Delhi District Court
Smt. Suman vs The State on 23 March, 2018
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
DISTRICT JUDGE8 (CENTRAL), TIS HAZARI, DELHI.
Guardianship Petition No. 30186/16
Unique ID No.: DLCT010152442016.
In the matter of:
Smt. Suman, aged 50 years,
W/o Late Surinder Kumar,
R/o DB95B, LIG Flat, Hari Nagar,
New Delhi110064. ............Petitioner
VERSUS
1. The State
2. Ms. Neelakshi Tuli,
D/o Late Surinder Kumar,
R/o DB95B, LIG Flat, Hari Nagar,
New Delhi110064.
3. Ms. Yukti Tuli,
D/o Late Surinder Kumar,
R/o DB95B, LIG Flat, Hari Nagar,
New Delhi110064. ...........Respondents
Date of institution : 02.11.2016
Date of decision : 23.3.2018
Contd...
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For petitioner : Mr. Gurudev Singh Yadav,
Advocate.
For Respondents : None.
ORDER :
This is a petition under sections 8 and 10 of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) made by Smt. Suman, mother of Master Chitraksh (hereinafter referred to as "the minor") for grant of permission to sell his 1/4th undivided share in immovable property bearing no. B1915, Shashtri Nagar, Delhi 110052 (hereinafter referred to as "the subject property") along with proportionate undivided share in the land of the subject property.
2. It is stated in the application that the petitioner is the mother and natural guardian of the minor, who are Hindu by religion; that by virtue of GPA, agreement to sell, affidavit and receipt dated 10.9.1993 the subject property measuring 50 sq. yds. was absolutely owned by late Surender Kumar; that the said Surender Kumar passed away intestate on 10.11.2009, and is survived by his wife Suman, the petition, two daughters, namely, Neelakshi Tuli and Yukti Tuli and the minor, namely, Master Chitraksh Tuli, who is 12 years old, who are the only classI legal heirs of late Surender Kumar each of whom have 1/4 share in the subject property; that the minor has 1/4 undivided Contd...
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share in the subject property consisting of ground floor, first floor and 1/2 second floor with roof rights; that keeping in view legal and financial needs and requirements of the minor and daughters, the petitioner has decided to sell the undivided share of the minor in the subject property as the petitioner requires fund for education and maintenance of the minor and daughters; that the petitioner has no source of livelihood for providing meal, educational funds and for better maintenance of the minor, and she wants to purchase another property in other locality, therefore, she has decided to sell out the subject property; that the petitioner has no personal interest in selling out the share of the minor and the sole aim of the petitioner is to provide the minor best education and better maintenance so that he can settle his life in better manner; that the petitioner has no interest adverse to the minor; that in case the application is allowed, the petitioner undertakes to invest the sale proceed to be received by selling the share of the minor in fixed deposit or in any other saving scheme as per the direction of this court; that the present petition has not been filed in collusion with any third party. It is further stated in the petition that permission may be granted to the petitioner to sell out the share of the minor in the subject property.
3. Upon notice of the petition to the respondents, a brief reply, not opposing the petition has been filed on behalf of the State.
Contd...
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Pursuant to the notice of the petition, the respondents no. 2 and 3 appeared in person and gave their no objection to the petition.
4. In support of the petition, the petitioner got examined herself as PW1 and during her examination in chief tendered her affidavit Ex. PW1/A alongwith documents Ex. PW1/1 to Ex. PW1/6, and thereafter evidence on her behalf was closed.
5. I have heard counsel for the petitioner and have gone through the material on record carefully.
6. Having drawn my attention on the contents of the petition, affidavit Ex. PW1/A, filed by the petitioner in evidence and documents Ex. PW1/1 to Ex. PW1/6 it is submitted by counsel for the petitioner that the petitioner and her minor son Master Chitraksh are Hindu by religion, and after the death of the husband of the petitioner Master Chitraksh has 1/4th share in the subject property admeasuring about 50 sq. yds. It is further submitted by counsel for the petitioner that to meet the basic needs of the minor and for his better future the petitioner wants to sell out the subject property and wants to purchase another property in other locality. It is further submitted by counsel for the petitioner that the petition has been made for bona fide reason and in the best interest of the minor, therefore, the petition may be allowed and permission may be granted to the petitioner to sell out 1/4th undivided share of the minor in the subject property.
Contd...
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7. I have given the thoughtful consideration to the submissions made on behalf of the petitioner.
8. Section 8 of the Hindu Minority and Guardianship Act, 1956, which enumerates the powers of natural guardian and limitation thereon, reads as follows:
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 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 subsection (2) except in 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 the 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 subsections (2), (3) and (4) of section 31 of that Act; and Contd...
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(c) an appeal 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.
(6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians 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.
9. In the present case a perusal of documents Ex. PW1/2 (copy of General Power of Attorney dated 10.9.1993), Ex. PW/2 (copy of Agreement for Sale dated 10.9.1993), Ex. PW1/4 (copy of Affidavit dated 10.9.1993) and Ex. PW1/5 (copy of Receipt dated 10.9.1993) reveals that no conveyance deed in respect of the subject property was ever executed in favour of late Surender Kumar. As per documents Ex. PW1/2 to Ex. PW1/4 on 10.9.1993 agreement for sale and general power of attorney were executed in favour of late Surender Singh by one Amar Singh and on the same day he swore an affidavit and also issued receipt of Rs. 48,000/.
10. As per the law laid down by the Hon'ble Supreme Court in Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656 immovable property can be transferred/conveyed only by deed of conveyance (sale deed) duly stamped and registered as required by law, and no immovable property of value more than one hundred Contd...
G.P. No. 30186/16 Page no. 6 of 7 -7- rupees can be transferred by way of agreement for sale, power of attorney etc.
11. Since in view of the provisions of section 54 of the Transfer of Property Act, 1882 and section 17 of the Registration Act, 1908 and the law laid down by the Hon'ble Supreme Court in Suraj Lamp & Industries (P) Ltd.'s case (supra) there may be serious doubt regarding the title of the minor in the subject property, therefore, this court is of the considered view that any sale of the subject property under the order of this court may expose the minor to further litigation which shall not be in his welfare, interest or benefit. Since the application is not for evident advantage to the minor and may be prejudicial to his interest and well being, therefore, no permission may be granted to the petitioner to sell out the alleged undivided share of the minor in the subject property.
12. In view of my discussion the petition is dismissed. File be sent to records.
Pronounced in the open court (Manoj Kumar) on 23.3.2018. Additional District Judge8 Central:Tis Hazari Courts: Delhi. Digitally signed by MANOJ MANOJ KUMAR Date: KUMAR 2018.03.24 12:47:52 +0530 G.P. No. 30186/16 Page no. 7 of 7