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Madhya Pradesh High Court · body

2019 DIGILAW 73 (MP)

Sandhya v. Ku. Ankita

2019-01-22

G.S.AHLUWALIA

body2019
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 20.8.2015 passed by the Civil Judge, Class-I, Seonda, District Datia in Civil Suit No. 7A/2015, by which one Hari Singh has been appointed as guardian of respondents No. 1 and 2. 2. Respondents No. 1 and 2 have filed a suit for declaration of title through their next friend Hari Singh to the effect that their father / husband of the petitioner has expired and the petitioner is trying to dispose of the property, which has fallen to the share of respondents No. 1 and 2 and in order to adversely affect the interest of respondents No. 1 and 2, the petitioner has already executed a sale deed in respect of half of the property on 26.2.2014 and thus, it was prayed that it be declared that respondents No. 1 and 2 have share and title in the property in dispute, as well as also permanent injunction. 3. It appears that the petitioner filed an application before the trial court alleging that the interest of Hari Singh is detrimental to the interest of respondents No. 1 and 2, therefore, he should not be permitted to pursue the suit on behalf of respondents No. 1 and 2 as their guardian and the suit be dismissed (The copy of the application has not been placed on record but was made available to the Court). The said application was opposed by Hari Singh. The trial Court by order dated 20.8.2015 has permitted Hari Singh to continue to pursue the suit as guardian of respondents No. 1 and 2. 4. It is submitted by the counsel for the petitioner that earlier the petitioner had filed a writ petition No. 7705/2016 challenging the order dated 20.8.2015 along with the order which was subsequently passed by the trial Court on 23.9.2016, however, in view of the objection raised by the respondents, the said writ petition was withdrawn with liberty to assail the order dated 20.8.2015. It is further submitted that the Writ Petition No. 7705/2016 was entertained by this Court and interim orders were passed and the further proceedings in the trial were stayed, therefore, there is no delay in filing the petition. It is further submitted that the Writ Petition No. 7705/2016 was entertained by this Court and interim orders were passed and the further proceedings in the trial were stayed, therefore, there is no delay in filing the petition. It is further submitted that respondents No. 1 and 2 as well as the petitioner has also filed a suit against Hari Singh and thus, it is clear that the interest of Hari Singh is contrary and detrimental to the interest of respondents No. 1 and 2 and, therefore, he should not be allowed to prosecute the suit as the next friend/guardian of respondents No. 1 and 2 and accordingly, the suit may be dismissed. 5. Heard learned counsel for the parties. 6. The present suit has been filed by respondents No. 1 and 2 on the ground that they have a share and right in the property in dispute and the petitioner is selling those properties without taking permission from the Court and without there being any legal necessity and, therefore, the petitioner be restrained from selling the property and the share of respondents No. 1 and 2 may be declared. Thus, the interest of respondents No. 1 and 2 is of paramount consideration. The trial court while passing order dated 20.8.2015 had held that since Hari Singh is the elder brother of the father of respondents No. 1 and 2, therefore, his interest cannot be treated as detrimental to the interest of respondents No. 1 and 2. Merely because the petitioner has filed a suit against Hari Singh would not ipso facto mean that the interest of Hari Singh is detrimental to the interest of respondents No. 1 and 2. The petitioner has levelled several allegations against Hari Singh, but has not impleaded him as a party to this petition. Accordingly, this Court does not find any reason to interfere with the order dated 20.8.2015 passed by the trial court. The petitioner has levelled several allegations against Hari Singh, but has not impleaded him as a party to this petition. Accordingly, this Court does not find any reason to interfere with the order dated 20.8.2015 passed by the trial court. However, the trial Court is directed that as the suit has been filed by respondents No. 1 and 2 for seeking protection of their title in the property, therefore, whenever it appears to the trial court that Hari Singh is acting contrary to the interest of respondents No. 1 and 2, then the trial Court shall suo motu initiate proceedings for appointment of another guardian or next friend of respondents No. 1 and 2 till they attain their age of majority. 7. With aforesaid observations and directions, the petition is finally disposed of. Abhishek Bindal for petitioner; Vivek Jain, Government Advocate for respondent No. 4/State.