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Mother Cannot Alienate Minor Son's Property When She's Not His Natural Guardian: Bombay HC [Read Judgment]

Apoorva Mandhani

28 Jan 2019 6:38 AM GMT

    • Mother Cannot Alienate Minor Sons Property When Shes Not His Natural Guardian: Bombay HC [Read Judgment]

    Aurangabad bench of the Bombay High Court has held that a mother cannot alienate/sell property of her minor son, when she is not his legal guardian.Justice AM Dhavale observed, "…it is crystal clear that when the property inherited and owned by the plaintiff which is not a Hindu Joint Family property or interest in the joint Hindu Family and when father was not shown to be not taking care...

    Aurangabad bench of the Bombay High Court has held that a mother cannot alienate/sell property of her minor son, when she is not his legal guardian.

    Justice AM Dhavale observed, "…it is crystal clear that when the property inherited and owned by the plaintiff which is not a Hindu Joint Family property or interest in the joint Hindu Family and when father was not shown to be not taking care of the minor, mother is not natural guardian. She as a de facto guardian has no right to alienate the property of her minor son."
    The court was hearing a petition filed by the boy through his father, challenging as void and illegal the sale of his property in the year 1989, by his mother Kushavartabai Paul. The defendant, Shivaji Paul to whom the property was sold opposed the plea claiming that it was sold for legal necessity and for the benefit of the minor.
    The Trial Court had allowed the minor's petition, ruling that when the plaintiff's father was alive, his mother was not a natural guardian and was not entitled to execute the sale deed on behalf of the minor. It also held that there was no legal necessity for the sale. This was, however, set aside by the first appellate court; its order was now under challenge by way of second appeal.
    The high court disagreed with the first appellate court, observing, "There are neither pleadings nor evidence to make out these situations which could have made the mother as natural guardian. Hence, the sale effected by mother is void and the suit filed for challenging the same and for claiming perpetual injunction and later on for possession was perfectly maintainable."
    It further held the suit to be maintainable, opining that the minor did not need to wait till attaining majority for approaching the court, as such condition can be let go of when the sale is void and there was threat of dispossession or there was actual dispossession.
    It further explained, "There are neither pleadings nor evidence to make out these situations which could have made the mother as natural guardian. Hence, the sale effected by mother is void and the suit filed for challenging the same and for claiming perpetual injunction and later on for possession was perfectly maintainable."
    The court then allowed the petition, while explaining that the issue of lis pendens would not come into picture as the mother did not have any right to transfer the property in the first place.
    Read the Judgment Here

    Tags
    #Mother Cannot Alienate Minor Son’s Property#Minor Son’s Property#Natural Guardian#Aurangabad bench#Bombay High Court#Justice AM Dhavale
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