Smt. Preeti Arora vs Subash Chandra Arora and another
Misc., Case No. 276 of 2022
Smt Preeti Aroa, Appellant Versus Subash Chandra Arora And Another, Respondent

Brief Facts Of The Case:
That the husband of the appellant ( Smt. Preeti Arora ) possessed ½ share in the double-storied property having an area of approx. 144 square meters in Saharanpur. The remaining half share in the property belonged to the father-in-law of the appellant. The husband of the appellant (Smt. Preeti Arora) died on 17.03.2021 leaving behind 5 heirs i.e. widowed wife ( appellant), mother, and 3 minor daughters aged 12 years and 2 twins aged 8 years each. As a result, the property of the husband was inherited equally (1/5th share) by all the legal heirs. That on 5.08.2021, the father-in-law of the appellant executed a gift deed in favor of the appellant out of his own will.

Later on, the mother-in-law of the appellant also executed and registered a gift deed by transferring her 10% or 1/5th share in the property in the name of Smt. Preeti Arora (appellant). As a result, the appellant acquired a total of 70% share in the joint family property and the remaining 30% was inherited by the 3 minor daughters of the appellant. All the family members of the appellant ( including the mother and father in law , and 3 minor daughters) were residing in Punjab and the property at Saharanpur was not under use.

Therefore, It was becoming difficult for the appellant to maintain the property at Saharanpur as she was residing in Zeerakpur, Punjab for her job and competition of education of her 3 minor daughters. Consequently, the appellant filed a petition to seek permission from the court under sec.8(2) of the Hindu minority and Guardianship Act 1956 to sell the property which incorporates the minor's undivided interest in the joint family property for the benefit of the minor daughters.

Decision By Additional District Judge, Saharanpur:

The additional district judge, Saharanpur rejected and dismissed the petition filed by the appellant in the court seeking permission to sell the property in Saharanpur for the benefit of the minor and the minor's undivided interest in the intestate because the appellant has failed to provide details regarding the valuation of the property she is going to sell and information about the property she is going to purchase in Punjab. The court also passed an impugned order dated 04.10.2023 in which the court stated that the property being located in a posh area could be rented out and the rental income could be resorted for the benefit of the minor.

Legal Issues:

• Whether the decision passed by the district court was valid or not?
• Whether the appellant being the adult member required prior permission from the court or not under Section 12 of the Hindu Minority and Guardianship Act, 1956?
• Whether permission by the guardian under Section 8 of the Hindu Minority and Guardianship Act, 1956 for the sale of immovable property should be read with Section 12 or not.

Arguments by Plaintiff:

The learned counsel of the appellant, Shri Arvind Srivastava, argued that the court has rejected and dismissed the plaint on insubstantial grounds. The appellant has well described the circumstances due to which they want to sell out their property. Moreover, the respondent parties have already consented to the sale of the property as per the desire of the plaintiffs. That the petition could not be rejected on the ground that the future prospects of the property are not disclosed.

Arguments by Respondent:

The learned counsel of the respondent, Shri Komal Mehrotra, stated that the respondent parties have already gifted their share in the property by way of execution of the gift deed and consented to the sale of the property as per the desire of the appellant. That the respondent party has no objection if the impugned order of the court dated 04.10.2023 is set aside.

Decision by Allahabad HC:

Hon'ble Justice Ashutosh Srivastava delivered the judgment that the impugned order passed by the district court was invalid and liable to be set aside. The court allowed the applicants to move an application (paper no. 4-B). The court read the facts and circumstances of the case with Sections 6, 8, and 12 of the Hindu Minority and Guardianship Act, 1956. According to Section 6 of the Act, the father is the natural guardian of a minor legitimate son and unmarried daughter.

After the father, the mother is the natural guardian. Sec 8 of the respective act immunizes the natural guardian to deal with the property of the minor ( excludes the minor's undivided interest in joint family property). It also states that for the purpose of the sale, and mortgage of the property the guardian needs prior approval from the court. Sec 12 of the act states that in case the property is handled by an adult member of the house, the court shall not appoint a guardian for the minor's undivided interest in that property.

That court was of the view that the adult member as prescribed by the act does not restrict its meaning necessarily to a karta or an adult male member of the house. Thus, the applicant does not need prior permission from the court is order to sale the property which comprises minors' undivided interest.

Authors Perspective On The Judgement:
The author doesn't agree with the judgment passed by the HC . It clearly states that the adult member does not require prior approval of the court to deal with property that involves the minor's undivided interest. Like a natural guardian needs the approval of the court for the purpose of sale, gift, and mortgage of a minor's property to protect the interest of the minor, the same should be done in all cases. Else, it will inflict suffering in the interest of the minor. The could shall give permission to the guardians or the adult members defined under sec8 0r sec 12 for the evident advantage and necessity in order to secure the minor's interest.

Conclusion
IN the present case, the HC of Allahabad set aside the impugned order dated 04.10.2023 passed by the additional district judge, Saharanpur. The court declared that the grounds on which the district court dismissed the appeal were invalid and insubstantial. The court also defined the word adult member under sec 12 of the act and stated that the appellant ( Smt. Preeti Arora) can sell out the property and does not require prior permission of the court.

End Notes:

1. Neutral Citation No. - 2024:AHC:42478