Smt Chandrakala Singh & Ors. v. State of U.P.

consent of learned counsel for the parties.

The instant appeal has been filed under Section 8(5)(c) of the Hindu Minority & Guardianship Act, 1956 (hereinafter referred to as 'the Act of 1956') challenging the order dated 06.11.2023 whereby the learned Additional District Judge, Court No.14, Varanasi has dismissed Civil Misc. Case No.351 of 2022 (Smt. Chandrakala Singh and others vs. State of U.P.) filed by the appellants. The said case was, in fact, in the nature of an application under Section 8(2) of the Act of 1956 whereby the appellant No.1 had sought permission to sell the land bearing No.1890 to the extent described in the application. It appears from record that the State of U.P. objected to the application on the ground that the appellant No.1 having two minor children, if permission is granted to sell the property, it would adversely affect the interest of minors as regards their education and marriage in future.

Learned Additional District Judge has, after considering the respective ages of the two minor children, who are appellants No 2 and 3 and observing that the appellant No.1 has failed to lead any evidence as to how much fees she was depositing in the school in relation to education of her children nor had she disclosed the details of her property, did not find it appropriate case for granting permission.

Pursuant to previous orders passed by this Court in the instant appeal, the appellants have come up with a clear stand that insofar as other property covered by Khasra No.638 is concerned, the appellant No.1 has 1/3th share. It is not disputed that the husband of appellant No.1 died on 19.04.2015 and the property which is proposed to be sold was purchased by the appellant No.1 out of her streedhan in her name as well as in the names of her minor children on 19.08.2016. The application itself mentions that after the death of her husband, the appellant No.1, in order to arrange funds for education of her minor children and to secure their interest in every manner, proposes to sell the property purchased by her and that the sale consideration would be utilized for the welfare of the children.

Learned counsel for the appellants submits that appellant No.1 is not having any other source of income and, therefore, she is facing hardships as regards maintaining her minor children and since she is getting good sale consideration in relation to the sale of the aforesaid property, permission for selling the property and utilizing the sale consideration for the welfare of minor children ought to have been granted.

Learned Standing Counsel, on the other hand, submits that once the appellants failed to establish by cogent evidence before court below as to how much expenses appellant No.1 was incurring on the education and no details of other properties were disclosed, court below was justified in rejecting the application.

Having heard learned counsel for the parties, I find that permission to sell the property in which a minor has share can be granted by the Court under the aforesaid provision. The entire law with regard to such permission is well settled that welfare of minor children is of paramount consideration not only in the matters of custody but also in those cases where natural guardian of the minor proposes to sell the property, in which, the minor has share and, under such circumstances, only thing which is to be considered is as to whether the sale consideration would be utilized for the welfare of the minor or not.

In the instant case, though the Court finds that evidence in support of the application was somewhat lacking, however, once pursuant to the order passed in the instant appeal, sufficient details have come on record to the effect that in other property, the appellant No.1 is having only one-third share and she does not propose to sell the same as, according to learned counsel for the appellants, she is not getting proper value of the property, there appears to be no factual or legal hurdle, in case the permission to sale the purchased property is granted. At the same time, it is also observed that appellant No.1 is bound by the recitals contained in her application itself that the sale consideration would not be misused and would be utilized for the welfare of the children.

There is nothing on record to indicate that appellant No.1 performed re-marriage or has done anything which would go against the interest of the minor children and she is infact taking care of their education and well-being.

In view of the above discussion, the order impugned dated

06.11.2023 passed by the learned Additional District Judge, Court No.14, Varanasi in Civil Misc. Case No.351 of 2022 (Smt. Chandrakala Singh and others vs. State of U.P.) cannot sustain and is hereby set aside.

The appeal is allowed.

The Civil Misc. Case No.351 of 2022 is also allowed.

The appellant No.1 is granted permission to sell the property described in the application as natural guardian of her minor children.

It is directed that she will deposit at least 40% of the sale consideration in a Fixed Deposit Account and shall submit its proof before the District Judge, Varanasi within two months from the date of sale deed, failing which, the sale may be held to be invalid.

The Fixed Deposit shall remain invested till the minors attain the age of majority.

Remaining 60 % may be spent by appellant No.1 for the welfare of minor children. Order Date :- 18.10.2024 Jyotsana