Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 9, Cited by 0]

Delhi District Court

Bhawna vs The State on 10 April, 2013

                               IN THE COURT OF SH. SUNIL RANA
        ADDITIONAL DISTRICT JUDGE­II: ROHINI COURTS: DELHI

GP­49/11
Unique Code No. 02404C0277282011    

       1. Bhawna  
          wd/o Late Manoj Kumar
          R/o Village Rani Khera,
          Delhi 
       2. Master Harsh & 
       3. Master Vansh 
          Both sons of Late Manoj Kumar
          Through their mother Smt. Bhawna                                                           .......Petitioners

                      Vs.

           The State                                                                                 .......Respondent

Date of Institution                                                                                  :  30.09.11
Date on which the case  was reserved for order                                                       : 10.04.13   
Date of Decision                                                                                     : 10.04.13

JUDGMENT

1. By this order I shall dispose of the present application u/s 8(2) of Hindu Minority & Guardianship Act, 1956 for permission to transfer minor's property.

2. It has been stated that petitioner no.1 is the mother of petitioners GP No. 49/11 1/16 no.2 & 3, namely, Harsh and Vansh and their father late Manoj Kumar, who died on 18.10.10 was having 1/32 share out of land comprising khasra no. 2/23(2­13), 5/10 (2­02), 11(4­16), 20(4­16),14/3(4­16), 8/2(4­05), 13/1(1­0), 27/18/2(2­00), 43/16/2(3­0), 17/2(3­00) situated in the revenue estate of village Rani Khera, Delhi and now petitioner no.1 alongwith the minor sons, petitioners no.2 & 3 is the successor in interest and the abovesaid land is in the possession of the petitioners as owner/bhumidar.

3. It has been stated that other relatives of the minors are :­

a) Smt. Satwati wd/o Late Shri Brahm Parkash R/o Village & PO Rani Khera, Delhi, grandmother of the minors.

b) Sh. Satbir Singh Vashisth s/o Sh. Tarachand R/o Village Rani Khera, Delhi, the real brother of the grandfather of the minors and uncle of late Sh. Manoj Kumar.

4. It has been stated that their share in the aforesaid agricultural land is just 1 bigha of the land and source of income is not sufficient to support the expenses of minors and it will be better option to sell the same for the welfare of the minors as the half share of the aforementioned property has already been transferred by the other co­sharers and the GP No. 49/11 2/16 remaining part has become highly uneconomic and remaining co­sharers have decided to transfer their share and entered into an agreement to sell dated 27.08.11 as the said purchaser has agreed to pay the applicant/petitioner no.1 @ Rs.1,30,00,000/­ per acre and the share of minors comes to Rs.25,72,917/­ and petitioner no.1 will utilize the sale proceeds for the welfare of the minors.

5. In the instant case, petitioner has subsequently moved an application u/o 6 R 17 r/w S. 151 CPC for the amendment of the petition as inadvertently khasra no. 27/18/2 was mentioned in place of khasra no. 27/18/1 and one khasra number 14/8/1 was not included in the earlier petition and the application was allowed vide order dated 30.07.12.

6. 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 and citation was also published in the newspaper "Virat Vaibhav" dated 02.10.12, for information to the general public.

GP No. 49/11 3/16

7. Valuation report was filed by SDM concerned and the value of 1/32 share out of land comprised in khasra no. 2/23 (2­13), 5/10 (2­02), 11 (4­16), 20 (4­16), 14/3 (4­16), 8/2 (4­05), 13/1 (1­0), 27/18/1 (2­00), 43/16/2 (3­0), 17/2 (3­00), was assessed to Rs.11,04,160/­.

8. Petitioner no.1 was appointed as guardian ad­litem of minor petitioners no.2 & 3, being their mother and natural guardian vide order dated 30.01.13.

9. In order to prove the case, petitioner no.1 had examined herself as PW­1 and deposed that she is the widow of Late Sh. Manoj Kumar who was co­bhumidar of land bearing khasra no. 2/23 (2­13), 5/10 (2­02), 11 (4­

16), 20 (4­16), 14/3 (4­16), 8/2 (4­05), 13/1 (1­0), 27/18/1 (2­0), 43/16/2 (3­

0), 17/2 (3­0), total area measuring 32 bighas and 8 biswas and the share of Sh. Manoj Kumar was to the extent of 1/32 out of the total abovesaid land in the revenue estate of village Rani Khera, Delhi and copy of the khatoni is Ex.PW­1/A. PW­1 has further deposed that her husband Manoj Kumar died intestate on 18.10.10 and his death certificate is Ex.PW­1/B GP No. 49/11 4/16 and has left behind, petitioner no.1 (widow), petitioner no.2 & 3 (minor sons), namely, Master Harsh and Master Vansh and Smt. Satyavati (mother), copies of birth certificates of minors, namely, Master Harsh and Master Vansh, are Ex.PW­1/C and Ex.PW­1/D and her identity/voter card is Ex.PW­1/E (OSR).

10. PW­1 has further deposed that she has entered into an agreement to sell to sell the share of the minors in the land as majority of other co­ bhumidars have already sold their share and share of minors is now uneconomic and that is why there is need to dispose of the share and there is also the legal necessity to meet the financial requirements of minors.

11. On 30.07.12 additional examination of PW­1 was conducted wherein she deposed that Late Sh. Manoj Kumar who was co­bhumidar of land measuring 32 bighas and 19 biswas in respect of land bearing khasra no. 2/23 (2­13), 5/10 (2­02), 11 (4­16), 20 (4­16), 14/3 (4­16), 8/2 (4­05), 13/1 (1­0), 27/18/1 (2­0), 43/16/2 (3­0), 17/2 (3­0), and that of Khasra no. 14/8/1 (0­11) and khatoni is Ex.PW­1/F and share of late Manoj Kumar was GP No. 49/11 5/16 to the extent of 1/32 of the total land in the revenue estate of village Rani Khera, Delhi. Thereafter, PE was closed.

12. I have heard the arguments advanced on behalf of the parties and perused the record carefully.

13. 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  

                       property of the minor, or

                       (b)         lease   any   part   of   such   property   for   a   term  




GP No. 49/11                                                                                                           6/16
                        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..."

14. Section 8 of Hindu Law of Minority and Guardianship Act' 1956 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 GP No. 49/11 7/16 the person of the minor, the section is not explicit.

15. The six clauses of the 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. 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 GP No. 49/11 8/16 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).

16. 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.

17. 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 GP No. 49/11 9/16 without legal necessity is not void and voidable.

18. 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.

19. 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 GP No. 49/11 10/16 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, deceased Manoj Kumar is having only the 1/32 unspecified & undivided share in the agricultural land and the permission if can be granted, can only be confined to the share belonging to the minors.

20. 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 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 GP No. 49/11 11/16 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.

21. 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 Manoj Kumar, are having only to the extent of 1/32 unspecified & undivided share in the agricultural land in Khata Khatoni Ex.PW­1/F and Ex.PW­1/A which is a joint family property of several persons and not an individual property of petitioners. It is well settled that provision of permission to transfer the share of minors is not at all attracted to the joint interest of the minor in the joint family property.

22. In the present matter following points are undisputed:

(i) property is in joint name and deceased Manoj Kumar is having only 1/32 share in the agricultural land alongwith other family members.
(ii) Petitioner no.1 being mother is the natural guardian of the minors, petitioners no. 2 & 3.
GP No. 49/11 12/16
(iii) share of the minors in the property/land is not partitioned by metes and bounds.

23. 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.

24. 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.

25. Essence of co­parcenary property under the Mitakshara law is the GP No. 49/11 13/16 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 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.

26. Considering the facts and circumstances of the case and the discussion made above, provision of law and precedent on this issue, case of the petitioner no.1 is that majority of the co­sharer has already sold their share in the property in question and the remaining shares have now become uneconomic and is seeking permission to transfer the share of the GP No. 49/11 14/16 minors and has already entered into an agreement to sell. However, petitioner no.1 has not been able to convince the court as to what are the legal necessity for the transfer of the undivided & unspecified share of minors in the joint family property.

27. In the instant case, admittedly the property in question is the joint family property and the petitioner and minors are having only unspecified & undivided 1/32 share in the agricultural land in the revenue estate of village Rani Khera, Delhi, belonging to several persons. Hence, permission to transfer the unspecified & undivided share of the minors in the abovesaid agricultural land cannot be granted and is hereby declined.

28. However, keeping in view of the facts and circumstances of the matter and in view of the no objection given by the respondents, petitioner no.1 being the mother and natural guardian of the minors is hereby appointed as a guardian of person & property of the petitioners no.2 & 3 minors, namely, Master Harsh and Master Vansh. With the abovesaid observation, petition stands disposed of accordingly. GP No. 49/11 15/16

29. Necessary certificate be issued to the petitioner no.1 after furnishing the bond and undertaking to the satisfaction of the court as per law.

30. File be consigned to record Room. 

Announced in the Open Court                                                             (SUNIL RANA)
On this  10.04.13                                                               ADJ­II : ROHINI : DELHI




GP No. 49/11                                                                                                           16/16