TUSHAR DEVENDRABHAI TRIVEDI Vs. STATE

JUDGEMENT

(1.) THE present appeal is preferred under Section 47 (e) of the Guardians and Wards Act, 1890 against the judgment and order dated 21 -03 -2006 passed by the Presiding Officer, Fast Track Court No. 2, Jamnagar in Civil Miscellaneous Application No. 99 of 2005 by which the learned Judge dismissed the application preferred by the appellant.

(2.) THE short facts giving rise to the present appeal are stated hereinbelow:

(3.) IT is submitted by learned Advocate Mr. P. V. Hathi for the appellant that the Trial Court has not considered the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956. The learned Advocate submitted that sub -section (4) of Section 8 gives power to the Court to grant permission to the natural guardian to sell the property in case of necessity or for any evident advantage to the minor. The learned Judge considered the documentary evidence, including the Will and the death certificate, and held that the deceased had given the property on the condition that the said property shall not be disposed of in any manner till the grandsons attain the age of 21 years. Thus, the last desire of the deceased seems to be that the property is to be kept intact and the same is not disposed of by sale, mortgage or in any manner till his grandsons attain the age of 21 years. The learned Judge committed error in not considering the provisions of Section 8 of the Hindu Minority and Guardianship Act in its true perspective while rejecting the application preferred by the appellant. The learned Judge ought to have used the discretion and imposed conditions on the appellant while granting the application for the disposal of the minors' interest in the property. The learned Judge ought to have taken into account the paramount consideration of the interest of the minors while deciding the application preferred by the appellant. Thus, the learned Advocate submitted that the appeal requires to be allowed and necessary permission be granted, as prayed for, by quashing and setting aside the judgment and order dated 21 -03 -2006 passed by the Presiding Officer, Fast Track Court No. 2, Jamnagar. The appellant be permitted to sell the Jamnagar property on such terms and conditions as mentioned in the application or on any other conditions which the Court may deem fit to impose on the appellant.