sale deed of the property in question bearing no. WZ-1656B, Nangal Raya, New Delhi-110046 and he stated GP 1/21 Priyanka Tanwar Vs. State Pages 7/9 that the aforesaid sale deed of the property was registered in the name of Late Sh. Jatin Tanwar and the registration number of the said sale deed is 710, Volume No. 1944 dated 16.07.2002 and it matches the original record of the said sale deed brought by him in the Court.
20.In the instant case, the minor child is in permanent care and custody of his mother/petitioner as natural guardian. It is worthwhile to mention here that minor Master Rishi Tanwar is having the share in the property in question being the son/LRs of Late Sh. Jatin Tanwar who was the owner of the property in question. There cannot be any other better person for the minor child other than his own natural guardian/his mother for taking care of his share/interest in the property in question.
21.Considering the facts and circumstances and the testimony of PW4/petitioner, I am of the opinion that the petitioner has made out a case of necessity in terms of section 8(4) of Hindu Minority and Guardianship Act, 1956 as the petitioner is stated to be a single mother who has not remarried and is unemployed and the petitioner is seeking the permission to sell the share of minor in the abovesaid property for upbringing, education and betterment of minor child Rishi Tanwar. Hence, in the interest of justice, the petitioner Ms. Priyanka Tanwar is hereby appointed as the guardian of the share of the minor in the property in question and she is also allowed to sell the share of the minor Master Rishi Tanwar in the abovesaid property in question i.e. WZ- 1656B, Nangal Raya, South West Delhi, New Delhi-110046 and she would be at liberty to execute the documents on behalf of the said minor regarding the said property.
22.The petition is allowed with the directions that the sale consideration amount of the share of the minor in the abovesaid property would not be GP 1/21 Priyanka Tanwar Vs. State Pages 8/9 less than the circle rate of the property or the market value of the property whichever is higher. It is further directed that from the amount received from the total sale proceeds of the abovesaid property in question, share of minor i.e. 50% shall be deposited in Fixed Deposit scheme with the Nationalized Bank or Post Office till he attains the age of majority. However, the petitioner Ms. Priyanka Tanwar being the natural guardian and the mother of the minor may withdraw the interest accrued on the said Fixed Deposit amount for the welfare/upbringing and education of her minor son.
23.It is, however, clarified that nothing stated herein above shall be construed as an expression of opinion in respect of title of the deceased Late Sh. Jatin Tanwar over the property in question.
24.Necessary certificate be issued in favour of the petitioner Ms. Priyanka Tanwar on furnishing the necessary surety/administrative bond and undertakings to the satisfaction of this Court. With the above-said observations, the petition stands disposed of.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON THIS 19th DAY OF JULY 2022.
(Manish Khurana)
Additional District Judge-03
Patiala House Courts, New Delhi
19.07.2022
GP 1/21 Priyanka Tanwar Vs. State Pages 9/9