Can't Permit Single Mother To Sell Minor's Share In Property Under Garb Of Child's Maintenance Sans Material Detailing Income & Expenses: Gujarat HC

A single bench comprising of Justice Umesh A. Trivedi observed,

"There is no averments either in the application or in the deposition with regard to the earning of the husband or the savings left by him including the details of the bank accounts of the deceased husband. There is also no mention about the fact that what other properties, except mentioned in the application are there in the name of the husband either independently or jointly with even the family members. In absence of all those necessary and material details, the refusal of permission to sell off the share of the minor appears to be correct."

The bench was hearing an appeal preferred by the mother of a minor challenging the refusal of permission to sell the share of the minor in a property. The appellant contended that she had spent huge amount of money for the education of the minor after the demise of her husband in 2021. She had submitted that now it was difficult to manage her financial affairs and the said properties. Since she was not as educated, it was contended that she was not in a position to earn. In absence of any other source of earning, the properties, which were jointly owned with the minor along with the share of other co-owners was requested to be sold off.

The appellants relied upon a 2009 decision of the Kerala High Court which stated that when a minor child was given education, food and clothing and all the requirements are fulfilled, in absence of anything brought out or suggested that the natural guardian have any adverse interest or any other motive in selling the property of the minor, normally permission should be granted to sell off the share of the minor

In this case, the court stated that the application made by the appellants lacked in material detail the expenses either spent, required to be spent in the present or future. However, in the judgement relied upon by the appellants, where a father had assigned his property to the minor, which was required to be sold off, the Court came to the conclusion quoted by the appellants after examining the evidence available on record. Thus, the said authority was held not applicable in the present case.

The court noted that when the application was presented, the minor was still 16 and did not have to worry about his higher education. Thus, the question of selling the properties for the education, maintenance and welfare of the child did not arise. Further, it was held that merely mentioning that the minor is studying in 12^th Standard with no further material regarding what amount was spent towards his studies or his educational performance was not enough as the Court could not assess the prospective expenses to be borne by the mother.

Further, no details about the occupation of the husband who died were mentioned except the fact that he did agricultural work. However, details of the application evidenced that the husband was dealing in  to a sizeable extent. The possibility that he could be a builder purchasing agricultural land, getting it converted into NA along with other partners and selling off NA plots could not be ruled out by the court. No material on savings of the husband were provided either.

Thus, the court opined that–

"In absence of necessary and material details, the refusal of permission to sell off the share of the minor appears to be correct. Permitting anything to be brought on record now by way of additional evidence as suggested by the learned advocate for the appellants would be filling up of lacuna found in the case pleaded by the appellants, and therefore, at this stage, it cannot be permitted. If law permits, appellants may apply again with all necessary details if at all the necessity still continues but no such permission, while exercising appellate jurisdiction over the said order, can be granted in the present case."

Thus, the Appeal was rejected by the court.

Case Title : RAMILABEN VIJAYKUMAR PATEL Versus NA

Citation: 2022 LiveLaw (Guj) 233

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