Delhi District Court
Shivangi Bhalla @ Shivangi Arora vs State on 6 May, 2024
IN THE COURT OF SH. AJAY GARG,
DISTRICT JUDGE - 01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
GP No.02/2023
CNR No. DLET01-002247-2023
IN THE MATTER OF :-
1. Ms. Shivangi Bhalla @ Shivangi Arora
W/o Late Sh. Lokesh Arora
2. Ms. Anaysha Arora
D/o Late Sh. Lokesh Arora and
Ms. Shivangi Bhalla,
R/o H.No. 23/4, Labour Colony,
Lohia Nagar, Govind Nagar, Kanpur,
Kanpur Nagar, U.P.-208006
Also at:
A-143, Third Floor (without roof)
Priyadarshini Vihar, Delhi-110092
.....Petitioners
Versus
1. The State (Govt. of NCT of Delhi ),
Through
District Magistrate/Collector
Office of The District Magistrate (East)
L&M Band, Shastri Nagar Pusta Road,
Delhi-110031
2. Puneet Arora
S/o Late Sh. Mahesh Arora,
R/o A-146, Second Floor, Priyadarshini
Vihar, Delhi-110092
(performa party, no relief claimed)
.....Respondents
Date of Institution : 16.02.2023
Reserved for order on : Not reserved
Date of Decision : 06.05.2024
GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.1 of 11
JUDGMENT
Petition U/s 8 (1)(2) & (5) of Hindu Minority & Guardianship Act, 1956 read with Section 29 of the Guardians & Wards Act, 1890 for grant of permission to sell the property of minor.
1. Brief facts, of the case relevant for the disposal of the present petition are that the petitioner no.1 has filed the present petition for appointment of guardian of petitioner no.2 to sell 50% undivided share of minor/petitioner no.2 namely Anaysha Arora in the property i.e. Entire build up freehold residential third floor (up to ceiling level i.e. excluding roof/terrace rights), in built up property No.A-143, area measuring 234.10 sq. mtrs. i.e. 280 sq. yds, having its plinth area of 175.57 sq. mtrs. along-with its structure according to the site therein, consisting of four bed room, one drawing cum dining room, one kitchen, three toilet/bathrooms and two lobby thereon fitted with electricity and water, common entrance, passage staircase and with two cars and two bikes/scooters parking at stilt floor, along-with all common facilities/amenities provided in the building, with the rights to install/maintain the water tank and dish T.V Antenna on the roof of the top floor, a part of property No.A-143, situated in the layout plan of American Embassy Indian Employees Co-operative House Building Society Ltd. presently known as Priyadarshini Vihar, Delhi-110092 (hereinafter referred to as "suit property"), on the averments that the mother-in-law of petitioner no.1 namely Smt. Poonam Arora was the actual, absolute and exclusive owner of the suit property vide registered sale deed dated 25.03.2021. Unfortunately, Smt. Poonam Arora expired intestate on 20.04.2021 due to Covid-19 GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.2 of 11 leaving behind Sh. Puneet Arora (son)/respondent no.2 herein and her son namely Lokesh Arora, who predeceased her. Her husband also predeceased her. The petitioner no.1 was married with Sh. Lokesh Arora on 24.09.2017 as per Hindu Rite and Ritual and since marriage, she was residing in the suit property, however, post death of her husband and her mother-in-law, most of the period in a month, she is staying with her parents in Kanpur. Out of the said wedlock, a girl child namely Anaysha i.e. petitioner no.2 herein was born on 31.01.2019. The petitioner no.1, her deceased husband and petitioner no.2 are Hindu and governed by Hindu Law.
The husband of petitioner no.1 also expired intestate on 19.04.2021 due to corona virus pandemic leaving behind his family in distress condition. The husband of petitioner no.1 was the only earning member in the family. After the death of deceased Poonam Arora, the petitioners had acquired 25% each share in the suit property. After the death of mother-in-law of petitioner no.1 and intervention of common family friends and relatives, a family partition took place in the family and the brother-in-law of petitioner no.1 namely Sh. Puneet Arora (respondent no.2 herein) relinquished his 50% share in the suit property in favour of the petitioners and thus, by way of registered relinquishment deed dated 15.07.2022, the petitioners became the absolute and exclusive owner of the suit property in equal shares. The husband of petitioner no.1 had no property in his name either independent or jointly owned at the time of his demise.
After the death of deceased husband of petitioner no.1, the petitioner no.2 is under the care, custody and control of GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.3 of 11 petitioner no.1 being her natural guardian and is currently studying in a playgroup standard at "The Chintels Education Society", Kanpur. Since the petitioner no.2 is approaching towards her schooling age of primary standard, the petitioner no.1 is unable to keep up with her day to day expenditures to the best of her efforts. The husband of petitioner no.1 was operating a joint family business of manufacturing and trading of sweets and namkeen snacks in the name and style of "Arora Namkeen and Confectionary" in a rented property in Daryaganj, New Delhi, however, after his unfortunate demise, the entire business and its continuity got hindered. The said business went into the share of respondent no.2/her brother-in-law.
Post selling the suit property and in order to best utilize her own half share, the petitioner no.1 intends to purchase a small multistory independent residential property nearby her parents home at Kanpur, UP for her residence and exploit the remaining funds of her share to upgrade her coaching/tuition business on a floor in the same building as well as to earn some rental income by letting out remaining stories on rent. The purpose of selling the suit property by petitioner no.1 is purely in the interest of the child and since the daughter of the petitioner no.1 would now be upgraded to regular education standard, the education expenses would definitely increase to a larger extend. The money realized after selling the share of the minor in the suit property shall be used and spent only in the welfare, upkeep, maintenance educational expenses and other necessary expenses of the minor. The minor/petitioner no.2 has no testamentary guardian or guardian appointed or declared by the court of law. No other similar petition has been filed in any of the court having GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.4 of 11 jurisdiction to deal with the suit property quo the relief sought in the present petition. Petitioner no.1 has optimistic interest towards the minor and the present petition is under social beneficial legislation. Petitioner no.1 is interested in selling the suit property in view of compelling circumstances. The petitioner no.1 is willing to sell the suit property including the share of petitioner no.2 for maintaining the minor child properly. Hence, this petition.
2. The notice of the petition was issued to the State/respondent as well as general public which was served upon them by way of publication in the newspaper 'The Statesman' dated 05.04.2023 and 'Rashtriya Sahara' dated 28.03.2023. Despite publication in the newspaper and notice to general public at large, no one has come forward to make any objection in respect of the prayer made by the petitioners in the present petition.
ISSUES:
3. From the pleadings of the parties, following issues were framed on 04.07.2023:-
1. Whether the petitioner is entitled to be appointed as guardian of the minor/petitioner no.2-Anaysha Arora in respect of the property bearing No.A-143, IIIrd Floor, American Embassy Indian Employees Co-operative House Building Society Ltd. (presently Priyadarshini Vihar), Delhi-110092, as prayed for? OPP
2. Relief.
EVIDENCE:
4. In order to prove the case, the petitioner no.1 herself GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.5 of 11 stepped into witness box as PW1 and tendered her evidence by way of affidavit Ex.PW1/A. She also relied upon the following documents:-
i. Ex.PW1/1 (OSR) is copy of her Aadhar card. ii. Ex.PW1/2 (OSR) is copy of relinquishment deed dated 15.07.2022.
iii. Ex.PW1/3 is sale deed dated 19.03.2021. iv. Ex.PW1/4 (OSR) is copy of passport of petitioner no.2. v. Ex.PW1/5 (OSR) is copy of birth certificate of petitioner no.2.
vi. Ex.PW1/6 (OSR) is copy of school identity card of petitioner no.2.
vii. Ex.PW1/7 (OSR) is copy of passport of deceased husband of petitioner.
viii. Ex.PW1/8 is original death certificate of husband of petitioner.
ix. Ex.PW1/9 is computer generated quarterly fee payment receipt of school of petitioner no.2.
x. Ex.PW1/10 (03 pages colly.) (OSR) is copy of education credentials of petitioner no.1.
xi. Ex.PW1/11 is certificate u/s 65B of the Indian Evidence Act.
xii. Mark A is copy of death certificate of the mother-in-law of petitioner no.1, namely, Smt. Poonam Arora. xiii. Mark B is copy of death certificate of father-in-law of petitioner no.1, namely, Sh. Mahesh Arora.
Petitioner's evidence was closed on 13.12.2023 vide separate statement of petitioner no.1.
GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.6 of 11
5. Thereafter, petitioners filed an application for leading additional evidence and the same was allowed vide order dated 01.05.2024. In additional evidence, the petitioner no.1 tendered following documents:-
i. Ex.PW1/12 is surviving member certificate of Lt. Smt. Poonam Arora.
ii. Ex.PW1/13 is surviving member certificate of Lt. Sh.
Lokesh Arora.
iii. Ex.PW1/14 is certificate u/s 65B of Indian Evidence Act.
Thereafter, additional petitioner's evidence was closed on 01.05.2024.
6. Final arguments heard. Record perused. Considered. My issue-wise findings are as under:
FINDINGS:
ISSUE No.1:
"Whether the petitioner is entitled to be appointed as guardian of the minor/petitioner no.2-Anaysha Arora in respect of the property bearing No.A-143, IIIrd Floor, American Embassy Indian Employees Co-operative House Building Society Ltd. (presently Priyadarshini Vihar), Delhi-110092, as prayed for? OPP"
7. Section 8 of The Hindu Minority & Guardianship Act 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 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 GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.7 of 11 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 sub-section (1) or sub-section (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 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 the Act.
8. Section 29 of The Guardians & Wards Act, 1890 defines the limitation on the powers of guardian of property appointed or declared by the court to the extent that such guardian shall not, without permission of the Court.
(a) Mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or
(b) lease any part of such property for a term exceeding give years or for any term extended more than one year beyond the day on which the Ward will cease to be minor.
9. Section 31(1) of The Guardians & Wards Act, 1890 provides that permission to the guardian to do any of the acts mentioned in Section 29 shall not be granted by the court except in case of necessity or for an evident advantage to the ward. Section 31(2) provides the manner in which permission is to be granted. Section 31(3) provides the conditions that may be imposed while granting permission. Section 31(4) provides that before granting permission, the court may cause notice of the GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.8 of 11 application to be given to any friend or relative of the ward.
10. The petition discloses that the family of the petitioner underwent tragedy due to the demise of Sh. Lokesh Arora, leaving the entire burden of the family on the shoulders of petitioner no.1. Petitioner no.1 is the natural guardian of minor Anaysha Arora and she is looking after and maintaining minor Anaysha Arora who is living under her care and custody. Petitioner no.1 has no adverse interest to that minor. The petitioner no.1 has no sufficient means/amounts for the good education and welfare of the minor.
11. The disposal of the property in question seems a necessity and for an evident advantage to the minor. The petitioner no.1 is the natural guardian/mother of the minor. There is no material to gather an inference that his interest could be in conflict with or adverse to that of the minor.
12. No other LRs except respondent no.2 or any person from general public, in response to the public notices, have come forward for raising any objection to the petition. The respondent no.2 has already given no objection in respect of suit property. There is no impediment in granting the permission as sought by the petitioner no.1. Accordingly, this issue is decided in favour of the petitioners.
ISSUE No.2 (Relief):
13. In view of the above findings, the present petition is allowed. The petitioner no.1 is appointed as guardian of GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.9 of 11 petitioner no.2- Ms. Anaysha Arora and granted permission to sell 50% share of petitioner no.2 in the suit property i.e. Entire build up freehold residential third floor in built up property No.A-143, area measuring 234.10 sq. mtrs. i.e. 280 sq. yds, having its plinth area of 175.57 sq. mtrs. situated in the layout plan of American Embassy Indian Employees Co-operative House Building Society Ltd. presently known as Priyadarshini Vihar, Delhi-110092, with the following conditions:-
a) That the sale of minor's share in the suit property shall not be made below the market price with minimum value of Rs.75 Lakhs.
b) The share of minor, namely, Anaysha Arora, not less than Rs.75 Lakhs, out of the sale proceeds of the suit property shall be kept in an interest bearing FDR with a Nationalized Bank for the period till the minor attained majority with accumulative interest thereupon or Gold Bond to be encashed only upon the majority of minor.
c) Upon majority, the minor shall be at liberty to utilize the FDR amount or Gold Bond with accrued interest as per her wishes.
d) As soon as the sale has been made, a compliance report shall be filed within one month of the sale.
e) This permission shall not tantamount to vesting or conferring any right, title or interest in the property proposed to be sold.
f) The petitioner shall not be entitled/allowed to any allowance.
g) The petitioner shall furnish a surety/personal bond equivalent to the sale value of the share of minors but not GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.10 of 11 less than Rupees One Crore each as per Form-D, given in chapter 2 part-D, Volume-2 of the Delhi High Court Rules;
h) Special attention of the petitioner has been drawn to the provisions of Section 26, 27, 28, 29, 32, 33, 35, 36, 39, 44 & 45 of The Guardians & Wards Act, 1890.
14. On fulfillment of necessary conditions, the guardianship certificate as per Form-F given in Chapter-2, part- D, Volume-2 of the Delhi High Court Rules be issued.
Ordered accordingly.
File be consigned to record room after due
Digitally signed
compliance. AJAY by AJAY GARG
Date:
2024.05.07
GARG 16:29:13
+0530
Announced in the open (AJAY GARG)
Court on 06.05.2024. Additional District Judge-01 East District, KKD Courts/Delhi GP 02/23 Ms. Shivangi Bhalla & Anr. Vs. State & Anr. Page No.11 of 11