Master Anil Kumar, Master Sunil Kumar Through their mother and natural guardian Smt. Pushpa and Smt. Pushpa vs Sh. Ishwar Lal

Dev Darshan Sud, J.—This petition has been preferred against the order passed by the learned District Judge in a petition u/s 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the �Act�) instituted by Ishwar Lal father of the two minors Anil Kumar and Sunil Kumar for permission to dispose of their estate in order to look after their education and up bringing. The averments in the petition, inter alia, are that the money would be required for the welfare, maintenance and better education of the children.

Notice of this petition was issued to the general public and no objection was filed. The respondent herein appeared as the only witness stating that he is working in a factory at Ambala and that he does not have a sufficient funds to maintain both the minor children. The learned District Judge, on the averments made in the petition and the sole statement on record, allowed the petition, as prayed for.

The present proceedings have been instituted by the wife urging a number of grounds in support of her contentions that the respondent is not the natural guardian of the children, one of them Master Anil Kumar is living with her, she is looking after him and Sunil Kumar has been forcibly kept by respondent-Ishwar Lal. She submits that the sale of the property has not been made for the benefit of the minors. The petition was resisted primarily on the ground that the maintenance claims of the petitioners have already been settled by the respondent and that the present petition is nothing but an abuse of the process of the court/law, in order to extract more money using the children as a shield.

I have heard learned counsel for the parties and have also perused the record of the case. There is no dispute of the proposition that permission u/s 8 of the �Act� is to be granted keeping in view the best interest of the minors. There is also no dispute of the proposition that this interest has to be determined by the evidence on record. However, what I find from the proceedings which have been conducted before the learned trial Court is that the statement is cryptic and the learned Court has not applied its mind to ascertain as to what is the best interest of the two minors. The very fact that the children are the petitioners herein is itself a sufficient ground to set aside the order. Even if the proceedings before the learned trial Court were ex parte, there should have been some documents/material on the record to find out as to what was the income of the respondent and what expenditure was required for the maintenance of the children. I find this exercise totally lacking and the approach of the learned trial Court is most casual without in any manner considering the principles of law applicable. I need not to say anything more.

In this view of the matter, this petition is allowed. A direction is issued to the learned trial Court to re-admit the petition on its record, to grant an opportunity to the petitioners herein to contest the petition on merits and thereafter proceed with the case. I am alive to the view that 4 bighas of land has already been sold by the respondent herein and that rights of the third party have also been set aside and the purchase has been made bonafide since permission was specifically sought for sale of the land/ property to this person.

In these circumstances, I direct that this part of the transaction shall not be disturbed at all out of the entire money realized by the petitioners herein, Rs. 80,000/- has been deposited in this Court which shall be invested in Fixed Deposit and shall not be released save and except on the order passed by this Court. Of the remaining amount of Rs. 80,000/-, it will be open to the learned trial Court to direct its deposit if so required and warranted by the facts and circumstances.

With these observations, this petition is disposed of. The record of the learned trial Court be sent back immediately. Parties to appear before the learned District Judge on 28th April, 2012. It is made clear that the disposal of this petition does not determine the contentions raised by both the parties in support/opposition to the petition. No order as to costs.