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2019 DIGILAW 2279 (RAJ)

Pawan Sharma v. Rina Sharma

2019-08-22

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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JUDGMENT Narendra Singh Dhaddha, J. -D.B. Civil Misc. Application 1507/2019:- For the reasons mentioned in the application, delay of 56 days in filing the appeal is condoned. The application under Section 5 of the Limitation Act is allowed. D.B. Civil Misc. Appeal 3937/2019:- 1. This appeal has been preferred by the appellant Pawan Sharma against the order of the learned Family Court No.3, Jaipur passed on 1.5.2019 whereby the learned Family Court rejected the civil Suit No.5/2018 (827/2018) filed u/s 27 of the Guardians and Wards Act, 1890 for appointment of appellant as guardian of half share of the property of his minor son and seeking permission for sale of half share of minor in the said property for the benefit and advantage of his minor child. 2. Brief facts giving rise to this appeal are that father of the appellant i.e. late Shri Rajendra Pakash Sharma was the owner of the property situated at Plot No.A-43, Govindpuri, Baees Godam, Jaipur measuring 196.44 sq. yd. which is the current resident of the appellant. Late Shri Rajendra Prasad Sharma expired on 3.9.2016, who, before his death, executed a registered Will on 3.9.2013 whereby the said property was bequeathed equally in favour of the appellant and his minor grand-son namely Parth Upadhaya borne on 7.1.2010. As per Will, the appellant had been granted right to sell the share of his minor son even before he would attain the age of majority for the purposes of education and upbringing of minor child on condition that the sale deed for transfer of such property must contain the signatures of his wife as a witness. So, the wife Smt. Rina Sharma was impleaded as the proforma respondent. The appellant and his wife are living together in the same house along with their minor son. The Patta of the said property was issued by the Jaipur Development Authority on 6.4.2018. The appellant being the natural guardian of the child be declared as guardian of half share of the minor in the property and further prayed for permission of the court to sell the half share of the minor of the said property. The learned Family Court after hearing both the parties, dismissed the application filed by the appellant on 1.5.209. 3. The learned Family Court after hearing both the parties, dismissed the application filed by the appellant on 1.5.209. 3. The respondent in her reply accepted the facts mentioned in the application stating that she had no objection if the half share of the property was being sold in the interest of her minor son for the purpose of his education. 4. From the pleadings, the learned Family Court framed the following Issues : 5. Appellant was examined himself as AW-1 and respondent herself as NAW-1. After hearing the learned counsel for the parties, the learned Family Court decided all the Issues against the appellant. 6. Learned counsel for the appellant submitted that the impugned order dated 1.5.2019 is erroneous and contrary to law. Learned counsel for the appellant submitted that father of the appellant executed a registered Will on 03.09.2013 whereby the said property was bequeathed equally in favour of the appellant and his minor grand-son Parth Upadhaya. As per Will, the appellant was granted right to sell the share of his minor son even before he would attain the age of majority for the purposes of education and upbringing of minor child subject to the condition that the sale deed must bear signatures of wife of the appellant as a witness. 7. Learned counsel for the appellant submitted that the appellant is working as a private interior design consultant. The appellant is physically handicapped, so he wants to sell the said property for the education of his minor son. Learned counsel for the appellant submitted that the learned Family Court has wrongly come to the conclusion that salary of the appellant as sufficient to bear the expenses of education. The payment of school fees cannot be said to be the only expenses towards the child. The learned Family Court has wrongly confined the entire case to the payment of school fees without considering the overall practical situation. The appellant had no other property to transfer in order to make the requirements. 8. The learned counsel for the appellant also submitted that the learned Family Court had failed to consider that under Section 8 (4) of the Hindu Minority and Guardianship Act as well as Section 29 of the Guardians and Wards Act, the permission shall not be granted by the court except in case of 'necessity' or 'evident advantage of the ward'. The learned counsel for the appellant also submitted that the learned Family Court had failed to consider that under Section 8 (4) of the Hindu Minority and Guardianship Act as well as Section 29 of the Guardians and Wards Act, the permission shall not be granted by the court except in case of 'necessity' or 'evident advantage of the ward'. Learned counsel for the appellant also submitted that there was no finding of the court that the appellant was seeking permission to dispose of the property for any illegal or malafide reason. Learned counsel for the appellant also submitted that the appellant being "Karta" of the family was within its right to dispose of the property for the benefit of the family. So, the court ought to have considered this aspect. 9. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the appellant, perused the impugned order and the material available on record. 10. Father of the appellant executed a registered Will on 03.09.2013, whereby the said property was bequeathed equally in favour of the appellant and his minor grand-son Parth. Appellant's father imposed a condition in the Will that appellant was granted the right to sell the share of his minor son even before he would attain the age of majority for the purposes of education and upbringing of the minor child subject to condition that the sale deed must bear the signatures of the respondent as witness. Father of the appellant gave right to the appellant to sell the share of minor before he would attain the age of majority for the purposes of education and upbringing. The appellant made a statement before the learned Family Court as AW-1. He stated in his statement that he wanted to send minor Parth to Australia for studies. On a query made by the court, he stated that he had not got the passport prepared for Parth and had not taken Viza. He also admitted that higher education starts after 12th standard. At present, the minor Parth was studying in Class-III. The respondent in her statement before the learned Family Court stated contrary to the statement of the appellant. She stated that they wanted to mortgage the said property for loan to repair the said property to let out on rent. He also admitted that higher education starts after 12th standard. At present, the minor Parth was studying in Class-III. The respondent in her statement before the learned Family Court stated contrary to the statement of the appellant. She stated that they wanted to mortgage the said property for loan to repair the said property to let out on rent. So, the learned Family Court came to the conclusion that there was no need to sell the said property for the purpose of study. The learned Family Court in its order clearly observed that presently the education fees of minor Parth is Rs. 22,000/- per year and the appellant was earning Rs.3,00,000/- per year. So, he could bear the expenses of education of minor Parth. 11. We are of the considered opinion that the learned Family Court had not committed any mistake or error to reject the application of the appellant. The appeal being devoid of merit, is liable to be dismissed and accordingly the same is dismissed.