2013(1) ALL MR 666
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
S.S. SHINDE, J.
Ku. Kamna D/O. Satyanarayan Handibag Vs. Satyanarayan S/O. Chatrabhuj Handibag & Anr.
Civil Revision Application No. 318 of 2011
26th July, 2012
Petitioner Counsel: Mr. Suresh W. Mundhe
Respondent Counsel: Mr. S.G. Dargad,Mr. K.M. Suryawanshi
Hindu Minority and Guardianship Act (1956), S.8(4) - Guardians and Wards Act (1890), Ss.29, 31 - Sale of land standing in the name of minor - Custody of minor with maternal uncle - Maternal uncle had applied for declaring him as natural guardian and the same was pending - Hence, his application for sale of land would be premature, moreover, land was also grossly undervalued - Order permitting sale of land set aside and matter restored to its original file. (Paras 8, 9)
4. The learned counsel appearing for the revision applicant submits that the applicant is maternal uncle of Ku. Kamna Satyanarayan Handibag. It is submitted that, the application filed by the respondent No.1 for sell of land in the name of Ku. Kamna has been allowed by the trial court. It is submitted that while allowing the said application, the trial court has not taken into consideration the interest of minor child. It is submitted that it is an admitted position that the said land is purchased by the respondent for Rs.4.00 lacs and the approximate value of the said land, in the application filed before the trial Court, is shown Rs.2.00 lacs. It is submitted that the fact that the said land is purchased for Rs.4.00 lacs and the respondent No.1 wants to sell it for just Rs.2.00 lacs, that itself, shows that the respondent No.1 is not interested in protecting the interest of the minor and the Court has also not considered the interest of the minor. It is submitted that there are other properties standing in the name of respondent No.1, his father and mother, however, the respondent has chosen to sell the property, which is in the name of Ku. Kamna. It is submitted that, even the Court should have considered the provision of Sections 29 and 31 of the Guardians and Wards Act 1890. However, the court has not considered the said provisions, therefore, relying upon the grounds taken in the Civil Revision Application, annexures thereto and the decisions of the Assam High Court in the case of Sarat Kalita and others Vs. Dharma Ram Deka and others, reported in AIR 1952 Assam 44 as well as Calcutta High Court in the case of Tarini Kumar Dutta and others Vs. Srish Chandra Das, reported in 1925 Calcutta 1160, counsel for the applicant submits that the interest of the minor i.e. Ku. Kamna has not been considered, at all, by the trial court and has proceeded to allow the application of the respondent No.1 for sell of the land, which stands in the name of Ku. Kamna.
Learned counsel has tendered, across the bar, a copy of notice received by the applicant in Misc. Civil application No. 18 of 2012 filed by the respondent No.1 herein, before the District Judge at Ambejogai for declaring him or appointing him as guardian and custody of the minor Ku. Kamna. Therefore, counsel appearing for the revision applicant submits that filing of such application by respondent No.1 is an indicative fact that he is not declared as natural guardian earlier by the Court and secondly the minor Kamna is not in the custody of the respondent. Therefore, he submits that the revision deserves to be allowed.
5. On the other hand, the learned counsel appearing for respondent No.1, invited my attention to the affidavit in reply filed by the said respondent and submitted that being the father, the respondent is natural guardian of the minor Kamna. Therefore, the application was filed. It is submitted that the said application was filed seeking permission to sell the land so as to invest the amount for the purpose of future education of the minor, livelihood and for the purpose of marriage also. It is submitted that the respondent is ready to deposit an amount of Rs.5.00 lacs in the name of the minor and he is ready to keep the said deposit of Rs.5.00 lacs in the name of minor Kamna till she attains the majority. It is submitted that the maternal uncle of Ku. Kamna has forcibly taken the child from his custody. It is submitted that the property which is purchased in the name of minor is acquired by the respondent from his own earnings. Therefore, counsel appearing for the respondent relying upon the averments in the reply, submits that this Civil Revision Application is devoid of any merits and the same may be dismissed.
6. I have give anxious consideration to the rival submissions advanced by the counsel for the respective parties. At the outset, it is apposite to refer herein below the provisions of sub-Section (4) of Section 8 of the Hindu Minority and Guardianship Act 1956, which reads thus:-
"8. Powers of natural guardian.- (1) ...
(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."
7. Therefore, in view of sub-section (4) of Section 8 of the said Act, it was incumbent upon the trial court to find out and make enquiry in depth how the sell of the land standing in the name of the minor is going to be benefited or advantageous to the child in future. The very fact that the land standing in the name of the minor is purchased at Rs. 4.00 lacs and its approximate price is shown in the application Rs.2.00 lacs is indicative of the fact that the respondent i.e. original applicant has not approached the Court with clean hands. That apart, a copy of notice received by the revision applicant in Misc. Application No. 18 of 2012 would clearly indicate that, at present the custody of the minor is with the revision applicant i.e. maternal uncle of Kum. Kamna. In the said proceedings, there is also prayer by the applicant to declare him as natural guardian. Therefore, upon reading averments and the prayer in Misc. Civil Application No. 18 of 2012, it is crystal clear that formal declaration is sought by the respondent in the said application to declare him as natural guardian. Therefore, it follows from the said prayer that application filed by the respondent for sell of the land standing in the name of Ku. Kamna (minor) was premature.
Apart from the discussion herein above, upon careful reading of the impugned order, it appears to this court that, the court was duty bound to find out the truth whether the application seeking permission to sell of land, standing in the name of the minor, would be for the benefit of the minor. However, in the present case, it appears that the trial court has not made in depth endeavour to do such exercise and by cryptic reasons had allowed by the application filed by the respondent granting him permission to sell the land standing in the name of minor Ku. Kamna. Having glanced on the averments in the application, which was filed for sell of the land, would make it clear that the averments are general in nature, there are no specifications given by the applicant, in which he expressed his desire to protect the interest of the minor and by which mode and manner, he intends to deposit the amount after sell of land standing in the name of minor. It is also clear that the trial court has not adverted to the provisions of Sections 29 and 31 of the Guardians and Wards Act 1890.
8. Therefore, taking over all view of the matter, in my considered opinion, the order of the trial court cannot sustain in law. However, the applicant, as maternal uncle of the minor Ku. Kamna, has not got opportunity to put forth his contentions, as are raised in this Civil Revision Application, before the trial court. Therefore, in my view, the ends of justice would meet if the revision applicant is permitted to file an application for intervention.
9. Therefore, the impugned judgment and order dated 14.12.2011 passed by the learned District Judge-1, Ambajogai in Misc. Civil Application No. 25 of 2011 is quashed set aside. The Misc. Civil Application No. 25 of 2011 is restored to its original file. Revision applicant will be at liberty to file intervention in the said proceeding. It is left upon to the court concerned, to find out whether the revision applicant can agitate the grievance of Ku. Kamna. The respondent will be at liberty to contest the application for intervention, which will be filed by the revision applicant herein. Since the Misc. Civil application No. 18 of 2012, pending before the Adhoc District Judge-2, Ambejogai, has direct bearing on the subject matter of the Misc. Civil Application No. 25 of 2011, it is desirable that both the proceedings are heard simultaneously so as to avoid any inconvenience to the parties in both the proceedings.
12. Since the applications are pending for considerable period, it is desirable that, the concerned court shall make endeavour to dispose of the Misc. Civil Application Nos. 25 of 2011 and 18 of 2012, as expeditiously as possible, however, within a period of three months from today. It is needless to mention that the concerned court shall not grant unnecessary adjournments unless there is extra ordinary reason for granting such adjournment.