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HIGH COURT OF DELHI
FAO No. 155/2013 25th February, 2014 JAGJEET KAUR ......Appellant
Through: Mr. Vineet Sharma, Adv.
Through: Ms. Megha Bharara, Adv. for Ms. Zubeda Begum, Adv.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This first appeal is filed under Section 8(5)(e) of the Hindu Minority and Guardianship Act, 1956 against the judgment of the court below dated 19.12.2012 which has dismissed the petition which sought permission to sell the two fifth of the half undivided share of the minor sons of the appellant/petitioner in the back portion of the first floor of property bearing no.10/61, Subhash Nagar, New Delhi.
2. The court below has dismissed the petition by observing that with respect to an undivided share in an immovable property, no permission is 2014:DHC:1067 required. This is so stated in paras 8 to 10 of the impugned judgment and which read as under:-
3. Learned counsel for the appellant states that appellant will have difficulty before the sub-Registrar at the time of seeking to register the transfer of interest in the immovable property, and therefore, the present appeal is filed.
4. In my opinion, the court below has erred in dismissing the petition by observing that no permission is required inasmuch as, permission to sell the undivided share of a minor is very much required as per Section 8 of the Hindu Minority and Guardianship Act, 1956. When the provision of the Hindu Minority and Guardianship Act refers to not appointing a guardian for the undivided share of a minor in a joint family property, reference is made to Hindu undivided family property, and not to undivided interest in a property which is a co-ownership property and not a HUF property. In a case of undivided interest in a co-owned property permission of the court would be required under Section 8 of the Hindu Minority and Guardianship Act.
5. In the present case, the requirement for selling of the property is for upkeep, maintenance and educational expenses of the minor and which facts show sufficient necessity for selling of the property, more so because the appellant-petitioner is a natural mother of the minors Master Avinoor Singh and Master Gurjot Singh and would sufficiently protect the interest of the minors.
6. In view of the above, appeal is allowed and the appellant-petitioner is granted permission to sell the shares of the minors in the back portion of the first floor of the property bearing no.10/61, Subhash Nagar, New Delhi. The amount which is received on account of sale of the property will either be immediately and directly invested in purchase of an immovable property or will be put in a fixed deposit in a nationalized bank and only interest thereof will be used for upkeep, maintenance, educational expenses and other necessary expenses of the minors. In case, there is need to withdraw a lumpsum amount, whole or part of the fixed deposit, then on such a necessity arising, petitioner can approach the competent court and which will examine such application as per the facts as found.
7. The appeal is allowed and disposed of in terms of the aforesaid observations. Parties are left to bear their own costs. Petitioner will give an acceptable surety bond-cum-undertaking to the Guardianship Court in terms of this judgment before selling the shares of the minors in the aforesaid immovable property.
FEBRUARY 25, 2014 VALMIKI J. MEHTA, J. ib