Gujarat High Court
Kamlaben Wd/O Rameshbhai Jesingbhai ... vs Mukeshbhai Rameshbhai Bariya on 20 February, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/FA/3621/2022 ORDER DATED: 20/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3621 of 2022
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KAMLABEN WD/O RAMESHBHAI JESINGBHAI BARIYA
Versus
MUKESHBHAI RAMESHBHAI BARIYA
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Appearance:
MR IMTIYAZ I MANSURI(9159) for the Appellant(s) No. 1,2,3,4
M S BHADKI(8665) for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 20/02/2023
ORAL ORDER
1. By way of the present First Appeal, the appellants herein are aggrieved by the impugned judgment and order dated 09.03.2022 passed by the 6th Additional District Judge, Panchmahals at Godhra in Guardian Application No. 132 of 2019 passed under Section 7 and 29 of the Guardian and Wards Act, 1890, whereby, the District Judge rejected the Guardian Application No. 132 of 2019 and refused to grant the permission to sell the old tenure agricultural land of the joint ownership of the appellant and the respondents including the share of the minor appellant nos. 3 and 4, by which the appellants herein have filed the present Appeal under Section 47 of the Guardian and Wards Act, 1890.
2. Brief facts leading to the filing of the present First Page 1 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined Appeal read thus:
2.1. The appellants are the original applicants and the respondents are the original defendants in Guardian Application No. 132 of 2019. The appellants and the respondents are the legal heirs of Shri Rameshbhai Jaisingbhai Baria. The respondent nos. 1 to 3 are the major sons and the appellant no.2 is the major daughter of deceased Rameshbhai Jaisingbhai Baria. The appellant nos. 3 and 4 are minor daughters and the appellant no.1 is the wife of deceased Rameshbhai Jaisingbhai Baria. The appellant no.2 attained the age of majority, during the pendency of the said Guardian Application No. 132 of 2019 and therefore, by Exh.33, the case of the appellant no.2 came to be not pressed.
2.2. The land / Block No. 185, Revenue Survey No. 334 (Old Revenue Survey No. 187/Paiki/1) of Village: Tajpur Chipa, Tal.: Godhra, Di.st; Panchmahals, admeasuring 0-59-37 sq.mtrs.
is an old tenure agricultural land (for shot 'the suit land') of the ownership of deceased Rameshbhai Jaisingbhai Baria, who expired on 21.09.2013. By mutation Entry No. 1568 dated 16.12.2018, the names of the legal heirs of deceased Rameshbhai Jaisingbhai Baria i.e. the appellants and the respondents herein came to be mutated in the revenue records of the suit land.
2.3. After the death of Rameshbhai Jaisingbhai Baria, the appellant no.1 managed the responsibility of maintaining the Page 2 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined family and as the respondent nos. 1 to 3 grew up, they assisted the appellant no.1 in maintaining the family. The income from agricultural land being meager and is insufficient for maintaining the family. The appellant nos. 3 and 4 are also studying and the expenses for their studies were also difficult to be borne by the appellant no.1.
2.4. Under such circumstances, the appellants and the respondents decided to sell the aforesaid suit land. It is stated that the said suit land is an old tenure land and can also be used for Non-Agricultural purpose on payment of the premium.
2.5. The appellant nos. 2 to 4 are minor and are having their shares in the said land. For the aforesaid, the appellants preferred application being Guardian Application No. 132 of 2019 before the District Court and adduced on record the evidences.
3. The District Judge rejected the said application by judgment and order dated 09.03.2022, considering the following, which reads thus:
"(10) Considering the fact of the present case in view of the averments made by Ld.a dvocate of the applicant and aforesaid provisions laid down by the law, Late Rameshbhai Jesingbhai Bariya, original owner of the agricultural land mentioned in the present application, passed away at Village-
Tajpur Chhipa on 21/09/2013. After his death, vide Mutation Entry No.1568 by succession made in Revenue Record, applicants and Opponent Nos.1 to 3 of this case have been entered as legal heirs of Late Rameshbhai Jesingbhai Bariya, co- ownes and occupants of the land in question. Land of old tenure bearing R.S.No.334 of Revenue Khata No.158 and Old Survey Page 3 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined No.187 paiki 1 admeasuring Hec.0-59-37 Sq.Mtr. with Aakar of Rs.0-68 located at Village-Tajpur Chhipa, Taluka-Godhra, Dist.Panchmahal has been jointly owned and occupied by the parties, which is agricultural land and eligible to premium for Non-Agricultural purpose. When the deceased Rameshbhai was alive, he was regularly cultivating the said land and obtaining produce thereof to maintain his family. However, after his death, there is nobody in the family to cultivate the land in question to maintain them and the minors. During this hard time of increasing prices, it is very difficult to maintain the family and education of minors whereas the applicants do not have any movable or immovable properties to sale them to maintain their family. Hence, in the interest of the minors and their future prospects, the applicant has sought permission to sale share of the land admeasuring Hec.0-45 Guntha of the minors from the land of old tenure bearing R.S.No.334 of Revenue Khata No.158 and Old Survey No.187 paiki 1 admeasuring Hec.0-59-37 Sq.Mtr. with Aakar of Rs.0-68 located at Village-Tajpur Chhipa, Taluka- Godhra, Dist.Panchmahal and the co-occupants namely Mukeshbhai, Maheshbhai and Sanjaybhai Bariya have submitted pursis with consent to sale the said land. However, looking to the fact on record, the applicant has stated that the minors are studying, but he has not produced any documentary evidence thereof. Moreover, taking into consideration the Revenue record produced by the applicant, it appears that the land in question is eligible to premium for Non-Agricultural purpose i.e. New Tenure land and hence, the said land cannot be sold without permission of the Collector. Further, the applicants have not produced any such order granting permission to sale the land in question. Moreover, the applicant has not mentioned in his application or in the affidavit as to how and for what purpose the amount received after sale of the share of the land of the minors would be utilized or invested for their welfare. In addition, looking to the record, the applicant has stated that after death of Late Rameshbhai, his family cannot be maintained. However, co-occupants of the land in question namely Mukeshbhai Rameshbhai, Maheshbhai Rameshbhai and Sanjaybhai Rameshbhai, who have sought permission for the sale of land, are adults and sons of the applicant No.1. Thus, there is no reason to believe that they are not maintaining the family by doing any work. Thus, it does not seem fit and proper to grant permission sought for by the applicant in his application to sale the land in question in the welfare and interest of minors. Hence, taking into consideration all the aforesaid facts, the Page 4 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined applicant has sought permission to sale the land admeasuring Hec.0-45 Guntha from the land of old tenure bearing R.S.No.334 of Revenue Khata No.158 and Old Survey No.187 paiki 1 admeasuring Hec.0-59-37 Sq.Mtr. with Aakar of Rs.0-68 located at Village-Tajpur Chhipa, Taluka-Godhra, Dist.Panchmahal. However, as discussed above, as the land in question is eligible to premium for Non-Agricultural purpose i.e. New Tenure land, the said land cannot be sold without permission of the Collector. As the applicants have not produced any such permission order and they have not stated the fact as to how and for what purpose the amount received after sale of the share of the land of the minors would be utilized or invested for their welfare; and there is no reason to believe that co-occupants of the land in question namely Mukeshbhai Rameshbhai, Maheshbhai Rameshbhai and Sanjaybhai Rameshbhai, are adults and sons of the applicant No.1 and they are not maintaining the family by doing any work and the present application of the applicant is not admissible, I hold reply of Issue No.1 in negative and pass the final order below Issue No.2, which is as under:
ORDER Present application of the applicant is hereby rejected. Pronounced in Open Court today i.e. on March 9, 2022."
4. Heard Mr. Imtiyaz I. Mansuri, learned advocate appearing for the appellants.
5. Notice came to be issued by this Court on 03.01.2023, pursuant to which, respondents appeared in the matter.
6.1. Mr. Mansuri, learned advocate submitted that the appellant no.1 - mother is the natural guardian and Karta of the family. The appellants and the respondents are the legal heirs of deceased Rameshbhai Jaisingbhai Baria. The respondents and appellant no.2 have attained majority, however, the appellant -
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mother has to maintain the family, more particularly, the appellant nos. 3 and 4 are minor and is required to incur expenses for their study and other expenses of minor. The income accruing out of the agricultural land being a meager amount, is insufficient to maintain the family, and for the aforesaid reason, the Guardian Application No. 132 of 2019 came to be preferred before the District Court, seeking permission to sell the suit land.
6.2. It was submitted by Mr. Mansuri, learned advocate that the Court below erred in not considering the submissions made by the appellants. It was submitted that the District Court assumed that the said old tenure agricultural land is a new tenure land and on the same ground, erroneously rejected the appeal preferred by the appellant herein seeking permission to sell the suit land.
6.3. It was submitted by Mr. Mansuri, learned advocate that the said land is an old tenure land but the same can be converted to non-agricultural purpose on payment of premium.
6.4. On the aforesaid grounds, Mr. Mansuri, learned advocate submitted that the Appeal is required to be allowed and the order impugned is required to be quashed and set aside.
7. Heard Mr. M.S. Bhadki, learned advocate appeared for the respondents and reiterates the stand, which was taken Page 6 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined before the District Court that the appellants and respondents are the legal heirs of deceased Rameshbhai Jaisingbhai Baria and that there is no objection, if the aforesaid property being joint family property be permitted to sell including the share of minor appellants nos. 3 and 4 on any condition that may be deemed fit by this Court in the interest of justice.
8. Considering the submissions made by Mr. Mansuri, learned advocate appearing for the appellant, at this stage, it is apposite to refer to the oral judgment dated 29.11.2022 passed in First Appeal No. 3694 of 2021 with allied matters, wherein, the coordinate bench of this Court, passed the following order, relevant paras read thus:
"3.1. First Appeal No.3694 of 2021 concerns an application filed by the present appellant before the learned Principal District and Sessions Court at Patan under Sections 29 and 31 of the Guardians and Wards Act, 1890, whereby the present appellant, as mother, has sought permission to sell the right accrued in favour of minor Miss Trisa (Trishna) in joint family property, more particularly for being appointed as guardian for the welfare of the said minor. It appears that vide judgement and order dated 30.7.2021 in CMA DC No.05/2021, the learned Principal District Judge, Patan had rejected the said application inter alia on the ground that the applicant had not produced any material to show the intent that the sale was favourable and in the interest of the minor and further on the ground that there are no details as regards the minor studying.
13. It also appears that later decisions of learned Coordinate Benches of this Court, more particularly in case of Sankhala (Mali) Kantaben Wd/o Bharatbhai Laljibhai (supra), Kailashben W/ o Keshavbhai Chhaganbhai Patel (supra), Krishnakant Maganbhai (supra) and Kantaben Jayendrabhai Savla (supra), have reiterated the very same view that there is no requirement for obtaining permission of the Court under Section 8(2) of the Hindu Minority Page 7 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined and Guardianship Act, 1956 for alienating undivided inter of minor in joint family property. Having regard to the law laid down by this Court and further considering that the said law has been reiterated by the Hon'ble Apex Court, in the considered opinion of this Court, no further discussion on this aspect is required, except for reiterating the obvious, that is to reiterate that Section 8(2) of the Act does not require or contemplate requirement of permission of a Court to be obtained in case of alienation of undivided interest of a minor in joint family property.
13.1. It is clarified that the applicants were not required to file any application for permission under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 and whereas it is also clarified that since Section 8(5) of the said Act contemplates that the provisions of the Guardians and Wards Act, 1890 shall apply to and in respect of an application for obtaining permission of a Court under Sub-section (2) as referred to herein above, as if it were an application for obtaining the permission of a Court under Section 29 of the Guardians and Wards Act, 1890 and whereas since all the orders, which are impugned in this group of appeals arise from applications under Sections 29 and 31 of Guardians and Wards Act, 1890, the observations of the learned Coordinate Benches of this Court as well as of the Hon'ble Apex Court would be squarely applicable mutatis mutandis to the facts of the present case."
9. At this stage, it is apposite to refer to the judgment in the case of Shashiben wd/o. Chandrakantbhai Dahyabhai Fudnawala v/s. State of Gujarat reported in AIR 2020 Guj. 1, the relevant paras-8 to 11 read thus:
"8. Section 29 of the Act reads as under, Section 29: Limitation of powers of guardian of property appointed or declared by the Court Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,
(a) mortgage or charge, or transfer by sale, gift, exchange or Page 8 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined otherwise, any part of the immovable property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.
9. Thus as per the aforesaid provision, there is an embargo raised against the sale of property of minor by guardian appointed by the Court of Law. However in the present case, the guardian of minor viz., Joban Shashikant Patel was not appointed by concerned Court and, therefore, the aforesaid provision would not be applicable.
10. At this stage, the decision upon which reliance is placed by learned advocate for the petitioners is required to be kept in view. In case of Sri Narayan Bal (supra), the Hon'ble Supreme Court has held in Paragraph Nos. 5 and 6 as under, "5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions aforeculled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provisions, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislative in this beneficial legislation becomes manifest.
Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu Page 9 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 to 12 of the Act, the previous permission of the Court under Section 8 of disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.
6. In the instant case the finding recorded by the courts below is that Jagabandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of joint Hindu family, as supporting executants. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, section 8 of the Act can be of no avail to the appellant's claim to nullify the sale."
11. Thus from the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that the previous permission of the Court before disposing the property, is not required when the joint Hindu family property, in which, minor had undivided share, has been sold or disposed of by the karta. Thus in the aforesaid facts of the present case, when the sale deed was executed by Shashikant Jagubhai Patel himself as owner and other family members have also executed sale deed as coowners and further when Shashikant Jagubhai Patel has executed the sale deed as a natural guardian of minor, Joban Shashikant Patel, permission of the concerned court is not required and, therefore, the respondent authorities have committed an error while cancelling the mutation entry in question.
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10. Section 8(2) of the Hindu Minority and Guardianship Act, 1956, reads thus:
"(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."
11. It is undisputed that Rameshbhai Jaisingbhai Baria expired on 21.09.2013, thereafter, mutation entry no. 1568 dated 16.12.2018 came to be entered in the name of legal heirs of Rameshbhai Jaisingbhai Baria i.e. appellants and respondents herein were mutated in the revenue record. On death of Rameshbhai Jaisingbhai Baria, the appellant no.1 managed the family and respondent nos. 2 and 3 were grew-up and maintaining the family. However, the income of the agricultural land is being insufficient to maintain the family and the appellant nos. 3 and 4 were studying and expenses are required for their studies and under such circumstances decided to sell the aforesaid agricultural land. The appellant nos. 2 to 4 being minor and are having their shares in the land, therefore, preferred the application being Guardian Application No. 132 of 2019.
12. Considering the position of law as referred above, facts of the present case and provisions of Section 8 (2) of the Hindu Minority and Guardianship Act, 1956, the appellant no.1 herein being the natural guardian of the appellant nos. 2 to 4 Page 11 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023 NEUTRAL CITATION C/FA/3621/2022 ORDER DATED: 20/02/2023 undefined and Karta of the family be permitted to sale the land in question.
13. In view of the aforesaid, the appellant no.1 be permitted to alienate the undivided share of the minors - appellant nos.3 and 4 herein as stated in the petition, in the joint family property, as referred above, on a condition that, if the suit land in question, as per the findings of the District Court is a new tenure land and if the appellants are willing to sell the same, the said exercise be carried-out, after following due process of law.
14. In view of above, the impugned judgment and order dated 09.03.2022 passed by the 6 th Additional District Judge, Panchmahals at Godhra in Guardian Application No. 132 of 2019 is hereby quashed and set aside. The present Appeal is required to be allowed and same is hereby allowed accordingly.
Direct service is permitted.
Registry is directed to sent back the Record and Proceedings to the concerned Court, if received.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 12 of 12 Downloaded on : Sun Sep 17 22:03:09 IST 2023