# Smt. Preeti Arora v. Subash Chandra Arora & Anr

- **Citation:** (2024) 4 ILRA 995
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-05
- **Case number:** First Appeal From Order No. 272 of 2024
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-preeti-arora-v-subash-chandra-arora-anr-51879
- **Pages:** 5

## Headnote

Civil Law - Hindu Minority and Guardianship
Act, 1956 - Section 8 - Instant FAFO u/s 8(c)
of Hindu Minority and Guardianship Act,
1956, challenges order of A.D.J, whereby
996 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff/ appellant's application seeking
permission to sell property in interest of
minors was rejected - Counsel for appellant
contends that application u/s 8 was wrongly
rejected - Trial Court erred in relying on
mere conjecture that details of property to
be purchased in Punj. or its possible rental
were
not
disclosed
-
Appellant
had
bonafidely disclosed all circumstances for
selling out property in her application, and
also opposite parties had consented to
transfer - Upon perusal of impugned order
and admitted facts, Court is of view that
appellant's Application u/s 8 of Act, 1956,
was not liable to be rejected - However, as
no natural guardian is required for a minor's
undivided interest in joint family property as
provided u/s 6 and 12 of Act, prior court
permission u/s 8 for its disposal is not
necessary - Thus, section 8 of Act, in view of
express terms of Section 6 and 12 of Act
would not be applicable where joint Hindu
Family property is sought to be transferred/
disposed off - Impugned order, set aside.
(Para 4, 7, 10, 13, 14)

Appeal allowed. (E-13)

## Text

4 All. Smt. Preeti Arora Vs. Subash Chandra Arora & Anr.
995
applicable on the issue involved in this
case, therefore it is not of any benefit to the
plaintiff-appellants.

36. The basis of suit, even if
registered, is required to be proved in
accordance with law and the presumption
can not be made in respect of any such
document as per Section 90-A inserted by
State Amendment of Uttar Pradesh in the
Indian Evidence Act 1872.

37. In the present case the Will deed
dated 26.09.1969 is the basis of suit filed
by the plaintiff-appellants because they are
seeking declaration of title and possession
on the basis of same, therefore without
proof of the said will in accordance with
law i.e. it's execution in accordance with
Section 63 of the Indian Succession Act
1925 and proof thereof in accordance with
the aforesaid provisions made in the Indian
Evidence Act 1872 and removal of doubts
in regard to it's execution, no declaration
could have been made and direction for
possession could have been given but the
plaintiff-appellants have failed to prove
them in accordance with law and also failed
to remove doubts in regard to it's execution.
As discussed above the will can also not be
presumed to be valid and enforceable,
therefore also no such declaration could
have been made, therefore consequential
relief could also not be granted.

38. In view of above, this Court is of
the view that learned appellate court has
rightly and in accordance with law held that
the plaintiff-appellants have completely
failed to prove the will deed dated
26.09.1969 and the plaintiff-appellants
have failed to dispel the suspicious
circumstances arising out of evidence of
PW-2, the burden of which was on them
and there is no admission of execution of
the said will deed by the DW-1 and DW-2,
on account of which it may be said that it is
sufficient prove of execution of Will as
against the respondent-defendants. Thus the
aforesaid substantial questions of law no.1
and 2 framed in this second appeal, are
answered accordingly.

39. In view of above and considering
over all facts and circumstances of the case,
this Court is of the view that the first
appellate
court
has
rightly
and
in
accordance with law has allowed the appeal
and set aside the judgment and decree
passed by the trial court and dismissed the
suit and this second appeal is misconceived
and lacks merit, which is liable to be
dismissed.

40. The second appeal is, accordingly,
dismissed. No order as to costs.
----------
(2024) 4 ILRA 995
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

First Appeal From Order No. 272 of 2024

Smt. Preeti Arora ...Appellant
Versus
Subash Chandra Arora & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Arvind Srivastava

Counsel for the Respondents:
Komal Mehrotra

Civil Law - Hindu Minority and Guardianship
Act, 1956 - Section 8 - Instant FAFO u/s 8(c)
of Hindu Minority and Guardianship Act,
1956, challenges order of A.D.J, whereby
996 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff/ appellant's application seeking
permission to sell property in interest of
minors was rejected - Counsel for appellant
contends that application u/s 8 was wrongly
rejected - Trial Court erred in relying on
mere conjecture that details of property to
be purchased in Punj. or its possible rental
were
not
disclosed
-
Appellant
had
bonafidely disclosed all circumstances for
selling out property in her application, and
also opposite parties had consented to
transfer - Upon perusal of impugned order
and admitted facts, Court is of view that
appellant's Application u/s 8 of Act, 1956,
was not liable to be rejected - However, as
no natural guardian is required for a minor's
undivided interest in joint family property as
provided u/s 6 and 12 of Act, prior court
permission u/s 8 for its disposal is not
necessary - Thus, section 8 of Act, in view of
express terms of Section 6 and 12 of Act
would not be applicable where joint Hindu
Family property is sought to be transferred/
disposed off - Impugned order, set aside.
(Para 4, 7, 10, 13, 14)

Appeal allowed. (E-13)

(Delivered by Hon'ble Ashutosh Srivastava J.)

1. Heard Shri Arvind Srivastava
(Advocate Roll No. A/A 1244/12) learned
counsel for the plaintiff/ appellant and Sri
Komal
Mehrotra,
learned
counsel
representing the defendant/ respondents.

2. The FAFO raises a purely legal
issue. The respondent has already put in
appearance and the Court is of the opinion
that no useful purpose shall be served by
keeping the FAFO pending.

3. With the consent of the parties, the
FAFO is being decided finally at the
admission stage itself.

4. The instant FAFO under Section 8
(C)
of
the
Hindu
Minority
and
Guardianship Act 1956 has been filed
assailing the order dated 04.10.2023 passed
by
the
Additional
District
Judge,
Saharanpur, in Misc. Case No. 276 of 2022
registered under Section 8 of the Hindu
Minority and Guardianship Act 1956
whereby and whereunder the Application
on behalf of the plaintiff/ appellant (Paper
No. 4-B) supported by affidavit seeking
permission to sell the property in the
interest of minors has been rejected on
flimsy grounds.

5. It is the case of the Plaintiff/
Appellant that she is a widow. Her husband
expired on 17.03.2021 leaving behind her
and 3 daughters besides his mother. The
husband of the Plaintiff/ Appellant had 1/2
share in a double storied house bearing No.
A-26, Paramount Tulip, having area 143.90
square meters. The other 1/2 share was of
her father-in-law. After the death of her
husband his heirs i.e. the Appellant, her
mother-in-law
and
three
daughters
inherited 1/5th share each in the house
property. The father-in-law (opposite party
no. 1 herein) out of his own free will
executed a Gift Deed on 05.08.2021 gifting
his entire 1/2 share in the house property to
the Appellant. The mother-in-law also
executed a registered Gift Deed of her 10%
share in favour of the Appellant. The
Appellant thus has 70% of the share in the
house property. The remaining 30% is that
of the 3 minor daughters. The Appellant for
the benefit and better prospects of her
minor girls wants to sell the house and
settle at Zeerakpur, Mohali, Punjab, where
she is working. It has become difficult to
maintain the property at Saharnpur. The
maternal grand parents, uncle are all
residing
at
Zeerakpur,
Punjab.
The
Appellant shall not misappropriate the
funds collected from the sale of the house
property
and
shall
make
adequate
investments for the minor girls to secure
4 All. Smt. Preeti Arora Vs. Subash Chandra Arora & Anr.
997
their future. The opposite parties i.e. the
father and mother in law have also
extended their consent for the sale of the
House property. All members of the family
i.e. the Appellant, father and mother in
laws, minor children are residing at Punjab
and the minor girls are pursuing their
studies at Punjab. The house remains
locked. Some land mafias have their eyes
over
the
property.
In
the
aforesaid
circumstances seeks permission under
Section 8 of the Hindu Minority and
Guardians Act 1956.

6. The learned Additional District
Judge, Saharanpur, under the order dated
04.10.2023 impugned has rejected the
Application of the Appellant seeking
permission under Section 8 of the Hindu
Minority and Guardianship Act 1956 being
of the view that the Appellant wants to sell
of the property and reside at Punjab. The
children of the Appellant are minor out of
them one is 12 year old and the other two
are twins of 8 year each. The Appellant has
not disclosed from whom she would
purchase the property in Punjab and for
what amount after selling the House
Property here at Saharanpur. The property
is residential property and is situated in a
posh (VIP) area, it can be let out and the
rental income can be utilized for the benefit
of the minor children and meet out their
educational needs.

7. Learned counsel for the Plaintiff/
Appellant
submits
that
the
Plaintiff/
Appellant ought not to have been non
suited on the grounds stated in the
impugned order. The Application for
permission under Section 8 could not be
rejected on the ground that the details of
the property the Appellant would purchase
in Punjab and for how much after selling
the property in question have not been
disclosed, or that the property could be let
out on rent. The Appellant had bonafidely
disclosed all the circumstances for selling
out the property in her application seeking
permission, yet the Trial Court proceeded
to
reject
the
application
on
mere
conjectures and surmises. It is also
contended that the opposite parties had also
consented for the transfer. Accordingly it is
prayed that the impugned order being
illegal, unjustified is liable to be set aside
and the Application (Paper No. 4B) is
liable to be allowed.

8. Shri Komal Mehrotra, learned
counsel appearing for the respondent nos. 1
and 2 submits that the respondents had
already accorded their consent in favour of
the Appellant and in fact have already
gifted their share in the house property in
favour of the Appellant. They have no
objection if the Appeal is allowed and the
impugned order is set aside.

9. I, have heard the learned counsel
for the parties and have perused the record.

10. Having gone through the
impugned
order
and
taking
into
consideration the admitted facts as set out
in the impugned order, the Court is of the
opinion that the Application (4-B) moved
by the Appellant under Section 8 of the
Hindu Minority and Guardianship Act 1956
was not liable to be rejected.

11. According to the Court, there is
one other aspect of the matter and which
is whether at all a permission was
required for disposing of the undivided
share of the minors. Though this point
was not argued by the learned counsel for
the Appellant but the Court deems it
appropriate to state the correct legal
position in this regard.
998 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Section 6 of the Hindu Minority
and Guardianship Act 1956 deals with
Natural Guardian of a Hindu minor and
inter alia provides that the natural guardian
of a Hindu minor in respect of the minors'
person as well as in respect of the minors'
property (excluding his or her undivided
interest in the joint family property), are in
the case of a boy or an unmarried girl the
father, and after him, the mother provided
that the custody of a minor who has not
completed the age of five years shall
ordinarily be with the mother. Section 8
thereof inter alia provides that 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. Furthermore the natural
guardian shall not, without the previous
permission of the court, mortgage or
charge, or transfer by sale, gift, exchange
or otherwise, any part of the immovable
property of he minor or 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. Any disposal of
immovable property by a natural guardian,
in contravention of sub- section (1) or subsection (2), is voidable at the instance of
the minor or any person claiming on behalf
of the minor. Section 12 provides that
where a minor has an undivided interest in
the joint family property and the property is
under the management of an adult member
of the family, no guardian shall be
appointed for the minor in respect of such
undivided interest : Provided that nothing
in this section shall be deemed to affect the
jurisdiction of a High Court to appoint a
guardian in respect of such interest.

13. With regard to the undivided
interest of the Hindu minor in joint family
property, the provisions afore-culled are
beads of the same string and need be
viewed in a single glimpse, simultaneously
in conjunction with each other. Each
provisions, and in particular Section 8,
cannot be viewed in isolation. If read
together the intent of the legislative in this
beneficial legislation becomes manifest.
Ordinarily the law does not envisage a
natural guardian of the undivided interest
of a Hindu minor in joint family property.
The natural guardian of the property of a
Hindu minor, other than the undivided
interest in joint family property, is alone
contemplated under Section 8, whereunder
his powers and duties are defined. Section
12 carves out an exception to the rule that
should there be no adult member of the
joint family in management of the joint
family property, in which the minor has an
undivided interest, a guardian may be
appointed; but ordinarily no guardian shall
be appointed for such undivided interest of
the minor. The adult member of the family
in the management of the Joint Hindu
Family property may be a male or a female,
not necessarily the Karta. The power of the
High
Court otherwise
to
appoint
a
guardian, in situations justifying, has been
preserved. This is the legislative scheme on
the subject. Under Section 8 a natural
guardian of the property of the Hindu
minor,
before
he
disposes
of
any
immovable property of the minor, must
seek permission of the court. But since
there need be no natural guardian for the
minor's undivided interest in the joint
family property, as provided under sections
6 and 12 of the Act, the previous
permission of the Court under Section 8 of
disposing of the undivided interest of the
minor in the joint family property is not
required.
4 All. Master Hiras & Anr. Vs. State of U.P. & Ors.
999

14. Thus in the opinion of the Court,
section 8 of the Act in view of the express
terms of Section 6 and 12 of the Act would
not be applicable where joint Hindu Family
property is sought to be transferred/
disposed off.

15. In view of the above discussion,
the impugned order dated 04.10.2023
passed by the Additional District Judge,
Saharanpur, in Misc. Case No. 276 of 2022
is set aside.The Appeal stands allowed.

16. No order as to costs.
----------
(2024) 4 ILRA 999
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2024

BEFORE

THE HON'BLE Dr. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 949 of 2023

Master Hiras & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Maimoona Fatima, Sri Mohd. Nasir

Counsel for the Respondents:
G.A.

Constitution of India, 1950 - Article 226 -
Guardians and Wards Act, 1890 - Sections
12, 17 - Principles of Mahomedan Law -
Sections 349, 351 & 352 - Habeas Corpus
- Custody of Minor - Illegal Detention -
Natural Guardianship - Welfare of Minor -
The petitioners, Master Hiras (minor corpus,
aged about 2 years, born on 01.01.2022) and
his father (petitioner no. 2), filed a habeas
corpus petition asserting that the minor was
illegally detained by respondent no. 4, the wife
of petitioner no. 2's brother, who had a strained
relationship with her husband. The minor was
taken by respondent no. 4 on 27.11.2022 when
she left the joint family home to reside at her
maternal home. The petitioners contended that
the father, as the natural guardian, and the
biological mother, entitled to custody (hizanat)
under personal law, had the right to the minor's
custody. The corpus was produced in court on
12.03.2024,
and
custody
was
temporarily
granted to the parents. Held: (1) The petition
was disposed of, with the rule nisi made
absolute, allowing the minor to remain with
petitioner no. 2 (father) and his mother. (2) The
detention of the minor by respondent no. 4 was
illegal, as it lacked legal basis under personal
law or statutory provisions. (3) Under Section
352 of the Principles of Mahomedan Law, the
mother is entitled to custody of a male child
until age seven, and the father is the natural
guardian; respondent no. 4 had no legal claim
to custody. (4) In habeas corpus proceedings
for minor custody, the court's primary duty is to
ensure the child's welfare under its parens
patriae jurisdiction, and illegal detention by a
person
without
legal
entitlement
justifies
issuance of the writ, per Sections 12 and 17 of
the Guardians and Wards Act, 1890, read with
personal
law.
(5)
The
court
found
no
justification for respondent no. 4's custody, and
the minor's welfare was best served with his
parents. The demand draft deposited
in
respondent no. 4's name was ordered to be
returned to petitioner no. 2.

List of Cases cited:

1. Master Hiras & Anr. Vs St. of U.P. & ors.,
(2024) 4 ILRA, Habeas Corpus Writ Petition No.
949

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Mohd Nasir, learned
counsel for the petitioners and Ms. Divya
Ojha, learned AGA-I appearing for the
State-respondents.

2. The petition has been filed with the
assertion that the petitioner no. 1 (corpus),