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Judgment
Appeal is listed today on the question of maintainability.
From perusal of impugned order, it is evident that the appellant has filed application under section 8 of the Guardians and Wards Act, 1890. The said section deals with appointment of Guardian. However, it ought to have been treated under section 8(2) of the Hindu Minority and Guardianship Act, 1956.
Section 8 of the Hindu Minority and Guardianship Act, 1956, reads as under:-
"8.Powers of natural guardian.—(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 sub-section (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 shall 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.
Section 29 of the Guardians and Wards Act reads as under :-
"29. Limitation of powers of guardian of property appointed or
declared by the Court.—Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he 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 his ward, or
(b)lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor."
From bare perusal of aforesaid provision, it is clear that section 8 of the Hindu Minority and Guardianship Act, 1956, provides Powers of natural guardian. Sub section (5) thereof provides that the Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining permission of the court under sub section (2) in all respects as if it was an application for obtaining the permission of the Court under section 29 of the Guardians and Wards Act. Sub clause (c) provides that an appeal shall 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.
Thus, provision of section 29 of the Guardians and Wards Act is pari materia to section 8(2) of the Hindu Minority and Guardianship Act, 1956.
Further, Chapter 2 Rule 9 sub rule (5) of the High Court of Madhya Pradesh Rules, 2008, provides that Misc. Appeal under section 47 of the Guardian and Wards Act, 1890, would lie against an order passed in an application (MJC). Thus, First Appeal is not maintainable.
Faced with such a situation, counsel for the appellant prays for withdrawal of this appeal with liberty to file Misc. Appeal.
Prayer seems to be reasonable, hence the same as allowed.
First appeal stands dismissed as withdrawn with the aforesaid liberty.
Let Certified copy of the impugned order be returned to the appellant on his furnishing attested true copy of the same.