Quashed

Govind Yadavrao Hiwrale v. Yadav Pundalik Hiwrale and Anr.

Bombay HC29 Nov 2011WP/6043/2010

Case brief

AI extract

What is this about?

The High Court quashed an order permitting the sale of a minor's property obtained under Section 8 of the Hindu Minority and Guardianship Act. It directed the District Court to reconsider the application due to allegations of fraud and conflicting interests, staying further proceedings.

What did the court decide?

Impugned order under Section 8 of Hindu Minority and Guardianship Act quashed and set aside; parties directed to District Court to decide application afresh; proceedings stayed.

Govind Yadavrao Hiwrale Vs Yadav Pundalik… — Child Custody and Guardianship | Bombay HC (2011)

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1 W.P.No.6043/11

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.6043 OF 2010.

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Govind S/o Yadavrao Hiwrale,
Age 19 years,Occ.At present Nil,
R/o C/o Nivrutti Tukaram Wadje,
Srinagar Road, Near Hanuman
Temple, Dist.Nanded.

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... Petitioner.

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Versus

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1. Yadav S/o Pundalik Hiwrale,
Age 50 years, Occ.Agriculturist,
R/o Village Jambhali, Tq.Mukhed,
Dist.Nanded.

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2. Vishwambhar S/o Bhujangrao
Shinde, Age 40 years, Occ.
Agriculturist, R/o Village
Kerur, Tq.Mukhed, Dist.
Nanded.

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... Respondents.

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Mr.M.V.Ghatge, advocate holding for

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Mr.B.N.Gadegaonkar, advocate for the petitioner.
Mr.U.B.Bilolikar, advocate for Respondent No.1.
Mr.Amol S.Gandhi, advocate for Respondent No.2.

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 29.11.2011.

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2 W.P.No.6043/11

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ORAL JUDGMENT :

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1.Heard.

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2.Rule. Rule returnable forthwith. With
the consent of the parties, the petition is taken
up for final hearing.

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3.The petitioner impugns the order dated
15.4.2009, passed by the Addl.District Judge,
Kandhar, thereby allowing the application filed
by the present Respondent No.1 U/s 8 of the Hindu
Minority and Guardianship Act. Vide the impugned
order, permission was granted to the Respondent
No.1 to sell the property of the present
petitioner who was at the relevant time minor.

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4.Mr.Ghatge, learned counsel for the
petitioner submits that the present Respondents
have obtained the impugned order by playing fraud
upon the Court. The Respondents suppressed the
material facts. In fact, by the compromise
decree, the present petitioner became the owner
of the property for which permission was sought
and in the said compromise decree it was

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3 W.P.No.6043/11

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specifically agreed that the mother of the
present petitioner is the guardian of the
petitioner. According to the petitioner, it is
the father who had killed the mother and father
was also prosecuted. The learned counsel
contends that the permission was obtained just 20
days before petitioner became major. The learned
counsel further contends that the property which
is sold is much more valuable than the property
Gat No.144 shown to have been purchased from the
said sale proceeds. The transaction is also
inequitable. Other contentions are also raised.

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5.Mr.Bilolikar, learned counsel for the
Respondent No.1 submits that the sale was in the
interest of the minor. The Respondent No.1 is a
natural guardian and as he is the natural
guardian, the Respondent No.1 had every right to
sell the property by obtaining permission. No
fraud has been committed. The Respondent No.1 was
wrongly prosecuted and he has also been acquitted
which shows falsity of the prosecution. The
other property is purchased i.e. Gat No.144
admeasuring 60 ares. The petitioner can have the

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4 W.P.No.6043/11

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benefit of the said property and the same is also
mutated in his name.

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6.Mr.Gandhi,learnedcounselfor

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Respondent No.2 also supports the order and
submits that the Respondent No.2 bonafidely after
verifying that the provisions of law are complied
and the permission for sale has been obtained,

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has purchased the property and parted with the
consideration amount. The Respondent No.2 is not
at fault. Even otherwise, the petitioner has
filed Civil suit challenging the sale transaction
and in the Civil suit all these facts can be
decided.

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7.The fact that there was a compromise
decree and the Respondent No.1 agreed that the
mother of the petitioner would be the guardian of
the petitioner is not disputed. It is also a
matter of record that just prior to 20 days of
the petitioner attaining majority, the permission
was obtained. This Court in its writ

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jurisdiction under Article 227 of the
Constitution of India, would not be in a position

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5 W.P.No.6043/11

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to investigate and enquire into the factual
matrix of the alleged fraud and the other
factors. The Division Bench of Nagpur High court
in a case of "Sonba Vs. Narayan and others"
reported in A.I.R. 1924 Nagpur 269, has held that
the District Judge can review his own order
granting sanction for sale. In view of that it
would be in fitness of things to direct the
District Court to reconsider the said petition
for permission to sell on its own merits after
taking into consideration the averments made by
the rival parties and after giving due
opportunity to them to put forth their case.

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8.In light of the above, I quash and set
aside the impugned order and relegate the parties
before the District Court for deciding the said
application bearing Misc.Application No.1/2009
filed U/s 8 of the Hindu Minority and
Guardianship Act, 1956 afresh.

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9.In the result, I pass the following

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order :

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6 W.P.No.6043/11

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(a)The impugned order is quashed and set
aside. The parties are relegated to the District
Court for deciding Misc.Civil Application No.
1/2009 filed by the present Respondent U/s 8 of
the Hindu Minority and Guardianship Act, afresh.
All the parties shall have opportunity to put
forth their case.

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(b)Till the decision on said Misc.Civil
Application No.1/2009, the further proceedings in
R.C.S.No.92/2009, pending before Civil Judge
(J.D.),Mukhed shall remain stayed.

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(c)The transaction of sale affected
pursuant to the impugned order shall be subject
to the decision in Misc.Civil Application No.
1/2009 and till the said application is decided,
the possession of the parties shall not be
disturbed.

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(d)The petitioner shall also not deal with
the property Gat No.144 which is purchased in the
name of the petitioner after the permission
impugned in the present Writ Petition was

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7 W.P.No.6043/11

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granted.

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(e)The parties shall appear before the
District Court on 19.12.2011. The respective
parties shall not alienate or create third party
interest of whatsoever nature in property bearing
Gat No.37 i.e. the property sold pursuant to the
permission granted and Gat No.144 i.e. the land
purchased in the name of petitioner.

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(f)Rule made absolute accordingly. No

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costs.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp604311

Govind Yadavrao Hiwrale v. Yadav Pundalik Hiwrale and Anr.

Case brief

What is this about?

What did the court decide?

Govind Yadavrao Hiwrale v. Yadav Pundalik Hiwrale and Anr.

Case brief

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What did the court decide?

What the court decided

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