Final Order 1

Order Details: Copy of Judgment
Pdf Text: Presented on : 12/06/2018
Registered on : 06/07/2018
Decided on : 14/11/2018
Duration : 00Y 05M 02D
Exhibit7
IN THE COURT OF SESSION FOR GREATER BOMBAY, BOMBAY.
GUARDIAN PETITION NO.312 OF 2018
CNR NO.: MHCC010069712018
Shri Rajesh Manilal Gala ] PETITIONER
Aged: 43 years, Occupation: Business, ]
R/o.: E203, Veena Beena CHS, ]
Opp. Sewree Bus Depot, A.D. Marg, ]
Sewree, Mumbai – 400 015. ]
APPEARANCE:
Ms. Dipti Nagda, Advocate for the Petitioner.
APPLICATION UNDER SECTION 8 OF THE HINDU MINORITY AND
GUARDIANSHIP ACT, 1956
CORAM : SHRI S.V. YARLAGADDA
ADDITIONAL SESSIONS JUDGE
(Court Room No.54)
DATE : 14th November, 2018.
J U D G M E N T
(Dictated and pronounced in open Court)
This is an application by a natural guardian father for
permission of the Court for sale of property of minor daughter Ms.
Mahek Rajesh Gala.
The legal provisions relevant for this application are as
follows:
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2. Section 4(a) of the Hindu Minority and Guardianship Act,
1956 explains that “minor” means a person who has not completed the
age of 18 years. In the present case, Ms. Mahek Rajesh Gala is aged
about 12 years and hence, a minor.
3. As per section 4(b)(i) of the said Act, “guardian” means a
person having the care of the person of a minor or his property or of
both, his person and property, and includes a natural guardian. As per
section 4(c) of the said Act, “natural guardian” means any of the
guardians mentioned in section 6. As per section 6(a) of the said Act,
the natural guardian of a Hindu minor, in respect of the minor's person
as well as minor's property (excluding his or her undivided interest in
joint family property) are, in case of a boy or unmarried girl – the
father, and after him, the mother. In the present case, the minor is a
Hindu. She is an unmarried girl. Therefore, as per section 4(b)(i) and
4(c) read with section 6(a) of the said Act, the petitioner is the guardian
as well as her natural guardian.
4. Powers of the natural guardian are mentioned in section 8
of the said Act. As per section 8(1), the natural guardian of 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 realization, protection or benefit of the minor's estate; but
the guardian can in no case bind the minor of a personal covenant. As
per section 8(2)(a) of the said Act, the natural guardian shall not,
without the previous permission of the Court, mortgage or charge or
transfer by a sale, gift, exchange or otherwise, any part of the
immovable property of the minor. In the present case, the natural
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guardian is desirous of selling the minor's immovable property viz., flat
no.E203, Veena Beena CHS, Opp. Sewree Bus Depot, A.D. Marg,
Sewree, Mumbai – 400 015. The said property was purchased by the
natural guardian and his late wife i.e. mother of the minor. After death
of the petitioner's wife, her interest i.e. onehalf, equally devolved on
the petitioner and the minor. Thus, the minor has onefourth undivided
share in the said property.
5. The petitioner submitted that he and his late wife
purchased the following two properties also:
(1) Flat no.501, 5th Floor, Satguru Supreme, Mirani
Nagar, Valji Ladha Road, Mulund, Mumbai – 400
080.
(2) Bungalow no.12, Type C2, Ravi Valley CHS, Survey
no.48, Hissa no.2, Village Tungarli, Taluka Maval,
Dist. Pune, Lonavala Municipal Council.
As mentioned above, after death of the petitioner's wife, the
minor inherited onefourth share in those two properties also.
6. The petitioner is desirous of selling one of the properties
i.e. flat no.E203, Veena Beena CHS, Opp. Sewree Bus Depot, A.D.
Marg, Sewree, Mumbai – 400 015, for the purpose of liquidating the
outstanding housing loan obtained for acquiring the above mentioned
property situated at Mulund. I have examined him on oath. He stated
this fact on oath. He produced photo copies of the documents
pertaining to the said housing loan. I do not find any reason to
disbelieve the petitioner's version. The petitioner stated on oath that
the minor is having onefourth undivided share in the above mentioned
immovable properties stated at Mulund and Lonavala and that he
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already gave nomination form to the concerned housing societies
nominating the minor as his successor after his demise. He submitted
that he is not yet married.
7. The following are the points for determination and my
findings.
POINTS FINDINGS
1. Whether the sale of the immovable
property bearing flat no.E203, Veena
Beena CHS, Opp. Sewree Bus Depot,
A.D. Marg, Sewree, Mumbai – 400 015,
proposed by the petitioner, is a case of
necessity or for an evident advantage to
the minor Mahek ?
Yes.
2. What Order ? The petition is
allowed.
REASONS FOR THE FINDINGS
POINT NO.1:
8. As per section 8(4) of the said Act, no Court shall grant
permission to the natural guardian, to do any of the acts mentioned in
subsection (2) except in case of necessity or for an evident advantage
to the minor. In view of the above mentioned facts, liquidating the loan
obtained for acquiring the house property at Mulund is a case of
necessity. The petitioner stated on oath that the minor would inherit
his interest also of the remaining two immovable properties after his
demise and for that purpose, he already nominated her. Therefore, it
would be legal to grant permission to the petitioner to sell one of the
immovable properties i.e. flat no.E203, Veena Beena CHS, Opp. Sewree
Bus Depot, A.D. Marg, Sewree, Mumbai – 400 015.
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9. One of the immovable properties is situated at Lonavala
beyond the local limits of jurisdiction of this Court. But, as per section
8(6) of the said Act, where the immovable property is situated within
the jurisdiction of more than one Court, the Court within the local limits
of whose jurisdiction any portion of the property is situated, is
competent to grant such permission. Out of the three immovable
properties, the property sought to be sold is situated within the local
limits of jurisdiction of this Court. Therefore, this Court is competent to
grant such permission.
10. The petitioner testified that his wife Sushma died on
08.05.2018. True copy of her death certificate is produced on record.
In the petition, initially he mentioned that he wanted to sell it to one
Anselm Joaquim Pereira and Mrs. Evelyn Ditoza Pereira. But, as this
proceeding consumed time, now those two persons are no more
interested in buying this property. The petitioner's learned advocate
submitted that unless the petitioner is equipped with the permission to
sell, no prospective buyer is ready to enter into an agreement to sell or
sale transaction with the petitioner regarding the said flat. Accordingly,
the petitioner amened the petition by incorporating those developments.
11. The petitioner averred that except himself and the minor,
there is no other successor or survivor of his late wife. Notice of the
present proceeding was published in local English newspaper, Free Press
Journal and Marathi newspaper Navshakti. Their printed extracts are
produced on record. They were published on 14.08.2019. Nobody
appeared to take an objection or lay other claim.
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12. The petitioner is a natural guardian. The proposed sale is
for legal necessity. The petitioner is nominating the minor to inherit his
interest in the remaining two immovable properties. Therefore, I am of
the opinion that the permission is liable to be granted to sell the
immovable property i.e. flat no.E203, Veena Beena CHS, Opp. Sewree
Bus Depot, A.D. Marg, Sewree, Mumbai – 400 015. Hence, I answer
point no.1 in affirmative and pass the following order.
FINAL ORDER
(1) The application is allowed.
(2) The petitioner is permitted to sell the immovable property of flat
no.E203, Veena Beena CHS, Opp. Sewree Bus Depot, A.D. Marg,
Sewree, Mumbai – 400 015 to liquidate the house loan obtained
for purchasing flat no.501, 5th Floor, Satguru Supreme, Mirani
Nagar, Valji Ladha Road, Mulund, Mumbai – 400 080
(3) The petitioner shall in a period of one month from the date of sale
of said flat no.E203, Veena Beena CHS, Opp. Sewree Bus Depot,
A.D. Marg, Sewree, Mumbai – 400 015, utilize the said amount to
liquidate the loan obtained from Edelweiss Housing Finance
Limited, Mirani Nagar, Valji Ladha Road, Mulund, Mumbai – 400
080 for purchasing the said property at Mulund and submit the
compliance affidavit to this Court.
The Guardian Petition is disposed off accordingly.
(S.V. YARLAGADDA)
Additional Sessions Judge,
Date: 14/11/2018. Greater Bombay.
Order Dictated on : 14/11/2018
Transcribed on : 14/11/2018
Signed on : 14/11/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
14/11/2018 at 5.40 p.m. BHARAT KASHINATH GAIKWAD
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.V. YARLAGADDA
(Court Room No.54)
Date of pronouncement of Order 14/11/2018
Order signed by P.O. on 14/11/2018
Order uploaded on 14/11/2018
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