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2019 DIGILAW 983 (GUJ)

Shashiben v. State of Gujarat

2019-10-18

V.M.PANCHOLI

body2019
JUDGMENT : V.M. Pancholi, J. 1. Rule. Learned AGP Mr. K.M. Antani waives service of notice of rule for respondents. 2. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioners have prayed for following reliefs, "A. xxx xxx xxx B. That this Hon'ble Court be pleased to quash and set aside the order dated 24.12.2018 passed by Additional Secretary, Revenue Department (Appeals) Ahmedabad, rejecting Revision Application No. MVV/HKP/NVS/50/2018 and in turn confirming the order dated 21.06.2018 passed by Collector, Navsari in CH/RTS/Revision Case No. 135/17 in turn confirming the order dated 29.06.2017 passed by the Deputy Collector, Navsari rejecting RTS/Appeal case No. 262/15 in turn confirming the order passed by the In-charge Mamlatdar (Land), Jalalpore cancelling Revenue Entry No.2302 dated 09.07.2012 and be pleased to direct the Mamlatdar, (Land), Jalalpore to certify the revenue entry no. 2302 mutated with respect to land bearing Block No.1126 situated in village-Tavdi, Taluka-Jalalpore, District-Navsari. C. Pending admission and/or final disposal of the present petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the Judgment and Order dated 24.12.2018 passed by the Additional Secretary, Revenue Department (Appeals) Ahmedabad, allowing Revision Application No. MVV/HKP/NVS/50/2018. D. xxx xxx xxx. E. xxx xxx xxx." 3. The facts of the present case are as under, 3.1. The subject land is the land bearing Block No. 1126 situated at Village: Tadvi, Taluka: Jalalpore, which was of the ownership of one Shashikant Jagubhai Patel and his relatives. The said Shashikant Jagubhai Patel had purchased the subject land from its owners viz., Shailen Shantilal Bhansali and for the said transaction, entry no. 2020 came to be mutated in the revenue record on 05.02.2008. Thereafter, the name of heirs of Shashikant Jagubhai Patel were also mutated with regard to the subject land and entry no. 2156 came to be mutated on 29.06.2009. Out of three legal heirs of purchaser, Shashikant Jagubhai Patel, one Joban Shashikant Patel was minor at the relevant point of time and, therefore, he was represented by his father, Shashikant Jagubhai Patel. 3.2. The subject land was purchased by the petitioners from the owners of the subject land by registered sale deed, which was executed on 20.08.2010. The mutation entry no. 2302 was posted in the revenue record on 17.04.2012. 3.2. The subject land was purchased by the petitioners from the owners of the subject land by registered sale deed, which was executed on 20.08.2010. The mutation entry no. 2302 was posted in the revenue record on 17.04.2012. However, the grievance of the petitioner is that the Mamlatdar, Jalalpore did not certify the said entry on the ground that one of the co-owners, Joban Shashikant Patel was a minor and permission of the competent court was not obtained to sell his share and, therefore, the sale deed was not executed in accordance with law. 3.3. The petitioners, therefore, filed RTS Appeal before the Deputy Collector challenging the order passed by the Mamlatdar. The Deputy Collector rejected the said Appeal vide order dated 29.06.2017. The petitioners, therefore, filed Revision Application before the Collector. During the pendency of the Revision Application, the said Joban Shashikantbhai Patel filed an affidavit in support of the petitioners stating that the land was sold by his family members including his father and his father had executed the sale deed on his behalf as his natural guardian and the said sale deed is also acceptable to him. It was also stated that he is not inclined to challenge the sale deed executed in favour of the petitioners. Despite the fact of given consent by the said Joban Shashikant Patel, the Collector rejected the Revision Application filed by the petitioners. The petitioners, therefore, filed Revision Application before the respondent-SSRD and the respondent-SSRD has also rejected the Revision Application. Therefore, the present petition is filed. 4. Learned advocate for the petitioners has assailed the impugned orders passed by the respondent authorities mainly on the ground that the respondent authorities ought to have considered the fact that the petitioners have purchased the subject land by registered sale deed and the sellers have no objection if the names of the petitioners are mutated in the revenue record. It is further contended that the revenue authorities have misinterpreted the provision contained in Section 29 of the Guardian & Wards Acts, 1890 (hereinafter referred to as "said Act"). Learned advocate has referred to the provision contained in Section 29 of the said Act. It is further contended that the revenue authorities have misinterpreted the provision contained in Section 29 of the Guardian & Wards Acts, 1890 (hereinafter referred to as "said Act"). Learned advocate has referred to the provision contained in Section 29 of the said Act. After referring to the same, it is submitted that when the registered sale deed was executed by the father of minor Joban Shashikant Patel, who is natural guardian of the minor and not the guardian appointed by or under the order of the Court and, therefore, no such permission of the Court was required. It is, therefore, contended that the impugned order passed by the respondent authorities be set aside. 5. Learned advocate, Mr. Bharda has placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Sri Narayan Bal & Ors. Vs. Sridhar Sutar & Ors., reported in AIR 1996 SC 2371 . Learned advocate, therefore, urged that the impugned orders be quashed and set aside. 6. On the other hand, learned AGP Mr. Antani has opposed this petition and referred to the reasoning recorded by the respondent authorities. It is submitted that when the sale deed was executed in favour of the petitioners without obtaining permission from the competent authority, no error is committed by the respondent authorities while cancelling the entry in question. It is, therefore, urged that the present petition be dismissed. 7. This Court has considered the submissions canvassed by learned advocates appearing for the parties. This Court has also considered the material placed on record. It transfers from the record that the petitioners have purchased the subject land by registered sale deed, which was executed by one Shashikant Jagubhai Patel and his legal heirs. The sale deed was executed on 20.08.2010, which is duly registered before the competent authority. At the time of execution of the sale deed, one Joban Shashikant Patel was minor. It is reflected from the record that as a natural guardian, the father of the said minor has executed the sale deed on his behalf also and after attaining the age of majority, the said Joban Shashikant Patel has also given consent stating that if the names of the petitioners are mutated in the revenue record, he has no objection. 8. 8. Section 29 of the Act reads as under, Section 29: Limitation of powers of guardian of property appointed or declared by the Court-Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or (b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor. 9. Thus as per the aforesaid provision, there is an embargo raised against the sale of property of minor by guardian appointed by the Court of Law. However in the present case, the guardian of minor viz., Joban Shashikant Patel was not appointed by concerned Court and, therefore, the aforesaid provision would not be applicable. 10. At this stage, the decision upon which reliance is placed by learned advocate for the petitioners is required to be kept in view. In case of Sri Narayan Bal (supra), the Hon'ble Supreme Court has held in Paragraph Nos. 5 and 6 as under, "5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provisions, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislative in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 to 12 of the Act, the previous permission of the Court under Section 8 of disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered. 6. In the instant case the finding recorded by the courts below is that Jagabandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of joint Hindu family, as supporting executants. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, section 8 of the Act can be of no avail to the appellant's claim to nullify the sale." 11. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, section 8 of the Act can be of no avail to the appellant's claim to nullify the sale." 11. Thus from the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that the previous permission of the Court before disposing the property, is not required when the joint Hindu family property, in which, minor had undivided share, has been sold or disposed of by the karta. Thus in the aforesaid facts of the present case, when the sale deed was executed by Shashikant Jagubhai Patel himself as owner and other family members have also executed sale deed as co-owners and further when Shashikant Jagubhai Patel has executed the sale deed as a natural guardian of minor, Joban Shashikant Patel, permission of the concerned court is not required and, therefore, the respondent authorities have committed an error while cancelling the mutation entry in question. 12. In view of the aforesaid discussion, the present petition stands allowed. The impugned order dated 24.10.2018 passed by the respondent-SSRD in Revision Application No. MVV/HKP/NVS/50/2018, the order dated 21.06.2018 passed by the respondent-Collector, Navsari in CH/RTS/Revision Case No. 135/2017, the order dated 29.06.2017 passed by the respondent-Deputy Collector, Navsari in RTS/Appeal No. 262/2015 and the order dated 09.07.2012 passed by the respondent-Mamlatdar are hereby quashed and set aside. Therefore, necessary effect shall be given with regard to the mutation entry no. 2302 dated 09.07.2012 in the revenue record. Rule is made absolute to the aforesaid extent.