Smt. Snehal Wd/O Tushar Barde And Another v. Nil

2025:BHC-NAG:4312 1 ao 3.2025.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, AT NAGPUR.

Appeal Against Order No. 3 of 2025 [Smt. Snehal Wd/o Tushar Barde and anr. ..vs.. Nil] - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. A. M. Chandekar, Advocate for the appellants CORAM : ANIL L. PANSARE J.

DATED : 24-04-2025 On 22-4-2025, following order was passed.

Civil Application No. 14 of 2025 in Appeal Against Order St. No. 4743 of 2025 "For the reasons set out in the application, the application is allowed. Delay of 1 day in preferring the appeal is condoned. Appeal be registered.

2] The application is disposed of.

APPEAL AGAINST ORDER ST. NO. 4743/2025 3] Heard.

4] The property under question, viz., flat situated at Gazetted Officers' Co-operative Housing Society, Mouza - Pandharabodi, Nagpur, was jointly purchased by Mrs. Lata Ramesh Barde and her son - Amol Ramesh Barde. Lata expired on 8/11/2020 leaving behind two sons and one daughter, namely, Amol, Tushar and Rucha. Lata's husband predeceased her. Lata's son Tushar expired on 4/8/2023 leaving behind Snehal - petitioner no.1 (original applicant no.1) and Rajas - petitioner no.2 (original applicant no.2) (minor).

5] The petitioners filed an application, being Miscellaneous Civil Application No. 712/2024, under Section 8 of the Hindu Minority And Guardianship Act, 1956 (for short "Act of 1956"), seeking permission to sell their undivided share in the flat.

6] The trial Court rejected the application on the count that the property under question is a joint family property, and an adult member, i.e., petitioner no.1 is managing the

2 ao 3.2025.odt property and, therefore, the Court has no jurisdiction to grant permission to sell the undivided interest of the minor.

7] This finding is challenged on the ground that the property under question is not a joint family property, but is a property purchased by two persons, of whom one has expired, and her legal heirs became owners by law of succession.

8] There appears substance in the submissions inasmuch as the flat under question was purchased by Lata and Amol. The immovable property is, thus, a selfacquired property of Lata and Amol. This self-acquired property cannot be said to be a joint family property merely because one of the owners has expired. The Class - I heirs will become owners in view of law of succession. The property, in the present case, will devolve upon the legal heir in terms of Section 14 of the Act of 1956. Thus, the finding that the property was a joint family property, is apparently erroneous.

9] Nonetheless, and towards abundant precaution, say of the co-owners should be called. The learned Counsel for the appellants submits that the co-owners are ready to submit affidavit of no objection. Such affidavit, if filed, will serve the purpose.

10] The appellants shall, therefore, file affidavit of coowners, namely, Amol and Rucha giving no objection for alienating undivided share of the petitioners. 11] Stand over to 24/4/2025."

2.

The petitioner has placed on record affidavits of co-owners, namely, Amol and Rucha. Both have given no objection for granting petitioners permission to deal with the property under question.

3.

In view of the above and for the reasons mentioned in the order dated 22-4-2025, the appeal is allowed. Order dated 27-11-2024 passed below Exhibit 1 in Miscellaneous Civil Application No. 712/2024 by District Judge-3, Nagpur is

3 ao 3.2025.odt quashed and set aside. Miscellaneous Civil Application No. 712/2024 is allowed as prayed for.

4.

The appeal stands disposed of in above terms. 5.

Pending civil application/s are accordingly disposed of.

(Anil L. Pansare, J.) wasnik