Zainab Murtuza Neralwala v. Nil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION by HUSENBASHA RAHAMAN NADAF Date:
2025.11.14 10:26:43 +0530 HUSENBASHA RAHAMAN NADAF FIRST APPEAL (ST) NO. 3311 OF 2025 WITH INTERIM APPLICATION NO. 11619 OF 2025 Zainab Murtuza Neralwala & Anr.
...Appellants/Applicants
Versus
NIL ..Respondent **** Mr. Indrajeet Hingane, for Appellants.
**** CORAM : M.M. SATHAYE, J.
DATE : 13th NOVEMBER, 2025 P.C. :
1.
Heard learned advocate for the Appellant. Perused the record. 2.
By this appeal, the Appellants are challenging the impugned order dated 06.09.2024 passed by the District Judge-1, Panvel, Raigad, rejecting Civil Misc. Application No.32 of 2024. The said application was filed under Section 29 of the Guardians And Wards Act, 1890 for declaring Appellant No.1 as natural guardian of the Appellant No.2 who is her minor son and for permission to sell 1⁄2 share of minor Appellant No. 2 in suit property. It is stated that the father of the Appellant No.2 has expired on 08.05.2021. A copy of the death certificate is produced on record of the appeal. It is stated that suit property is agreed to be sold to a third person Mr. Kadar Abulkar Bohari. It is stated that the proposed sale is for welfare of the children, for bearing expenses of their maintenance, medication, higher education.
3.
By the impugned order, the said application is rejected only on the ground that the agreement with proposed purchaser has not been produced. The Appellants have filed the above interim application (with appeal) seeking to produce a Memorandum of Understanding (MoU, for short) dated 15.03.2024 which was executed with the said proposed purchaser. It is submitted that the application was filed on 01.04.2024 after the MoU was executed.
4.
Considering the fact that the application is rejected only on the ground of non-production of document with the proposed purchaser and further considering the fact that the MoU is relied upon, it will not be appropriate for this Court to consider the said document in first time in appeal. However, an opportunity is required to be granted to the Appellant to place the said MoU on record before the Trial Court and then press prayers in the application. 5.
In that view of the matter, the appeal is partly allowed by passing following order:
(a) The impugned order dated 06.09.2024 is set aside. The Civil Misc. Application No.32 of 2024 is restored to file for fresh hearing.
(b) The Appellants are permitted to produce the MoU dated 15.03.2024 before the Trial Court. The Appellants are also at liberty to produce other evidence in support of their case for appointment of guardian as well as for permission to sell. (c) The Trial Court is directed to decide the application in
accordance with law.
(d) It is clarified that this Court has not expressed any opinion on the merits of the case.
(e) First appeal and interim application are disposed of, in above terms.
6.
copy of this order.
(M.M. SATHAYE, J.)