High Court
Case Details
CRP 85/2013 BEFORE HON’BLE MR.JUSTICE A.C. UPADHYAY JUDGMENT AND ORDER By filing this application, the petitioners have challenged the order da ted 2.2.2013 passed by the learned District Judge, Tinsukia, in Misc.(J) Case No .14/2013, whereby till appointment of guardian in respect of the minor’s interes t in the joint family property by a competent Court, the opposite parties were d irected to maintain status quo in respect of two third of share of land of Late Subhah Ch. Modi in respect of ’B’ Schedule land. 2. ollows: The facts leading to filing of this petition may be stated in brief as f
Legal Reasoning
A petition under Section 7 and 12 of the Guardians and Wards Act, 1890 was filed by Sri Shrawan Kumar Modi and Smti. Kavita Modi, on 4.12.2012, for appointing t hem guardian of their biological son, minor Sri Neeraj Modi. In the petition, it was stated that minor Neeraj Modi born on 29.9.1995, who was given on adoption to Subhash Chandra Modi (since deceased), who was the cousin of petitioner No.1 Sri Shrawan Kumar Modi and Sudha Modi (since deceased), who had no issue out of their wedlock. 3. According to the procedure the biological parents of the minor performed all social rituals according to their customs regarding adoption on 11.2.1996, which was followed by a Deed of Adoption being No.52 dated 3.2.1997 and since th en Neeraj Modi was residing with his adoptive parents as their son. Unfortunatel y, the adoptive mother Sudha Modi expired on 27.8.1997 and since then Neeraj Mod i was staying with his adoptive father, but unfortunately, Subhash Chandra Modi also expired on 12.11.2010. During his life time, after the death of his wife Su dha Modi, late Subhash Chandra Modi contacted second marriage with present O.P. No.1, Smti Sunita Devi Modi in the year 2000. After about six months of her marr iage with Subhash Chandra Modi, the Opposite Part No.1 brought her son Nikhil, b orn through her first husband Sri Ramesh Bansal and since then said Nikhil has b een residing with the Opposite party no.1 at the residence of Subhash Chandra Mo di at Modi Lohia Road, Tinsukia. The opposite party No.1 initially had been disc harging her duties properly towards the minor Neeraj Modi, however, soon after h er own son Nikhil joined, her behaviour changed towards minor Neeraj Modi. It ha s been alleged that she started to cause physical and mental torture upon the mi nor Neeraj and also started neglecting to look after him properly. Subhash Chand ra Modi to save the minor son from being tortured by the opposite party No.1, so metime in the year 2002 had to keep his son with the petitioners and since then the minor Sri Neeraj Modi has been staying with the petitioners. 4. At the time of his death Subhash Chandra Modi left several immovable pro perties, fully shown in Schedule (cid:28)A (cid:29) to the petition jointly with his brothers a nd sisters, who have been arrayed as opposite party Nos.2 to 4 in the petition. Late Subhash Chandra Modi during his life time also was earning about Rs.20,000/ - per month from his rented houses and premises, situated at Modi Lohia Road, Ti nsukia. But sometime after his demise, the opposite party No.1 started acting ad verse to the interest of the minor and started collecting all the rents and prof its of the rented premises and same has been appropriated by her for her own ben efit without providing a single penny for the benefit of the minor Neeraj Modi. It is also alleged that the opposite party No.1 in collusion with opposite party No.2 and 3, namely Sri Parsuram Modi and Sri Ashok Kumar Modi started construct ion of a multistoried commercial building on a plot of joint land. 5. Mr. G.N. Sahewalla, learned senior counsel appearing for the petitioners vehemently submitted that unless the share of the minor is protected until he a ttains majority, there is every likelihood of the share of the property of the m inor being mis-used by the respondents, therefore, prayed that a direction be is sued not to meddle with the property of the minor, until he attains majority or till his legal guardian is legally appointed. 6. Mr. K.N. Choudhury, learned senior counsel appearing on behalf of the re spondents pointed out that the petitioners are neither the appointed guardian of the minor nor they have any right to file the application on behalf of the mino r. The petitioners except being biological parents, they have no relationship w ith the minor. Learned senior counsel for the respondents submitted that the min or being a member of the HUF of his late adoptive father, would get his legitima te share in the family property and his interest in the family property would re main protected. Mr. K.N. Choudhury, learned senior counsel by referring to the decision 7. of the Hon’ble Supreme Court reported in (1996) 8 SCC 54 (Sri Narayan Bal and ot hers Vs. Sridhar Sutar and others), submitted that Karta or adult member of join t Hindu family can sell or dispose of joint family property involving un-divided interest of the minor of the of the family therein. As such , Section 8 of Hind u Minority and Guardianship Act, 1956, would not apply in respect of such sale o r disposal. 8. as follows - The Hon’ble Supreme Court in Sri Narayan Bal(Supra) (Para 5) observe is
Decision
5. (cid:28)With regard to the undivided interest of the Hindu minor in joint family pro perty, the provisions afore-culled are beads of the same string and need to be v iewed in a single glimpse, simultaneously in conjunction with each other. Each p rovision, and in particular Section 8, cannot be viewed in isolation. If read to gether the intent of the legislature in this beneficial legislation becomes mani fest. Ordinarily the law does not envisage a natural guardian of the undivided i nterest of a Hindu minor in joint family property. The natural guardian of the p roperty of a Hindu minor, other than the undivided interest in joint family prop erty, is alone contemplated under Section8, 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 ord inarily 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 prop erty 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 prese rved. This is the legislative scheme on the subject. Under Section 8 a natural g uardian 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 b e no natural guardian for the minor’s undivided interest in the joint family pro perty, as provided under Sections 6 and 12 of the Act, the previous permission o f the Court under Section 8 for 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 undivi ded interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered. (cid:29) 9) On perusal of the order passed by the learned trial Court, it appears th at interest of the minor’s share in the joint family property is involved in the present petition and a petition has already been filed under Section 7 and 12 o f the Guardians and Wards Act. Further more, it appears that there is no dispute that the opposite parties have undertaken construction of a multistoried buildi ng on a part of (cid:28)B (cid:29) schedule land. Learned senior counsel for the respondents su bmitted that the opposite parties have not denied share of Late Subhash Ch. Modi to the minor. As pointed out in the affidavit dated 29.1.2013 they have underta ken not to make any construction over two third shares of Late Subhash Ch. Modi in respect of (cid:28)B (cid:29) schedule land, which would mean as observed by the learned Cou rt below only 66.66% of the share of Late Subhash Ch. Modi. 10. The paramount consideration being interest of the minor in the property, petitioners herein filed the petition only to protect such rights. In the prop erty of Subhash Ch. Modi, the share of Neeraj would be 50% of the full share of late Subhash Ch. Modi and other 50% will be share of the second wife of Late Sub hash Ch. Modi. 11. On careful consideration of the rival submissions made on behalf of the petitioners as well as the respondents, I do not find any reason to interfere wi th the impugned order dated 2.2.2013 passed by the learned District Judge, Tinsu kia, in Misc. (J) Case No. 14/13. 12. Accordingly, the petition filed on behalf of the petitioners challenging the impugned order is hereby rejected.