Delhi District Court
Sushila vs The State on 7 May, 2012
IN THE COURT OF SH. SUNIL RANA
ADDITIONAL DISTRICT JUDGEII: ROHINI COURTS: DELHI
GP57/11
Unique Code No. 02404C0312812011
Sushila
w/o Late Sh. Anil Kumar
R/o 27, Sadha Wali Gali,
Village Budhanpur Majra Dabas,
Delhi .......Petitioner
Vs.
1. The State
2. Ms. Shikha d/o Late Sh. Anil Kumar
R/o 27, Sadha Wali Gali,
Village Budhanpur Majra Dabas,
Delhi .......Respondents
Date of Institution : 08.11.11
Date on which the case was reserved for order : 07.05.12
Date of Decision : 07.05.12
JUDGMENT
1. By this order I shall dispose of the present application/petition for appointment of guardian of person and property of minor Amarjeet Singh filed by mother, Ms.Sushila (hereinafter referred to as petitioner) u/s 10 r/w GP No. 57/11 1/17 Section 29 of Guardian & Wards Act.
2. It has been stated that petitioner is the mother and natural guardian of minor, Amarjeet Singh and she be appointed as guardian of person and property of minor Master Amarjeet Singh. Permission has also been sought to sell the unspecified & undivided 1/16th share of the minor in the agricultural land in Khata Khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81, in which minor is also one of the cosharer and present value of which is Rs.80,24,468/.
3. Notice of this petition was issued to the State through Collector and to the legal heirs of deceased Anil Kumar and copy was also got affixed on the notice board of the Court House on 17.12.11 and Citation was also published in the newspaper "Virat Vaibhav" dated 16.12.11, for information to general public but none had come forward to file any objection in this regard.
4. Valuation report has been filed by SDM Saraswati Vihar whereby GP No. 57/11 2/17 the value of premises/khasra no. 80/69 situated in the revenue estate of village Budhanpur Majra Dabas, Delhi81 has been assessed to Rs.32,02,064/.
5. It is pertinent to mention herein that during the course of proceedings, petitioner had given statement that present petition was filed for the appointment of guardian of minor son, namely, Amarjeet Singh and as per averments made in the petition, permission was also sought to sell the unspecified & undivided share of minor in the agricultural land in Khata Khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81, to which minor is also one of the cosharer but petitioner do not want to press said prayer and stated that her petition may kindly be treated only for the purpose of appointment of guardian of person & property of the minor, namely, Master Amarjeet Singh. Separate statement of petitioner duly identified by her counsel was also recorded in this regard on 28.02.2012.
6. In the instant case, application u/O 1 R 10 CPC to implead GP No. 57/11 3/17 Shikha, being the sister of minor and daughter of petitioner was allowed vide order dated 24.03.12 and amended memo of parties was taken on record and after taking statement and no objection of respondent no.2 that she has no objection if the petitioner being the mother of minor is appointed as guardian of person & property of minor Amarjeet Singh. Separate statement of respondents no.2 was also recorded in this regard.
7. In order to prove her case, petitioner had appeared in the witness box and tendered her affidavit as Ex. PW1/A and deposed that copy of her ration card is Ex.PW1/1 and voter I/card is Ex.PW1/2 and copy of mark sheet of minor Amarjeet Singh showing his date of birth as 07.10.1995 is Ex.PW1/3 and copy of khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81 is Ex.PW1/4 and death certificate of Late Sh. Anil Kumar showing his date of death as 08.10.10 is Ex.PW1/5.
8. I have heard the arguments advanced on behalf of the petitioner and perused the record carefully.
GP No. 57/11 4/17
9. Before deciding this petition, I have also 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
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.
GP No. 57/11 5/17
(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..."
10. Section 8 of Hindu Law of Minority and Guardianship Act' 1956 deals with the powers of natural guardian over the person and 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.
11. The six clauses of the section deal with the various aspects of the GP No. 57/11 6/17 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. Subclause (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 GP No. 57/11 7/17 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).
12. 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. No one would doubt that in the nature of things, no person can be a substitute for parents. when someone else is appointed as a guardian, the endeavor, therefore, is to see that guardian comes very near to parents.
GP No. 57/11 8/17
13. Like the karta of Hindu joint family, the guardian of the property of the minor has limited powers. In a series of cases, the Indian High courts have held that the natural guardian of a Hindu minor has limited and qualified powers. He can alienate minor's properties only for legal necessity and benefit of estate. The burden of proof of legal necessity is on the alienee and alienation without legal necessity is not void and voidable.
14. 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" GP No. 57/11 9/17
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. Legal necessity means pressure upon the estate which in law may be regarded as a serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bonafide enquiries about the existence of the necessity and that he did all that was necessary to satisfy himself/herself as to the existence of necessity. 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 courts have held that alienation is for necessity.
15. It is also well settled that before passing any order, Court should GP No. 57/11 10/17 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 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, the minor is having only the 1/16th unspecified & undivided share in the agricultural land in Khata Khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81 and the permission if can be granted, can only be confined to the share belonging to the minor.
16. 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. The first restriction is that guardian, in no case, can GP No. 57/11 11/17 bind the minor by a personal covenant. The second restriction is that he shall not mortgage or create a charge or transfer by sale, gift, exchange or otherwise or even lease out the property for term exceeding five years or for term extending more than one year beyond the date on which the minor will attain the majority without the previous permission of the court.
17. 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 Sh.Anil Kumar, is having only the 1/16th unspecified & undivided share in the agricultural land in Khata Khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81. It appears that agricultural land in question is a joint family property of several persons and not an individual property of minor alone. It is the case of petitioner that minor is having only the 1/16th unspecified & undivided share. It is well settled that provision of permission is not at all attracted to the joint interest of the minor in the family property. GP No. 57/11 12/17
18. In the present matter following points are undisputed:
(i) property is in joint name and minor Amarjeet Singh is having only 1/16th share in the agricultural land alongwith other family members.
(ii) Petitioner being mother is the natural guardian of the minor.
(iii) property is not divided by metes and bounds and the minor is having only 1/16th unspecified & undivided share in the agricultural land in Khata Khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81.
19. 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 interest in the joint family property is, however, specifically excluded from that section.
20. Section 12 clearly lays down that guardian is not to be appointed for minor's undivided interest in joint family property. The interest of minor in the joint family property is thus kept outside the reach of these provisions GP No. 57/11 13/17 leaving it to the natural guardian to deal with it in accordance with Customary Hindu Law.
21. 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.
22. 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 GP No. 57/11 14/17 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 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.
23. Considering the facts and circumstances of the case and the discussion made above, provision of law and precedent on this issue, I am of the view that provision of Section 8(2) of Hindu Minority & Guardianship Act have no application to the instant case and permission cannot be granted to the petitioner to sell the unspecified & undivided 1/16th share of minor, Amarjeet Singh, in the agricultural land in Khata Khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81. It is pertinent to mention herein that as per the averment, it is in any case the joint family property and no GP No. 57/11 15/17 partition has been taken place and admittedly, it is not an independent property of minor as agricultural land is in the name of several persons and minor is having only unspecified & undivided 1/16th share. Considering the facts and circumstances of the case and in view of the statement given by the petitioner on 28.02.2012 to this effect that she is not praying for the permission to sell the share of the minors in the agricultural land in Khata Khatoni no. 80/69 of village Budhanpur Majra Dabas, Delhi81, permission to sell cannot be granted to the petitioner where the minor, Amarjeet Singh is admittedly having only the 1/16th unspecified & undivided share. Hence, this request of the petitioner is declined.
24. However, in view of the submissions made on behalf of petitioner and her testimony which has remained unchallenged and unrebutted and the no objection given by the respondent no. 2, present petition is allowed to the extent of appointment of petitioner as guardian of person & property of the minor, Amarjeet Singh. Accordingly, Smt. Sushila, being the mother GP No. 57/11 16/17 and natural guardian, is hereby appointed as guardian of person & property of minor Amarjeet Singh.
25. Necessary certificate be issued after furnishing the surety and undertaking to the satisfaction of the court as per law.
26. File be consigned to record Room.
Announced in the Open Court (SUNIL RANA)
On this 07.05.12 ADJII : ROHINI : DELHI
GP No. 57/11 17/17