Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Guardian Petition No.112/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
GUARDIAN PETITION NO. 112 OF 2019
Vijay Mohandas Nihlani,
Aged about 43 years, Hindu
Indian inhabitant of Mumbai,
Occupation Selef employed having
residential address at 902, Vastu
Siddhi Apartment, Jijamata Road,
Pump House, Andheri (East),
Mumbai 400 093 ...Petitioner
Appearance: Adv. Mr. Sameer Sawant for the Petitioner.
Coram : Ashutosh N. Karmarkar,
Judge, (Court Room No. 54)
Dated : 11th November, 2019
JUDGMENT
1. This is an application for appointing the Petitioner as a
guardian. He has also prayed for allowing him to execute sale deed in
respect of 3 flats situated at Andheri (E), and to collect consideration
amount.
2. The Petitioner is a Chartered Accountant. The minor
Himank is the biological son of the petitioner. Date of birth of Himank
is 26.01.2005. Due to love and affection towards the said minor, the
petitioner has purchased Flat no. 2103, 2104 in Ornella Vasant Oasis,
Andheri (E), and Flat No. 1503, 15th floor, Wing No. 7, Deffodil, Vasant
Oasis, Marol Maroshi Road, Off AndheriKurla Road, Andheri (E), in the
joint name of the petitioner's father Shri Mohandas and minor son
Himank.
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3. Due to certain unavoidable circumstances, the petitioner is
required to sell the said three properties by way of sale deed. Unless
these properties are disposed of, he cannot not regenerate funds for the
future life of the minor and cannot not give best life to the minor. The
petitioner being natural guardian has power to execute sale deed with
intending purchasers. The subRegistrar Office was informed that to
execute the sale deed on behalf of the petitioner's minor son, the
petitioner is required to get the Guardianship Certificate from the
appropriate court of Law.
4. The petitioner's wife Purva and father Mohandas have
consented for appointing the petitioner as a guardian of minor Himank.
The minor Himank is residing with the petitioner and is being
maintained and educated by the petitioner.
5. I have heard Advocate for the petitioner.
6. According to him, he has purchased the above referred flats
in the year 2017. Now the petitioner wants to sell the same to
regenerate funds for the better future life of the minor. The petitioner
has placed on record copies of agreement to sell in respect of flat Nos.
2103, 2104 and 1503 alongwith list Exh.4 to show that those were
purchased in 2017. The notice was published in daily newspaper
Navshakti dated 20.08.2019. No objections are received. The
petitioner has filed affidavit Exh. 2. While making order of
guardianship or granting permission for sell of property of the minor,
welfare of the minor is required to be seen. It appears that the
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petitioner's father and the petitioner's minor son were the purchasers of
the flat in 2017. Affidavit of the petitioner's father Mohandas is also
filed at Exh. I. It shows that the properties/flats standing in the joint
name of the petitioner's father and minor Himank. So, the contention
of the petitioner that, he purchased these properties appeared to be
contrary to the contents in the affidavit of Mohandas.
7. It appears that, the petitioner's son is in 9th standard and his
age is about 14 to 15 years. The only contention of the applicant is
that, due to certain unavoidable circumstances, he is required to dispose
off the properties by way of sale deed. It is further contended that,
unless these properties are disposed off, he cannot regenerate the funds
for future life of minor and cannot give best life to the minor. Same
contents are raised in affidavit Exh.2. However, the grounds for getting
permission to sell property in the name of minor appeared to be vague.
It is not the case that the minor requires expenses for higher education
etc. Under Sec. 8 of the Hindu Minority and Guardianship Act, the
natural guardian of a Hindu minor has power 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. It does not
reveal from the contents in the application that there are sound reason
to dispose off the minor's property and that it is for the benefit of the
minor particularly, when no details are given in it. It cannot be
ascertained as to how this alleged sale of property will be proper and in
the interest of minor. Even there are no details about agreed sell
consideration and that whole transaction would be in the interest of
minor. Therefore, it is difficult to grant permission to the applicant to
sign execute sale deed in respect of the properties mentioned in the
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application and to receive sale consideration.
8. Another prayer is regarding appointment as guardian, but,
it is specifically mentioned by the petitioner that the minor is residing
with him and is being maintained by him itself. The petitioner has
contended that in order to execute sale deed of the properties is
mentioned in the application and to receive consideration amount, the
petitioner is desirous of being appointed as a guardian. It is already
discussed that no permission, as sought by the petitioner for sale of the
properties of minor, can be granted. Hence, this relief also cannot be
granted in view of specific contention in para 10 of the petition.
Therefore, I am of the opinion that the petition deserves to be
dismissed. Accordingly, I proceed to pass order in following terms.
ORDER
Guardian Petition No. 112 of 2019 is hereby dismissed and
disposed off accordingly.
( Ashutosh N. Karmarkar )
Judge,
Date : 11.11.2019 City Civil Court, Gr. Mumbai.
Dictated on : 11.11.2019
Transcribed on : 14.11.2019
Date of sign : 22.11.2019
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5 Guardian Petition No.112/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 22.11.2019 11.15 A.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri A.N. Karmarkar
(C.R.No. 54)
Date of Pronouncement of
JUDGMENT /ORDER
11.11.2019
JUDGMENT /ORDER signed by P.O. on 22.11.2019
JUDGMENT /ORDER uploaded on 22.11.2019
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