Full Text
HIGH COURT OF DELHI
Date of Decision: 27th May, 2019
RITU GARG & ANR. ..... Plaintiffs
Through: Mr. L.K. Singh and Raj Kumar, Advs.
Through: Mr. Apoorv Khatar, Adv. for D-6.
JUDGMENT
1. This “Petition under Section 8 of the Hindu Minority and Guardianship Act, 1956, for granting permission to transfer by sale the undivided share of petitioner no.2 (minor) in the immovable built up property bearing no.85, Anand Lok, New Delhi measuring 393 sq. yds.” is filed as a suit, pleading (i) that the plaintiff no.1 Ritu Garg is the mother and natural guardian of the plaintiff no.2 Tara Garg aged about eleven years; (ii) that the husband of the plaintiff no.1 and father of the plaintiff no.2 died on 16th January, 2013; (iii) the defendants no.2&3 Nikhil Garg and Neha Garg are the son and daughter respectively of the plaintiff no.1 and brother and sister respectively of the plaintiff no.2; (iv) that the defendants no.4&5 Ashutosh Garg and Atul Garg are the brothers of the husband of the plaintiff no.1; (v) that Brig. Manohar Lal Garg was the owner of the property no.85, Anand Lok, New Delhi and died intestate on 18th December, 2014 leaving, Sudha Garg as his widow, defendants no.4&5 as his sons and the plaintiffs and defendants no.2&3 as the heirs of his pre-deceased son; the widow of Brig. Manohar Lal Garg also died on 8th August, 2015; (vi) that thus the plaintiff no.1 and her children i.e. 2019:DHC:2880 plaintiff no.2 and defendants no.2&3 together have 1/3rd undivided share in the property and each of the defendants no.4&5 have 1/3rd undivided share in the property; (vii) that the minor, plaintiff no.2 has 1/4th out of 1/3rd share i.e. 1/12th share in the said property; (viii) that the plaintiff no.1 along with her children plaintiff no.2 and defendants no.2&3 is permanently settled at Singapore; (ix) that the plaintiff no.2 is studying in a school in Singapore;
(x) that the plaintiffs and the defendants no.2 to 5 have decided to sell the property aforesaid and defendant no.6 Vikas Srivastava has agreed to purchase the property for Rs.22 crores and the plaintiffs and the defendants no.2 to 5 have entered into an Agreement to Sell dated 5th October, 2018 with the defendant no.6; and, (xi) that the plaintiff no.1 is agreeable to deposit the sale proceeds of the share of the plaintiff no.2 in a Fixed Deposit Receipt in the name of the plaintiff no.2.
2. The petition/suit came up first before the Joint Registrar of this Court on 27th November, 2018 when notice thereof was ordered to be issued. The order dated 11th January, 2019 records that the defendants no.2 to 6 had been served. The order dated 8th March, 2019 records that the defendant no.1 State had also been served but none appeared on its behalf.
3. The defendants no.2 to 5 have filed a written statement supporting the petition. The defendant no.6 / purchaser also supports the petition.
4. The plaintiffs filed IA No.5298/2019 for direction to the defendant no.1 to submit a report of valuation of the property and the said application was allowed on 10th April, 2019 and the Sub Divisional Magistrate, Hauz Khas, New Delhi has vide Report dated 3rd May, 2019 reported the valuation of the property as per prescribed circle rates as Rs.11,15,64,720/-.
5. The suit came up before this Court first (till then it was pending before the Joint Registrar) on 20th May, 2019 when it was prima facie observed that the suit, on the averments therein was not maintainable before this Court and the jurisdiction was exclusively of the Guardianship Judge in the District Court. Attention of the counsel for the plaintiffs was invited to Section 8(5) of the Hindu Minority and Guardianship Act, 1956 read with Section 4 and 4A of the Guardians and Wards Act, 1890.
6. On request of the counsel for the plaintiffs, the hearing was adjourned to 22nd May, 2019. On 22nd May, 2019 again, on request of the counsel for the plaintiffs the hearing was adjourned to 27th May, 2019. The counsel for the plaintiffs has been heard.
7. Section 8 titled „Powers of natural guardian‟ of Hindu Minority and Guardianship Act, 1956 is as under:- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court,— (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in subsection (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under subsection (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular— (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof. (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court. (6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.” (emphasis added)
8. Section 29 of the Guardians and Wards Act referred to in Section 8 supra is as under:-
9. Section 29 of the Guardians and Wards Act as aforesaid provides for previous permission of the Court. Section 4(5) of the Guardians and Wards Act defines „Court‟ as meaning:- “(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or (b) where a guardian has been appointed or declared in pursuance of any such application-
(i) the court which, or the court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or.
(c) in respect of any proceeding transferred under section 4A, the Court of the officer to whom such proceeding has been transferred;”
10. However, Section 4(4) is as under: “(4) “District Court” has the meaning assigned to that expression in the Code of Civil Procedure, 1882 (14 of 1882), and includes a High Court in the exercise of its ordinary original civil jurisdiction”
11. It is also deemed appropriate to hereunder set out Section 4A. The same is as under: “4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers - (1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorize the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section. (2) The Judge of a district court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under subsection (1). (3) The Judge of a district court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer. (4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian.”
12. The counsel for the plaintiffs, at the outset contends that he had before filing this suit, approached the District Judge only but the District Judge held that since the immovable property, for sale of which permission was sought, was of a value in excess of more than the maximum pecuniary jurisdiction of the District Judge, he would not have jurisdiction and the jurisdiction is of the High Court. However the counsel for the plaintiffs, on being asked to show the order, has handed over the order dated 23rd October, 2018 of the District & Sessions Judge (South-East), Saket Courts, New Delhi and which shows the counsel for the plaintiffs to have withdrawn the suit/petition, to file the same in the High Court “keeping in mind the valuation for the purposes of jurisdiction”. The counsel for the plaintiffs of course contends that he so withdrew the petition on the learned District Judge informing him that he did not have jurisdiction.
13. I only wish the learned District Judge, if so informing the counsel for the plaintiffs, had also given his reasons therefor. It is also inexplicable why the counsel for the plaintiffs, if of the belief that the District Judge had jurisdiction, instead of satisfying the District Judge with respect thereto and inviting a finding thereon, meekly withdrew the petition. Owing to the same, this Court has been deprived of the reasons which prevailed for such withdrawal of the petition.
14. I may also record that according to the plaint, the share of the minor plaintiff no.2 in the property of the total value of Rs.22 crores is 1/12th i.e. of Rs.1.83 crore which is less than the maximum pecuniary jurisdiction of Rs.[2] crores of the District Judge. Permission of the District Judge was required only for sale of the share of the minor and thus only the valuation thereof would determine the jurisdiction and not the value of the remaining share in the property and for transacting wherewith no such permission was necessary.
15. The counsel for the plaintiffs, to justify the maintainability of the petition as a suit, in this Court has referred me to:
(i) Sathir Singh Vs. Rajbir Singh AIR 1954 P&H 274 (DB) – therein a petition under Section 3 of the Guardians & Wards Act, for appointment as guardian of person and property of minor, was filed before the Circuit Bench of the High Court of Punjab at Delhi, owing to the property of the minor being at Delhi. In the written statement, preliminary objection relating to jurisdiction was taken inter alia on the ground that the Circuit Bench of the High Court of Punjab at Delhi had no ordinary original civil jurisdiction in guardianship matters. The petitioners relied upon Clause 12 of the Letters Patent dated 31st March, 1919 under which the High Court at Lahore was constituted and which under the provisions of the High Courts (Punjab) Order of 1947, governed the High Court of Punjab. It was noticed, (i) that vide Section 4(4) of the Guardians and Wards Act, District Court included a High Court in exercise of its ordinary original civil jurisdiction;
(ii) however no clause in the Letters Patent of the Lahore
High Court expressly conferred any powers of ordinary original civil jurisdiction, as occurred in the Letters Patent of the High Court of Calcutta, Bombay, Madras in which ordinary original civil jurisdiction was conferred on those Courts; (iii) there is nothing in the Guardians and Wards Act which gives ordinary original jurisdiction to the High Court to deal with petition filed under the Act; and, (iv) thus the petition did not lie in the Circuit Bench of the Punjab High Court at Delhi and had to be first instituted in the District Court.
(ii) Bakshi Lochan Singh Vs. Jathedar Santokh Singh AIR
1971 Delhi 277 (DB) – this was a suit in the High Court of Delhi under Section 92 of the CPC. The contention of the defendant was that the suit did not lie in the High Court, even though valuation thereof had been pleaded to be above the then minimum pecuniary jurisdiction of the High Court. Reliance was placed on Section 24 of the Punjab Courts Act, 1918 which provided that the Court of the District Judge shall be deemed to be the District Court or the Principal Civil Court of original jurisdiction in the District Court. It was held that, (a) a change was brought about by the Delhi High Court Act, 1966, Section 5(2) whereof vested ordinary original civil jurisdiction in the High Court in civil suits the value of which exceeded then Rs.50,000/-; (b) since the words “every suit” had been used and a proceeding under Section 92 qualifies as a suit and the plaintiffS had valued it above Rs.50,000/-, the proceeding would lie before the High Court; (c) after the coming into force of the Delhi High Court Act, the High Court had become the principal civil Court of original jurisdiction with respect to every suit value of which exceeded Rs.50,000/-; and, (d) owing to the nonobstante clause in Section 5(2) of the Delhi High Court Act, Court of the District Judge has ceased to remain the principal civil court of original jurisdiction with respect to any suit value of which exceeded Rs.50,000/-.
(iii) James Francis Dillon Vs. Holy Cross Social Service
Centre 1985 SCC OnLine Del 28 – this was a petition under Sections 7 and 26 of the Guardians and Wards Act. At the stage of admission of the petition itself, doubt was raised as to the jurisdiction of the High Court to entertain the petition. It was held that, (a) under Section 4(4) of the Guardians and Wards Act, District Court includes a High Court in the exercise of its ordinary original civil jurisdiction; (b) Delhi High Court was constituted under the Delhi High Court Act, 1966; (c) the Delhi High Court has ordinary original civil jurisdiction in civil suit, the value of which exceeds Rs.[1] lac (then); (d) the petition under Sections 7 and 26 of the Guardians and Wards Act did not fall in the said category; (e) it was thus required to be seen what was the jurisdiction exercised by the High Court of Punjab and for which one has to fall back upon the Letters Patent constituting the High Court of Adjudicature at Lahore and which had been interpreted in Sathir Singh supra and it had been held that the Punjab High Court did not have any ordinary original civil jurisdiction to entertain the petition under the Guardians and Wards Act; (f) extraordinary original jurisdiction of the High Court cannot be clubbed to the ordinary original civil jurisdiction. It was thus held that the Delhi High Court had no ordinary original civil jurisdiction to entertain a petition under Sections 7 and 26 of the Guardians and Wards Act.
(iv) R.P. Sachdeva Vs. The State AIR 1986 Delhi 178 – the same Hon‟ble Judge (Justice D.P. Wadhwa) who had pronounced James Francis Dillon supra, in this case held (i) that a petition for grant of succession certificate under Sections 371(2)(bb) and 300 of the Indian Succession Act, 1925 has to be filed in the Court of the District Judge and not before the High Court of Delhi; (ii) that the High Court of Delhi is not a principal Civil Court of original jurisdiction; and, (iii) that the limited purpose for which Section 5(2) of the Delhi High Court confers ordinary original civil jurisdiction and impliedly ousts the corresponding jurisdiction of the District Judge, is in suits the value of which exceeds Rs.50,000/- and owing thereto the High Court does not become the principal Court of ordinary original civil jurisdiction with respect to all matters of the said value including matter in which testamentary and interstate jurisdiction is invoked so as to divest the District Judge of the jurisdiction to deal with such matters.
(v) Goyal MG Gases P. Ltd. Vs. Griesheim GMBH 211
(2014) DLT 481 (DB) – the question for consideration was whether the jurisdiction to execute a decree passed by Courts in reciprocating territories, under Section 45A of the CPC was of the High Court, if the decree sought to be executed was in the sum of more than Rs.20 lacs, being the then minimum pecuniary jurisdiction of the High Court. It was held giving elaborate reasons that the High Court of Delhi is not the District Court in terms of Section 44A of the CPC.
16. I have considered the controversy.
17. Per Section 8(5) of the personal law applicable to the minor i.e. the Hindu Minority & Guardianship Act, the permission required under Section 8(2) is to be sought in accordance with Section 29 of the Guardians and Wards Act. Section 29 of the Guardians and Wards Act also merely provides for “previous permission of the Court”. However, Section 4(5)(a) thereof defines the „Court‟ as a “District Court having jurisdiction to entertain an application”. Thus, reading Section 8(5) of the personal law applicable to the minor with Section 29 and Section 4(5)(a) of the Guardians and Wards Act, the petition lies only in the District Court.
18. However Section 4(4) of the Guardians and Wards Act defines District Court as having “the meaning assigned to that expression in the Code of Civil Procedure, 1882 (14 of 1882) and includes a High Court in the exercise of its ordinary original civil jurisdiction”. The High Court of Delhi has been vested with the ordinary original civil jurisdiction vide Section 5(2) of the Delhi High Court Act, 1966. Thus, as far as Delhi is concerned, the jurisdiction to entertain a petition under Section 29 of the Guardians and Wards Act would be concurrently of the District Court as well as the High Court. However in James Francis Dillon supra cited by the counsel for the plaintiffs, it has been held that the ordinary original civil jurisdiction of this Court is only in respect of suits of specified valuation and not in respect of petitions under the Guardians and Wards Act. I have not been able to find any judgment contrary thereto or otherwise on the said aspect. Thus as per James Francis Dillon supra, by which I am bound, this Court does not have jurisdiction to entertain petitions under Guardians and Wards Act and the jurisdiction is of the District Court. Since filing of the application under Section 8(2) of Hindu Minority and Guardianship Act is governed by Guardians and Wards Act, this Court would not have jurisdiction to entertain application under Section 8(2), as this petition is.
19. Once it is so, the petition is not maintainable in this Court.
20. Moreover, Section 8 of the Personal Law applicable to the minor, though in Section 8(5) provides for the application under Section 8(2) to be in accordance with Section 29 of the Guardians and Wards Act, but in Section 8(6) provides that for the purposes of Section 8, „Court‟ means „City Civil Court or a District Court, or a Court empowered under Section 4A of the Guardians and Wards Act‟, making it clear that the application for permission under Section 8(2), though required to be in accordance with Section 29 of the Guardians and Wards Act, has to be made to the City Civil Court only and not to the High Court. Though Section 8(6) also refers to Section 4A of the Guardians and Wards Act but Section 4A only empowers the High Court to, by general or special order empower any officer exercising original civil jurisdiction subordinate to a District Court or authorise any Judge of any District Court to empower any such officer subordinate to him to dispose of any proceedings thereunder.
21. Thus an application for permission under Section 8(2) of the Hindu Minority and Guardianship Act can be moved only before the City Civil Court or any Court in the District which has been empowered by the High Court under Section 4A of the Guardians & Wards Act to hear such petitions. Section 8(6) of the Hindu Minority and Guardianship Act restricts the making of an application under Section 8(2) before the High Court.
22. Thus whichever way one looks, the petition does not lie in this Court.
23. I may also refer to Mary Assumption Trinidade Vs. Vincent Manuel Trinidade 1975 SCC OnLine Del 132, holding (i) that the mere fact that Section 266 of the Indian Succession Act equates the power of the District Judge in relation to proceedings for the grant of probate and Letters of Administration with the powers that the District Judge would have in relation to any suit or proceeding pending in his Court, does not obliterate the distinction between ordinary civil jurisdiction of the District Judge and the testamentary and intestate jurisdiction of that Court under the Indian Succession Act; (ii) that Section 266 merely indicates the ambit of power of the District Judge while dealing with matters in exercise of its testamentary and intestate jurisdiction and the non obstante clause in Section 5(2) of the Delhi High Court Act operates only in relation to provisions contained in any law with regard to jurisdiction of Courts vis-àvis suits and leaves other jurisdictions untouched; and, (iii) that the argument that Section 5(2) of the Delhi High Court Act ousts the testamentary and intestate jurisdiction of the District Court ignores the distinction between the original civil jurisdiction of a Court and the ordinary original civil jurisdiction as also between the ordinary civil jurisdiction and the testamentary and intestate jurisdiction.
24. Mention may also be made of N.T. Raju Vs. N. Jyotsna MANU/AP/0248/1985 (DB), holding that (i) High Court does not come within the definition of District Court exercising an ordinary original civil jurisdiction within the meaning of Section 4(4) of the Guardians and Wards Act; and, (ii) the High Court exercises Letters Patent jurisdiction under Clause 17 of the Letters Patent of the High of Madras which is preserved in its favour by Section 3 of the Guardians and Wards Act; and, (iii) such jurisdiction is in the nature of special extraordinary civil jurisdiction and the High Court and the District Judge do not exercise any concurrent jurisdiction in strict sense.
25. The aforesaid judgments also carve out the difference between original civil jurisdiction to entertain suits of specified pecuniary value and ordinary original civil jurisdiction which would include the testamentary and guardianship jurisdiction.
26. The effect, on the controversy, of the Family Courts Act, 1984, has also crossed my mind. However, the explanation (g) of Section 7 thereof vests jurisdiction in the Family Court, only in a suit or a proceeding in relation to the guardianship of the person or the custody of or access to any minor and does not vest any jurisdiction with respect to the property of the minor. Thus the option of approaching the Family Court is not available to the plaintiffs.
27. I have also considered, whether the proceedings under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 have to be by way of a suit. The same does not provide so. Rather, Section 8(5) refers to “an application for obtaining the permission of the Court under sub-section (2) ……..”. The Guardians and Wards Act also does not prescribe the proceedings permitted thereunder by way of a suit and only provide for an „application‟ or „a petition‟ to be filed.
28. The Court Fees Act, 1870 and the Suit Valuation Act, 1887 also are not found to be providing for valuation for the purposes of court fees and jurisdiction of a suit under the provisions of the Guardians and Wards Act or under Section 8(2) of the Hindu Minority and Guardianship Act. Instead, Schedule-II of the Court Fees Act provides for fixed court fees on applications/petitions of the nature described therein including under specified statutes. Though the same also does not provide for an application or petition under the Guardians and Wards Act or under Section 8(2) of the Hindu Minority and Guardianship Act, but on the parity thereof, when the statute provides for an application/petition to be filed for previous permission of the Court, there is no reason to hold the same to be by way of a suit and the proceeding has to be by nature of an application/petition only.
29. The proceeding is thus liable to be dismissed on this ground also.
30. However at the same time it cannot be ignored that the plaintiffs, though also owing to their own fault, of withdrawing the petition from the Court of appropriate jurisdiction merely on being told to do so, have also been the sufferers of the judicial process. When they approached the District Judge, the District Judge, merely on impressions and without studying the law, raised questions about the maintainability thereof before the District Court. When the plaintiffs approached this Court, the Joint petition, without realizing that the same did not lie before this Court and forgetting that the Joint Registrar acts as the delegatee of the High Court and not as a subordinate of the District Judge. The entire process of the petition, has now been undergone. I am loath to now ask the plaintiffs to undergo the process again before the Court of appropriate jurisdiction, especially when from the pleadings of the plaintiffs and no objections filed by the siblings and paternal uncle of the minor, it is evident that the petition has to be allowed. On the basis of the material on record, I am satisfied that sale proposed is for evident advantage of the minor plaintiff No.2. The plaintiff No.2 has only a 1/12th undivided share in the property. Once others, having remaining share in the property have decided to sell, and to which there is no impediment, retaining the said 1/12th share by plaintiffs will not be of advantage. On the contrary, the price of the share of plaintiffs can earn returns for the plaintiffs.
31. I therefore, in exercise of parens patriae and supervisory jurisdiction of this Court, choose to, notwithstanding the above finding of law, entertain the petition and allow the same.
32. The petition is thus allowed, granting permission to the plaintiff no.1 Ritu Garg, to sell the entire 1/12th share of the minor / plaintiff no.2 Tara Garg in property bearing No.85, Anand Lok, New Delhi for the consideration of the share of the plaintiff no.2 of not less than Rs.1.83 crores and on the condition that (i) the monetary share of the plaintiff no.2 shall be proportionate to the share of others in the property; (ii) entire share of the plaintiff no.2, without any deductions whatsoever, shall be received from the purchaser(s) of the property in the name of the plaintiff no.2 and shall be deposited with a nationalized bank in the name of the plaintiff no.2 and under the guardianship of plaintiff no.1 and for the period of minority of the plaintiff no.2 and shall not be dealt with without the permission of the Court; and, (iii) the plaintiff no.2, upon attaining majority, shall be entitled to intimate the bank and deal with the monies as may be deemed appropriate by her. The petition / suit is disposed of.