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2014 DIGILAW 1505 (PNJ)

Khurshidan v. General Public

2014-11-10

AJAY K.MITTAL, RAJ RAHUL GARG

body2014
JUDGMENT Mr. Ajay Kumar Mittal, J.: - Delay of 36 days in refiling the appeal is condoned. 2. This appeal has been filed by the appellant against the judgment dated 31.1.2013 passed by the Civil Judge (Senior Division), Nuh, whereby the petition filed by her under the Guardian and Wards Act, 1890 (in short “the Act”) for permission to sell the property of minor, namely, Sahil, was dismissed. 3. The facts, in brief, necessary for adjudication of the instant appeal as narrated therein may be noticed. The appellant is widow of Sahoon who expired on 2.12.2006. Said Sahoon was co-sharer in possession of the land as detailed in para 2 of the judgment and has left a minor son, namely, Sahil as his legal heir who is in care and custody of the appellant. Mutation of inheritance of the said land was entered and sanctioned in his favour. The appellant and her minor son were residing at village Chila whereas the land is scattered in meager pieces in three villages and the co-sharers being strong headed person wanted to grab his share illegally and forcibly. According to the appellant, she had no adverse interest to that of minor and she was also in need of the money for the betterment, maintenance, education and upliftment of minor. Therefore, she filed a petition for permission to sell the property of minor Sahil. Upon notice of the said petition, respondent No.1 was proceeded against exparte whereas respondent No.2 had appeared but did not file any reply. From the pleadings, the trial court framed the following issues:- 1. Whether the petitioner is entitled to sell the land detailed in para No.2 of the petition? OPP 2. Relief. 4. The trial court on appreciation of evidence led by the appellant held that to secure the right of the minor, the appellant may get an injunction order against any of the persons who allegedly wanted to encroach/grab the property of the minor. Accordingly, the trial court vide judgment dated 31.1.2013 dismissed the petition. Hence, the present appeal. 5. Learned counsel for the appellant submitted that the appellant being the guardian and mother of the minor Sahil be permitted to sell the property of the minor. Learned counsel further submitted that sale of property was necessary to meet out financial need for the purpose of education and rehabilitation of the minor. 6. Hence, the present appeal. 5. Learned counsel for the appellant submitted that the appellant being the guardian and mother of the minor Sahil be permitted to sell the property of the minor. Learned counsel further submitted that sale of property was necessary to meet out financial need for the purpose of education and rehabilitation of the minor. 6. After hearing learned counsel for the appellant, we do not find any merit in the instant appeal. 7. The trial court while declining the prayer of the appellant for selling the property of minor Sahil had noticed as under:- “10. It is necessary to point out here that for succeeding in the petition, the petitioner is suppose to depose the facts and contents as contended by leading admissible piece of evidence. It is necessary to point out here that the petitioner failed to prove the age of the minors as copy of birth certificate placed on file could not be able to disclose the name of the minors, however, an affidavit placed on file and thereby it is deposed that due to lapses on the part of the concerned officials the name of the minors could not be reflected in the birth certificate. It is necessary to point out here that in order to substantiate this fact no official from concerned department called as a witness. It is necessary to point out here that in view of facts the very basic requisite that the land in question belongs to some minors could not be substantiated. It is also noticed by this court that land is lying in three different villages and that the petitioner for securing the right of minors may get an injunction order against any of the persons who allegedly want to encroach/grab the property of minors. It is necessary to point out here that even otherwise the petitioner did not prefer to institute the petition in respect of land lying in one of the villages which could be sufficient in order to meet out financial need for purpose of education and rehabilitation of minors.” 8. The trial court on appreciation of the evidence on record held that to secure the right of the minor, the appellant could get an injunction order against any of the persons who allegedly wanted to grab the property. The trial court on appreciation of the evidence on record held that to secure the right of the minor, the appellant could get an injunction order against any of the persons who allegedly wanted to grab the property. It was further held that even otherwise the appellant did not file any petition in respect of the land lying in one of the villages which could be sufficient in order to meet out the financial need for the purpose of education and rehabilitation of the minor. The bonafides of the appellant in filing the petition were, thus, not established. 9. It was not demonstrated how the judgment passed by the trial was erroneous or perverse in any manner which may warrant interference by this Court. Consequently, finding no merit in the present appeal, the same is hereby dismissed. No costs. 10. The appeal is barred by limitation and an application bearing CM No. 12118-CII of 2014 has been moved under Section 5 of the Limitation Act, 1963 for condonation of 99 days’ delay in filing the appeal. Since, the appeal has been dismissed on merits, no further orders are required to be passed in the application for condonation of delay and the same is also disposed of as such. ---------0.B.S.0------------ —————————