Delhi District Court
This Petition Under Sections 8 & 11 Of The ... vs Unknown on 14 May, 2010
IN THE COURT OF SHRI G.P. MITTAL:
DISTRICT JUDGE-I: DELHI.
Guardianship Case No.08/2010
Unique ID No. 0240IC0005822010
Shri Mohit Bawa (Minor)
S/o Sh. Satish Chand
Through his next friend
and mother natural guardian
R/o 4658, 21/16, Darya Ganj,
New Delhi. ...... Petitio ner
V ersus
State (Govt. of NCT of Delhi) ... Respondent
Date of institution of petition :23.11.09
Date on which judgment/order was reserved :12.05.10
Date of pronouncement of judgment :14.05.10
JUDGMENT
This petition under Sections 8 & 11 of the Hindu Minority & Guardianship Act, 1956 has been filed by Petitioner Mohit Bawa (minor) through his mother & natural guardian Smt Sunita Bawa, for granting her permission to dispose off his share in the property bearing No.4658, 21/16, Darya Ganj, New Delhi.
2- Briefly stated, the facts of the petition are that Shri Keshav Bawa was the owner of property bearing No.4658, 21/16, Darya Ganj, New Delhi. Shri Keshav Bawa died leaving behind Shri Roop Chander and Smt. Shakuntla Devi as his only heirs and legal representatives. Shri Roop Chand inherited 70% share and Smt. Shakuntla Devi inherited 30% share in the said properlty. Shri Roop Chand died leaving behind Shri Avinash Chander, Shri Suresh Chand (sic. Satish Chand) & Shri Dinesh Chander as his only legal heirs and representatives. Smt. GP-08/10 (Page 1 of 6) Shakuntla Devi also died leaving behind Shri Lalit Mohan Rai and Shri Chander Mohan Rai as her only legal heirs and representatives. Shri Satish Chand died leaving behind Smt. Sunita Bawa (widow), Smt. Sarashty Bawa (daughter-22 years) and Master Mohit Bawa (born on 29.05.1993) as his only heirs and representatives. In RFA No.485/1993 in the Hon'ble High Court of Delhi, titled as Avinash Chander & Ors. v. Smt. Shakuntla Devi (deceased) through LRs. which was filed against the judgment and decree dated 31.03.1993, passed by the Addl. District Judge, Delhi in suit No.215/1991 a compromise was arrived at between the parties whereby Shri Satish Chand (through his legal heirs and representatives) got 56 yards i.e. 23.33% of the share in the aforesaid property. Shri Satish Chand through his legal heirs and representatives is in occupation of 108 sq. yards unit at the first floor. The other co- sharers Shri Avinash Chander has presenetly occupied 132 Sq. Yards portion at the first floor; Shri Dinesh Chander is in occupation of 108 Sq. Yards at the ground floor and Shri Lalit Mohan Rai & Col. (Retd.) Chander Mohan are presently in possession of 132 sq. yards portion at the ground floor of the said property and they shall continue to remain in possession and occupation of the said property till such time, the said property is sold jointly by all the parties. All the parties shall jointly sell the said property to a third party as agreed between them and the amount so received from the sale proceed shall be divided into five shares out of which Shri Satish Chand through his legal heirs and representatives shall get 23.33% of the sale amount.
3- It is further stated in the petition that all the parties have entered into an agreement to sell with M/s. Ashwarya Construction Company through its partner Shri Pradeep Soni & Smt. Suman, 2/18, Ansari Road, Darya Ganj, New Delhi for a total sale consideration of Rs.65 Lacs. It is also stated in the GP-08/10 (Page 2 of 6) petition that after the death of Shri Satish Chand, the family has no source of income and the share of the minor shall be kept in a nationalized bank as FDR and the interest thereof shall be utilized for his education, who is a student of class 11th at present. Hence the prayer.
4- Notice of the petition was issued to the State through Collector and a copy was affixed on the notice board of the court house. Citation was also published in the Newspaper 'Dainik Jagaran' dated 14.01.2010 for information of general public. No one came forward from the general public to file any objection to the petition. Near relations S/Shri Avinash Chander, Dinesh Chander, Lalit Mohan Rai, Capt.(Retd.) Chander Mohan (all uncles of the minor) had put in appearance through their Counsel Shri Sumit Ahuja and filed `no objections' on their behalf stating therein that they have no objection if the prayer of the petitioner is allowed. Near relation Srashty Bawa (sister of the minor) also put in appear through her counsel Shri Vishnu Sharma and she also filed no objection to allow the prayer of the petitioner.
5- The collector vide his detailed report has assessed the value of the property in question at Rs.54,60,000/-. 6- Smt. Sunita Bawa, has tendered her evidence vide affidavit Ex.PW1/A wherein she has reaffirmed the facts mentioned in the petition. She placed and proved on record copy of agreement-cum-receipt of the property in question as Ex.PW1/1; birth certificate of her minor son as Ex.PW1/2 (showing his date of birth as 29.05.1993); and death certificate of shri Satish Chand as Ex.PW1/3 (showing his date of death as 13.04.2009). During her further statement, the petitioner has tendered in evidence certified copy of the application under Order 41 Rule 32 & 33 CPC moved before the Hon'ble High Court and certified copy of the order/ judgment dated 22.04.2009 alongwith decree passed by the Hon'ble High Court GP-08/10 (Page 3 of 6) in CM No.7612/2009 in RFA No.485/1993 as Ex.PW1/4 and Ex.PW1/5.
7- I have heard the learned Counsel for the Petitioner and have gone through the record.
8- In view of the averments made in the petition and the testimony of the Petitioner, it stands proved that the Smt. Sunita Bawa is the mother and natural guardian of the minor. Shri Satish Chand, father of the minor had died on 13.04.2009. S/Shri Avinash Chander, Dinesh Chander, Lalit Mohan Rai, Capt.(Retd.) Chander Mohan (all uncles of the minor) and Ms. Srashty Bawa (sister of the minor) have given their `no objections' to allow the prayer of the petitioner. The minor is under the care and custody of Smt. Sunita Bawa. It can not be expected that Smt. Sunita Bawa has any interest adverse to that of the minor, being his natural mother. However, this court can not be oblivious of the provisions of Section 8 of The Hindu Minority and Guardianship Act, 1956 which provides that the natural guardian of a Hindu minor has limited and qualified powers viz. he/she can alienate minor's properties only for "legal necessity" and benefit of estate.
9. As per averments made in the petition and statement of PW-1 Sunita Bawa, it emerges that minor Master Mohit Bawa was born on 29.05.1993. Document Ex.PW1/1 shows that all the co-sharers of the property i.e. S/Shri Avinash Chander, Dinesh Chander, Lalit Mohan Rai, Capt.(Retd.) Chander Mohan (all uncles of the minor) have entered into an agreement with M/s. Ashwarya Construction Company through its partners Shri PradeepSoni and Smt. Suman, to sell the property bearing No.4658, 21/16, Darya Ganj, New Delhi for a consideration of Rs.65,00,000/- and they have already received a sum of Rs.10,00,000/- as an earnest money. There is statement of petitioner to the effect that after the death of Shri Satish Chand, the family has no source of income and the share of the minor GP-08/10 (Page 4 of 6) shall be kept in a nationalized bank as FDR and the interest thereof shall be utilized for the education of the minor who is a student of 11th class. To meet the daily need expenses and for the bringing up and career of her minor son, the petitioner has decided to sell out their share in the above mentioned property. The petitioner and her family members have no other option but to sell out the property as the property is a joint built up property and the other co-sharers have decided to sell out their respective shares in the said property. This is so apparent from the documents Ex.PW1/4 & Ex.PW1/5 because in terms of compromise arrived at between the parties before the Hon'ble High Court, it was agreed to by all the parties that the parties shall jointly sell the said property to a third party and shall request the buyer to pay the sale proceeds of the said property to the parties separately in proportion/ ration of their respective share in the said property failing which the sale amount received from the sale proceeds thereof shall be divided into 5 shares in the ration of 23.33% each to Avinash Chander & Satish Chand (through his legal heirs and representatives); 23.34% to Dinesh Chander; 20% to Lalit Mohan Rai and 10% to Col.(Retd.) Chander Mohan. Therefore, I consider that Petitioner who has no interest adverse to that of the minor, is constrained to sell the 1/3rd undivided share of her minor son Master Mohit Bawa, out of their total share of 23.33% in property in question for legal necessity viz. proper upbringing and education of the minor as also for the benefit to his estate as the same cannot be used effectively by him who is having meagre undivided share in the property.
10- The petitioner and the co-sharers of the property have already entered into an agreement to sell the whole of the aforesaid property for a consideration of Rs.65,00,000/-, which includes 1/3rd share of the minor out of 23.33% shares of minor's mother & sister of the minor in whole of the property.
GP-08/10 (Page 5 of 6) This amount of Rs.65,00,000/- is on the higher side than that of valuation assessed by the Collector viz at Rs.54,60,000/-. 11- In view of the above discussion, I allow the petition and the petitioner Mohit Bawa, through his mother/ natural guardian Smt. Sunita Bawa is permitted to sell his 1/3rd of 23.33% undivided share in the property bearing No.4658, 21/16, Darya Ganj, New Delhi subject to the conditions that:
i) his share in the property in question shall not be sold less than for a consideration of less than Rs.5,05,500/-
approximately (as market value of the entire property is Rs.65 Lakhs as per document Ex.PW1/1), however as per rules & regulations of the Civic Authorities; and
ii) she will deposit the share of the minor in the name of the minor in the fixed deposit/ securities with any nationalized bank or post office till the period minor attains his age of majority. However, Smt. Sunita Baba is permitted to withdraw the amount of interest to be accrued on the said FDR/ securities, which she will utilize for the upbringing, education and welfare of the minor.
Necessary certificate be issued in favour of the Petitioner on furnishing necessary bond/ undertaking with one surety. File be consigned to record room.
Announced in open (G.P. MITTAL) court on 14.05.2009 DISTRICT JUDGE-I: DELHI. GP-08/10 (Page 6 of 6)