PRAVINABEN HIMMATLAL KAVAR vs ALPABEN CHINTALKUMAR KAVAR AS A GUARDIAN OF KHUSHI CHINTALKUMAR KAVAR

C/SCA/534/2025 (GJHC240025212025) CAV JUDGMENT DATED: 01/09/2026
Reserved On : 07/08/2026
Pronounced On : 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 534 of 2025

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for Reporting Yes No
No
=====================================================
PRAVINABEN HIMMATLAL KAVAR & ORS.
Versus
ALPABEN CHINTALKUMAR KAVAR AS A GUARDIAN OF
KHUSHI CHINTALKUMAR KAVAR
=====================================================
Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1,2,3,4
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4
MR DHRUVIN A CHHAYA(12305) for the Respondent(s) No. 1
MR N P PANDYA(11241) for the Respondent(s) No. 1
=====================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT
1. By way of invoking extraordinary jurisdiction vested
under Article 227 of the Constitution of India, the petitioners
pray for the following relief/s:-
“(A) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus/ certiorari or a writ in the nature of
mandamus/certiorari or any other appropriate writ, order or
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direction quashing and setting aside dated 30.12.2024
passed by the Principal District Judge Morbi in Civil
Miscellaneous Application No.07/2023 below Exh.56
(ANNEXURE-E) in the interest of justice;
(B) During the pendency and final disposal of the present
petition, YOUR LORDSHIPS may be pleased to stay the
implementation of the order dated 30.12.2024 passed by the
Principal District Judge Morbi in Civil Miscellaneous
Application No.07/2023 below Exh.56 (ANNEXURE-E) and
further be pleased to direct the respondent and her
assignees (if any) to maintain status quo with regard to the
land in question;
(C) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances of
the present case;”
2. The brief facts of the case are that, the original
petitioner - Alpaben Kavar, as the natural guardian and next
best friend of the minor, filed application under Section 29 of the
Guardians & Wards Act, 1890 (hereinafter referred to as the ‘GW
Act’) praying the relief before the learned District Court, Morbi to
grant a permission to sell the undivided share of minor - Khushi
in the land of Survey No.92 Paiki 1, Paiki 2, admeasuring 1-50-
68 Hectare Are sq.mtr. in village Barwala, District: Morbi
(hereinafter referred to as the ‘suit land’) inter alia on the ground
that petitioner - Alpaben married to Chintalkumar and out of the
wedlock, she gave birth to a minor daughter – Khushi, who at
the time of filing the application was 6 years old.
2.1 The husband of the original petitioner, namely
Chintalkumar died on 04.06.2021. Since then, the mother
became the natural guardian of the minor – Khushi.
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2.2 Deceased Chintalkumar died leaving behind the suit
land, which was inherited by the petitioner - Alpaben and minor
daughter Khushi jointly.
2.3 The original petitioner preferred the application for
the purpose of seeking the permission to sell the suit land for the
better life, education and welfare of the minor Khushi.
2.4 The petitioner herein filed objection to the aforesaid
petition, wherby the learned District Court, after permitting both
the parties to lead the evidence, pleased to pass the conditional
order on 30.12.2024 permitting the petitioner to sell the
undivided share of minor Khushi in the suit land while imposing
certain conditions.
2.5 Being aggrieved, the petitioners have filed the petition
with the aforesaid reliefs.
3. Heard learned advocate Mr. Jamshed Kavina
appearing for the petitioners and learned advocate Mr. N.P.
Pandya appearing for the respondent.
4. Learned advocate Mr. Jamshed Kavina referred to the
judgment of the Bombay High Court between Kamna d/o
Satyanarayan Handibag v. Satyanarayan s/o Chatrabhuj
Handibag , reported in 2012(6) Mh. L.J. 434 and submitted
that the learned District Court has committed serious error in
granting permission to sell the share in the land jointly standing
in the name of the original petitioner and minor girl.
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4.1 He would further further submit that the welfare of
the child is paramount while deciding the issue that whether the
permission for selling the undivided share is to be granted or
not.
4.2 He would further submit that, in the present case, on
going through the evidence on record, it appears that the learned
trial Court has permitted the original petitioner to sell the share
of minor at a meager price, whereas during the course of cross-
examination, petitioner have offered three times more amount
than the sale price. However, the learned District Court ignored
the said proposition and committed serious error.
4.3 He would further submit that the Doctrine of parens-
patriae is to be applied by the learned District Court while
making a scrutiny of the issue. Oversight thereof landed the
impugned order in illegality.
4.4 He would further submit that in the case where
mother acted against the welfare of the minor and further tried
to sell the immovable property at a very meager price and thus,
he submitted that such selling at the meager price is not in the
interest of minor.
4.5 He would further submit that even petitioner failed to
prove necessity to sell the immovable property and yet, the
learned trial Court in ignorance of provision of the law as well as
fact, passed the impugned, unjust and illegal order, and
therefore, submitted to allow the Special Civil Application and to
quash and set aside the impugned judgment and order.
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4.6 As far as maintainability of the Special Civil
Application is concerned, he would submit that in view of
Section 8(5)(c) of the Hindu Minority and Guardianship Act,
1956 (hereinafter referred to as the 'Act of 1956') read with
Section 29 of the ‘GW Act’, an appeal shall lie from an order of
the Court refusing permission to the natural guardian to do any
of the act mentioned in sub-section (2) of Section 8 of the 'Act of
1956', but if a permission has been granted, no remedy is
provided to the aggrieved person by the law to file any appeal
and in that event, the aggrieved person cannot be left remediless
and thus, the petitioners have filed the Special Civil Application
under Article 227 of the Constitution of India. In support of this
submission, he referred to the judgment in First Appeal No. 346
of 2022 of this Court.
4.7 In view of above, he submitted to allow this petition
and to quash and set aside the impugned judgment and order
and to dismiss the Civil Misc. Application.
5. Per contra , learned advocate Mr. N.P. Pandya
appearing for the other side - original petitioner supports the
impugned judgment and submits that the Special Civil
Application is not maintainable.
5.1 He would further submit that, under Article 227 of
the Constitution of India, this Court cannot deal with the facts of
the case. The supervisory jurisdiction under Article 227 of the
Constitution of India is limited to find out that whether any
error, much less factual error, has been committed by the
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learned trial Court, which is in the nature of flagrant abuse or
violation of fundamental Principle of law or justice.
5.2 He would submit that, in the present case,
petitioners under the guise of filing the Special Civil Application
insist that this Court should reappreciate the evidence on
record, reweigh them as available under the first appeal. He
would submit that, under the Special Civil Application, it is not
permissible to recapitulate the facts of the case or to sift and
weigh the evidence again. Therefore, he submitted that this
petition should be dismissed at the threshold with cost.
5.3 He referred to the judgment of this Court in First
Appeal No. 332 of 2008 with Special Civil Application No. 3080
of 2009 in support of his contention and submitted to dismiss
this petition.
6. Having heard learned advocates for both sides, at the
outset, I may refer to the judgment of the Honourable Supreme
Court in the case of Garment Crafts v. Prakash Chand Goel ,
reported in (2022) 4 SCC 181 , whereby the Honourable
Supreme Court has examined the ambit and scope of Article 227
of the Constitution of India. Para 15 and 16 of the judgment
being relevant are extracted as under:-
“ 15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order is contrary to
law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdiction
exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising supervisory
jurisdiction does not act as a court of first appeal to
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reappreciate, reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory
jurisdiction is not to correct every error of fact or even a
legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior
court or tribunal [Celina Coelho Pereira (Ms) and Others v.
Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC
217]. The jurisdiction exercised is in the nature of
correctional1 jurisdiction to set right grave dereliction of
duty or flagrant abuse, violation of fundamental principles
of law or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like when there is no
evidence at all to justify, or the finding is so perverse that
no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be exercised to
ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001)
8 SCC 97 has observed:-
“ 6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of power
under this article involves a duty on the High Court to keep
inferior courts and tribunals within the bounds of their
authority and to see that they do the duty expected or
required of them in a legal manner. The High Court is not
vested with any unlimited prerogative to correct all kinds of
hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or tribunals. Exercise
of this power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of duty
and flagrant violation of fundamental principles of law or
justice, where if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well settled that the
High Court while acting under this article cannot exercise
its power as an appellate court or substitute its own
judgment in place of that of the subordinate court to correct
an error, which is not apparent on the face of the record.
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The High Court can set aside or ignore the findings of facts
of an inferior court or tribunal, if there is no evidence at all
to justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which the
court or tribunal has come to.”
7. Considering the scope and ambit of exercising of
power and jurisdiction by the High Court under Article 227 of
the Constitution of India, which is to keep inferior Courts and
tribunals within the bounds of their authority and to see that
they do the duty expected or required of them in a legal manner.
The High Court, which is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong decision
made within the limit of the jurisdiction of the subordinate Court
or tribunals, permits to exercise power of interfering with the
orders of the Court or tribunal is restricted to the case of serious
dereliction of the duty and flagrant violation of the fundamental
principle of law or justice, whereby it is demand that if High
Court does not interfere, a grave injustice remains uncorrected.
8. Needless to state that the High Court exercising the
supervisory jurisdiction under Article 227 of the Constitution of
India does not act as a Court of first appeal to reappreciate,
reweigh the evidence or facts upon which the determination
under challenge is based.
9. Coming to the facts of the case, petitioner has filed a
Civil Misc. Application No.7 of 2023 under Section 20 of the ‘GW
Act’ read with Section 29 of the ‘GW Act’ seeking permission to
sell the undivided share of minor Khushi involved in a suit land
along with the petitioner herself.
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10. The learned District Court is expected to adjudicate
the matter on the Principle of applying Doctrine of parens
patriae . The welfare of the minor is paramount while deciding
the alienation of the minor's property. The Principle of ‘Best
interest of the child’ has to be observed throughout. However,
looking to the nomenclature of Sections 6 and 8 of the 'Act of
1956', which is an enabling provision by which the Court can
exercise the jurisdiction to permit the natural guardian to
alienate any of the property of a minor, it does not seems to be in
adversarial form.
11. Here, the Court exercising the role of parens patriae
has to judicially scrutinize the best interest of the child and if
found, can give the permission to the guardian to sell the
undivided share.
12. Section 6 of the 'Act of 1956' defines ‘the natural
guardian of Hindu minor’ and whereas, Section 8 defines ‘Powers
of the natural guardians’. Section 6 reads as under:-
“ 6.Natural guardians of a Hindu minor.-
The natural guardians of a Hindu, minor, in respect of the
minor's person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
property), are-
(a) in the case of a boy or an unmarried girl-the father, and
after him, the mother: provided that the custody of a minor
who has not completed the age of five years shall ordinarily
be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl-the mother, and after her, the father;
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(c) in the case of a married girl-the husband;
Provided that no person shall be entitled to act as the
natural guardian of a minor under the provisions of this
section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by
becoming a hermit ( vanaprastha ) or an ascetic (yati or
sanyasi )
Explanation.- In this section, the expressions 'father' and
'mother' do not include a step-father and a step-mother.”
12.1 Section 8 reads as under:-
“ 8. Powers of natural guardian.—
(1) The natural guardian of a Hindu minor has power,
subject to the provisions of this section, to do all acts which
are necessary or reasonable and proper for the benefit of the
minor or for the realisation, protection or benefit of the
minor’s estate; but the guardian can in no case bind the
minor by a personal covenant.
(2) The natural guardian shall not, without the previous
permission of the court,—
(a)mortgage or charge, or transfer by sale, gift, exchange or
otherwise, any part of the immovable property of the minor;
or
(b) lease any part of such property for a term exceeding
five years or for a term extending more than one year
beyond the date on which the minor will attain majority
(3) Any disposal of immovable property by a natural
guardian, in contravention of sub-section (1) or sub-section
(2), is voidable at the instance of the minor or by any person
claiming under him.
(4) No court shall grant permission to the natural guardian
to do any of the acts mentioned in sub-section (2) except in
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the case of necessity or for an evident advantage to the
minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall
apply to and in respect of an application for obtaining
permission of the court under sub-section (2) in all respects
as if it were an application for obtaining the permission of
the court under section 29 of that Act, and in particular—(
a) proceedings in connection with the application shall be
deemed to be proceedings under that Act within the meaning
of section 4A thereof;
(b) the court shall observe the procedure and have the
powers specified in sub-sections (2), (3) and (4) of section 31
of that Act; and
(c) an appeal shall lie from an order of the court refusing
permission to the natural guardian to do any of the acts
mentioned in sub-section (2) of this section to the court to
which appeals ordinarily lie from the decisions of that court
(6) In this section “court” means the city civil court or a
district court or a court empowered under section 4A of the
Guardian and Wards Act, 1890 (8 of 1890), within the local
limits of whose jurisdiction the immovable property in
respect of which the application is made is situate, and
where the immovable property is situate within the
jurisdiction of more than one such court, means the court
within the local limits of whose jurisdiction any portion of the
property is situate.”
13. In view of Section 6(a) in case of unmarried girl,
firstly, the father is natural guardian and after him, the mother
with the proviso that the custody of a minor, who has not
completed the age of 5 years, shall ordinarily be with the mother.
By virtue of Section 6, the natural guardian would be in respect
of the minor's person as well as in respect of minor's property,
excluding his or her undivided interest in the joint family
property.
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14. Under Section 8, the natural guardian of the Hindu
minor has power to do all acts which are necessary or
reasonable and proper for the benefit of the minor or for the
realization, protection or benefit of the minor's estate, but such
act of the guardian would not bind the minor by a personal
covenant.
14.1 Section 8(2) provides that, the natural guardian shall
not without the previous permission of the Court transfer,
alienate or change the hand of any part of the immovable
property of minor or shall not lease the part of such property for
a term exceeding 5 years.
14.2 By Section 8(3), the minor has been given authority
to set any alienation made by the natural guardian in violation of
Section 8(1) or Section 8(2) as voidable none other.
14.3 Section 8(4) defines that what the Court has to do
while granting a permission to the natural guardian to do any
act mentioned in Section 8(2). It states that the Court shall not
grant permission except in case of necessity or for evident
advantage of the minor.
15. In view of above, what particularly comes out
considering Section 8(3) of the 'Act of 1956' that, if any
immovable property of the minor is alienated without following
Section 8(1) or 8(2) of the 'Act of 1956', only minor can set it as
voidable or any person claiming under him and not any third
party. Therefore, no third party has been given any right to
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question the disposal of the immovable property by a natural
guardian or objecting to the application filed by the natural
guardian, seeking disposal of the immovable property of the
minor. What is necessary and evident is to see that the petitioner
establishes necessity of sale or such sale or disposal is in an
evident advantage to the minor.
16. The Supreme Court in case of Shephali
Chakraborty v. The State of West Bengal , reported in 2026
LiveLaw (SC) 597 examined the purport of law in detail. Para 7
to 14 read as under:-
“7. Having appreciated the distinction between ex post and
ex ante, we delve into Section 8 of the HMGA, which is an
example of the latter. It governs the powers, limitations and
consequences of a guardian's actions in respect of a minor's
property. It reads:
"8. Powers of natural guardian. (1) The natural guardian of a
Hindu minor has power, subject to the provisions of this
section, to do all acts which are necessary or reasonable
and proper for the benefit of the minor or for the realization,
protection or benefit of the minor's estate; but the guardian
can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous
permission of the court,- (a) mortgage or charge, or transfer
by sale, gift, exchange or otherwise, any part of the
immovable property of the minor; or (b) lease any part of
such property for a term exceeding five years or for a term
extending more than one year beyond the date on which the
minor will attain majority.
(3) Any disposal of immovable property by a natural
guardian, in contravention of sub-section (1) or sub-section
(2), is voidable at the instance of the minor or any person
claiming under him.
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(4) No court shall grant permission to the natural guardian to
do any of the acts mentioned in subsection (2) except in case
of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall
apply to and in respect of an application for obtaining the
permission of the court under sub-section (2) in all respects
as if it were an application for obtaining the permission of
the court under section 29 of that Act, and in particular- (a)
proceedings in connection with the application shall be
deemed to be proceedings under that Act within the meaning
of section 4A thereof; (b) the court shall observe the
procedure and have the powers specified in sub-sections (2),
(3) and (4) of section 31 of that Act; and (c) an appeal shall
lie from an order of the court refusing permission to the
natural guardian to do any of the Acts mentioned in sub-
section (2) of this section to the court to which appeals
ordinarily lie from the decisions of that court.
(6) In this section, "Court" means the city civil court or a
district court or a court empowered under section 4A of the
Guardians and Wards Act, 1890 (8 of 1890), within the local
limits of whose jurisdiction the immovable property in
respect of which the application is made is situate, and
where the immovable property is situate within the
jurisdiction of more than one such court, means the court
within the local limits of whose jurisdiction any portion of the
property is situate."
It is divided into four substantive parts-Part I- General
powers of a natural guardian; Part II - Restrictions on
alienation of immovable property; Part III Legal effect of
unauthorized alienation; and Part IV- Standard to be applied
by the Courts in adjudicating the application.
Under sub-section (1), a natural guardian is permitted to
perform all acts that are necessary or reasonable for the
benefit of the minor or for the protection and proper
management of the minor's estate. This power is framed in
broad terms, recognising that day-to-day management often
requires flexibility. However, the statute is careful to make
this authority expressly subject to the restrictions contained
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in sub-section (2), thereby making it clear that managerial
powers do not extend to unfettered rights of disposition.
Sub-section (2) draws a clear line when it comes to dealings
with immovable property. It prohibits a natural guardian
from selling, gifting, exchanging, mortgaging, or otherwise
encumbering a minor's immovable property without first
obtaining the permission of the Court. The same restriction
applies to leases that are longterm in nature, namely those
exceeding five years or extending beyond one year after the
minor attains majority. The requirement of prior judicial
approval reflects legislative caution against transactions
that could permanently affect the minor's proprietary rights.
The consequences of violating these restrictions are
addressed in sub-section (3). A transaction entered into by
the guardian without the requisite Court permission is not
void ab initio, but voidable at the instance of the minor or
any person claiming through the minor. This distinction is
significant. It preserves the minor's right, upon attaining
majority, to either affirm the transaction or seek its
avoidance, depending on whether it ultimately serves their
interests.
Sub-section (4) guides the Court in deciding whether
permission should be granted in the first place. The Court
must be satisfied that the proposed transaction is either
necessary or demonstrably for the benefit of the minor.
Courts have consistently applied this standard with a
degree of strictness, placing the burden squarely on the
guardian to justify the transaction. Considerations of
family's convenience or the guardian's personal obligations
are, in our view, insufficient unless they can be shown to
translate into a tangible advantage for the minor.
Section 8, therefore, embodies the principle that a natural
guardian holds the minor's property in a fiduciary capacity.
The provision seeks to balance potentially competing
interests, i.e., allowing practical management of the minor's
estate and subjecting, what may be, irreversible decisions to
judicial scrutiny, thereby ensuring that the welfare of the
minor remains paramount.
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8. Principles as can be deduced from various judgments of
this Court are:
1. Section 8 imposes a statutory restraint on the powers of a
natural guardian in respect of a minor's immovable property
and requires prior permission of the concerned Court for
alienation as a protective measure. [Vishwambhar & Ors. v.
Laxminarayan, (2001) 6 SCC 163]
2. An alienation of a minor's immovable property made
without the permission contemplated under Section 8(2) is
not void ab initio but voidable at the instance of the minor or
any person claiming through the minor. [Vishwambhar &
Ors. v. (supra)]
3. The right to avoid unauthorized alienation accrues to the
minor upon attaining majority and must be exercised within
the period of limitation prescribed by law. [Nangali Amma
Bhavani Amma v. Gopalkrishnan Nair, (2004) 8 SCC 785]
4. Avoidance under Section 8(3) need not necessarily be
effected through a formal declaratory suit and may be
manifested through clear and unequivocal conduct
inconsistent with the continued validity of the transaction,
provided such conduct occurs within limitation. [K. S.
Shivappa v. Smt. K. Neelamma, 2025 INSC 1195]
5. Reliefs such as recovery of possession or assertion of
exclusive title are contingent upon the prior avoidance of the
impugned alienation, and so long as the transaction remains
unavoided, it continues to bind the minor's interest.
[Murugan & Ors. v. Kesava Gounder (Dead) through LRs,
(2019) 20 SCC 633]
6. Section 8 governs alienation of a minor's separate or self-
acquired property and does not apply to alienation of
undivided joint family property effected in accordance with
traditional principles of Hindu law. [Sri Narayan Bal & Ors.
v. Sridhar Sutar & Ors., (1996) 8 SCC 54]
7. The requirement of prior permission under Section 8 is
rooted in the welfare of the minor and must be applied
purposively, with reference to whether the transaction is
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necessary or demonstrably beneficial to the minor. [See
generally, G. Annamalai Pillai v. District Revenue Officer &
Ors., (1993) 2 SCC 402]
8. By rendering unauthorized alienations voidable rather
than void, Section 8 balances the protection of a minor's
proprietary interests with the need to preserve certainty and
stability in property transactions. [See generally,
Vishwambhar & Ors. (supra)]
9. The requirement of judicial oversight when it comes to the
protection of the interests of a minor, is an example of the
doctrine of parens patriae as embedded with Section 8.
Before going further, a brief detour to the origins of this
doctrine and its manifestations in the Indian Legal System,
would be, in our view, justified.
10. The doctrine of parens patriae, translates to "parent of
the nation," and emanates from the idea that the State bears
a moral and legal responsibility toward those who are
incapable of safeguarding their own interests. It emerges at
the intersection of several strands of political and legal
theory that challenge a purely formal conception of
autonomy. In the liberal tradition, John Stuart Mill, in On
Liberty, John W. Parker and Son (1859) famously articulated
the harm principle, arguing that State interference with
individual liberty is generally unjustified except to prevent
harm to others. Crucially, however, Mill expressly excluded
children and persons lacking full rational capacity from the
scope of this principle, recognising that autonomy
presupposes capacity. This implicit exception opens
normative space for protective intervention. More recently,
Martha Albertson Fineman, Robert W. Woodruff Professor of
Law, Emory University School of Law, Georgia, USA through
works such as The Autonomy Myth: A Theory of
Dependency, The New Press (2004) and The Vulnerable
Subject, 20 Yale Journal of Law and Feminism 1 (2008), has
reframed the debate entirely by arguing that vulnerability is
a universal and enduring feature of the human condition,
and that the State has an affirmative obligation to design
institutions that respond to this vulnerability. Here itself we
may take note of the fact that in Indian classical tradition
this doctrine was well established. We may only take one
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example as to what Kautilya has said: The king shall
provide the orphans, (bála), the aged, the infirm, the
afflicted, and the helpless with maintenance. He shall also
provide subsistence to helpless women when they are
carrying and also to the children they give birth to. Elders
among the villagers shall improve the property of bereaved
minors till the latter attain their age; so also the property of
Gods (Kautilya's Arthashastra, translated by R.
Shamasastry).
In the pages of history, it is found that this responsibility
vested in the English Crown, which was regarded as the
ultimate guardian of infants and persons of unsound mind
or mental incapacity. Eventually, this function came to be in
the domain of the Courts where the modus operandi was not
the usual adversarial method and instead, a continuing and
supervisory jurisdiction, informed by considerations of
welfare rather than strict legal entitlement. It is this
equitable conception of judicial responsibility that travelled
into colonial legal systems, including India, and continues to
inform modern constitutional and statutory frameworks.
In Annie Besant v. G. Narayaniah, 1914 SCC OnLine PC 40,
it was made clear that in matters concerning minors, Courts
do not enforce parental or proprietary rights but act solely to
secure the welfare of the child. This reasoning was
reinforced decades later in McKee v. McKee, [1951] 1 All ER
942 where the Privy Council held that a Court exercising
jurisdiction over a child cannot abdicate its responsibility by
mechanically enforcing foreign custody orders. The decisive
consideration, irrespective of comity or prior determinations,
is the welfare and happiness of the child. These decisions
illustrate the core parens patriae feature: the Court's
obligation is independent, non-deferential, and welfare-
centric.
Post-independence, this doctrine has acquired constitutional
significance. The expansive interpretation of Article 21, read
with Article 15(3), are substantive instances of the
commitment to protection of dignity, development, and care.
The Court's authority to do so is not a creation of statute but
emanates from its constitutional role in giving practical
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meaning to fundamental rights where vulnerability
undermines autonomy.
11. Statutorily, the legal regime also has many such
examples. The Guardians and Wards Act, 1890 exemplifies
the classical parens patriae structure. Section 7 empowers
Courts to appoint a guardian only where such appointment
is necessary for the welfare of the minor while Section 17
directs the Court to be guided exclusively by welfare
considerations rather than claims of right. Importantly, the
Act provides for continuous judicial control even upon duly
appointed guardians, particularly in matters involving the
minor's property. These provisions firmly establish the idea
that guardianship is a Court- supervised responsibility.
A similar logic operates within the Code of Civil Procedure,
1908, especially Order XXXII. By prohibiting minors and
persons of unsound mind from conducting litigation on their
own, and by mandating the courts to appoint guardians ad
litem, the Code requires active intervention on the part of the
Court in furtherance of access to justice and ensuring that
litigation does not become a site of exploitation or prejudice.
Modern welfare legislation makes the doctrine even more
explicit. We take two examples. The Juvenile Justice (Care
and Protection of Children) Act, 2015 is premised on the
understanding that parental authority may fail, and that the
State must be prepared to step in as a surrogate caregiver.
The powers vested in Child Welfare Committees to remove
children from harmful environments, place them in
institutional or foster care, and supervise rehabilitation
represent a direct exercise of parens patriae. The State here
does not merely regulate family relations; it assumes
responsibility for the child's holistic well-being.
The Mental Healthcare Act, 2017 is another such example.
The statute balances the autonomy of an individual vis-à-vis
those circumstances in which informed consent becomes
difficult/impossible. In such cases, Mental Health Review
Boards, and Courts are authorised to appoint
representatives, and take all steps as may be necessary in
the interest of the person/patient. This framework
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exemplifies how parens patriae translates into ground
reality.
In the Bharatiya Nagarik Suraksha Sanhita, 2023, parens
patriae, can be seen across many Sections. For example,
Section 35(7) restricts the arrest of elderly and infirm
persons for less serious offences without the prior approval
of a senior officer. Custodial safeguards such as Section 46
(no unnecessary restraint), requirements to inform persons of
the grounds of arrest and their rights (Sections 47-48), and
provisions for the medical examination of the accused
(Sections 51-53) ensure dignity and welfare in custody. In
addition to this, Section 398 provides for witness protection
schemes, reflecting care for witnesses at risk during
proceedings.
12. Considering all the above examples, a clear pattern can
be discernible. Authority, held privately of whatever nature
is never absolute. 'Welfare' supersedes all else as the
governing standard. Courts and statutory bodies do not
merely adjudicate disputes; they assume responsibility.
Philosophy, constitutional values, common law tradition, and
statutory provisions show that parens patriae is not a
doctrine of narrow application, but an important tool to
protect interests wherever vulnerability displaces agency.
13. Similar to Section 8 HGMA, other jurisdictions also have
the requirement of Court approval. For instance, Section
1821 of the German Civil Code (Accessible at:
https://www.gesetze-iminternet.de/englisch_bgb/englisch_
bgb.html#p7021) enjoins the guardian to seek ratification
from the Family Court if they seek to dispose of a plot of
land among other things and Section 1822 similarly lists out
scenarios in which permission is required. Similarly,
Sections 387-1 and 387-3 of the French Civil Code (Original
version in the French Accessible at-
https://www.legifrance.gouv.fr/codes/article_lc/LEGIART1
000031322948/2026-01-15) lists out activities which the
guardian of the minor cannot do without prior permission of
the guardianship judge.
14. In such a case as the present one, at the core of the
Court's duty is the responsibility to safeguard the welfare of
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the minor, a principle that goes beyond consent or
convenience. While the approval of a guardian may indicate
familial agreement which is well established to be a power
of limited nature. In Hunooman Persaud Panday v.
Mussumat Babooee Munraj Koonweree, 1856 SCC OnLine
PC 7, the Privy Council observed: "... The power of the
Manager for an infant heir to charge an estate not his own,
is, under the Hindoo law, a limited and qualified power. It
can only be exercised rightly in a case of need, or for the
benefit of the estate. But where, in the particular instance,
the charge is one that a prudent owner would make, in order
to benefit the estate, the bona fide lender is not affected by
the precedent mismanagement of the estate. The actual
pressure on the estate, the danger to be averted, or the
benefit to be conferred upon it, in the particular instance, is
the thing to be regarded...". It cannot replace the Court's
independent assessment of the minor's interests. The Court
concerned needs to meticulously examine whether any
proposed arrangement could compromise the child's present
or future rights, taking into account that the minor cannot
fully comprehend or appreciate the consequences of such
transactions. The best interest of the child is not passive
consideration but a vigorous principle that requires foresight,
caution, and meticulous scrutiny in every matter affecting
the minor's property-'for an evident advantage to the minor.
In assessing the merits of any transaction, the Court must
evaluate the likely advantages against the risks. It must
determine whether the minor will receive benefits that are
secure, measurable and enforceable. At the same time, it
must remain vigilant to possible negative effects such as
diminution of value, delay in realization of benefits, or
exposure to ventures that could prejudice the minor's
undivided share. This evaluation of risk and benefit ensures
that sanction of any arrangement is on the basis of child's
genuine welfare properly balanced against convenience of
adult co-owners.
Even where a guardian consents to the arrangement, as in
this case, the Court must ensure that adequate safeguards
are in place to protect the minor's interests. Such safeguards
are not intended to restrict the legitimate rights of adult co-
owners but to preserve the minor's stake in the property in a
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manner. At the same time, the Court should be aware that
not only the child in question but also adult co-owners
possess lawful rights to derive reasonable benefit from the
property. The presence of a minor should not unduly limit
the ability of adults to engage in productive or economically
beneficial transactions. The task of the Court is to reconcile
these interests carefully, enabling everyone including adults
to utilize the property in ways that do not undermine or
impair the minor's security or future options.”
17. Having considered the aforesaid dictum, the Court is
required to see that though there is no legal challenge to the
impugned judgment and order, the Court, yet examined on the
factual matrix that whether the decision of the learned District
Court to permit the petitioner to sell the undivided share of the
minor Khushi is true and correct from the point of view of best
interest of child or to her advantage.
18. In para 13, 14 and 15, the learned District Court has
given the following reasons to permit the petitioner to sell the
undivided share of minor Khushi, which are translated from
Gujarati to English and extracted as under:-
“13. Considering the available record and documentary
evidence in this matter, the disputed property was acquired
by the minor Khushi's father, Chitalkumar, with
independent ownership rights in the year 2009, and copies
of the revenue records pertaining to this have been produced
as documentary evidence vide Mark-44 in this matter. Upon
looking at the entries in this document, it is proved that the
disputed property was acquired by Chitalkumar Himatlal
Kavar with independent ownership rights. Not only this, for
removing his own name, Chitalkumar's father Himatlal
Bhanjibhai had made an affidavit in favor of deceased
Chitalkumar, Pravinaben Himatlal and Rinaben Himatlal on
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Date: 22/04/2008, and according to that affidavit, out of the
disputed property Survey No. 92, 1 Hectare Are. Sq.M. 3-18-
58 was acquired by Pravinaben Himatlal (Minor's
grandmother), Chitalkumar (Minor's father), Rinaben
Himatlal (Minor's aunt). For which a mutation entry has been
entered in the revenue record and it has continued
accordingly. Thereafter, regarding the minor's grandmother
Pravinaben Himatlal and minor's aunt Rinaben Himatlal
Patel having relinquished their rights from the disputed
property, an affidavit was executed on Date: 04-06-2009,
and all their rights of any kind from the disputed property
were willingly and voluntarily relinquished in favor of minor
Khushi's father Chitalkumar Himatlal. Thus, from the year
2009 until deceased Chitalkumar passed away in the year
2016, the disputed property continued in the revenue
records solely and exclusively in the independent ownership
and physical possession of deceased Chitalkumar Himatlal
Kavar. The very first objection was raised by the objectors of
this matter, Pravinaben Himatlal Kavar and Rinaben
Himatlal Kavar and Himatlal Bhanjibhai Kavar, before the
Collector in the year 2022, which objection has been rejected
in the year 2023, and an order has been passed by the
competent revenue authority in favor of the applicant minor
Khushi Chitalkumar and her mother Alpaben regarding the
disputed property. Which order has not been challenged
anywhere by the objectors and therefore the order remains
permanent. Thus, after a period of 12 years had elapsed
since deceased Chitalkumar acquired the disputed property
with full ownership rights, the objection raised has been
cancelled by the competent authority. Regarding the said
property, the objectors Pravinaben Himatlal Kavar or other
objectors Raghavjibhai Bhanjibhai, Manibhai Bhanjibhai,
Jayantibhai Bhanjibhai having any kind of share, right-
interest, or authority, they have not instituted any kind of
legal proceedings anywhere. And hence Pravinaben
Himatlal Kavar and Himatlal Bhanjibhai Kavar and Rinaben
Himatlal Kavar had established it by relinquishing their
rights in favor of Chitalkumar and his heirs, it remains
permanent, and against it, none of the objectors have even
the slightest right or authority to raise an objection, as this
court believes. And therefore, the various arguments
advanced by the learned advocate for the objectors, Shri
V.M. Jethloja, and the objections produced vide Mark-28 and
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Mark-33, and the documentary evidence produced in
support thereof, the evidence from Mark-46 to Mark-55, are
in favor of the objectors and are not liable to be admitted
against the applicant party, as this court believes. At this
stage, it is necessary to note that, Himatlal Kavar had sold
the property acquired by him through inheritance rights in
his share to Nilamben Vrajlal Radiya via registered sale
deed on Date: 25-07-2022. Hence, this court believes that
the objections of the objector party are not tenable.
14. The owner of the disputed property in this matter was
deceased Chitalkumar Himatlal Kavar; that Chitalkumar
Himatlal Kavar died intestate. Therefore, it is necessary to
look at Section-8 of the Hindu Succession Act. As stated in
Section-8, the property of a Hindu male dying intestate
devolves firstly upon the heirs of Class-I, secondly upon
Class-II and Class-III, and finally as given in the Schedule.
Heirs of Class-I and Class-II include son, daughter, widow,
mother. The applicant Khushi Chitalkumar is the daughter of
deceased Chitalkumar. As her guardian, the applicant
Alpaben is the wife of the deceased. Pravinaben, who
submitted the objection vide Mark-28, is the mother of the
deceased. Hence, all these three heirs are included in the
Schedule of Class-I. Now, when Pravinaben Himatlal Kavar
relinquished all kinds of rights-interests, authority in favor of
Chitalkumar in the year 2009, that relinquishment of rights-
interests, authority has been complied with by the institution
established by law and that order remains permanent till
date. Then, out of the heirs of deceased Chitalkumar, only 2
heirs remain as mentioned in the Schedule of Class-I, and
they are the applicant party in this matter. Apart from them,
there being no other heir, the disputed property of deceased
Chitalkumar is acquired solely and exclusively by Alpaben
Chitalkumar and minor Khushi Chitalkumar as per law.
Furthermore, the objections raised vide Mark-33, they are
the uncles of Chitalkumar by relation, so they are included
in Class-II(4). When the heirs of Class-I are alive, the heirs of
Class-II do not acquire any right in the property of the
deceased in any way. Hence also, the objections raised vide
Mark-28 and Mark-33 are not tenable. Not only this,
regarding the application and the documentary evidence
produced with the application, it cannot be believed that the
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documentary evidence has been falsely created merely for
the purpose of making the present application. Whatever
transaction has taken place regarding the disputed property
between Chitalkumar's parents and sister, it took place 12
years prior to this application; all those documentary
evidences have been produced in this matter. There is no
reason to believe that they are fabricated or false, and
therefore, the objections raised by the objector party are not
acceptable.
15. In this matter, the main objective of the law under which
the present application has been made by the applicant
party is to protect the interests of the minor and to ensure
that the interests of the minor are not harmed. Alpaben is
the mother of the minor daughter of Chitalkumar. As she
herself is less educated, she indicates her inability to
provide appropriate education or upbringing to the minor.
Then, so that the minor's future is secure, she receives
proper study, proper education, and the minor can live her
life properly, if permission is granted to sell the acquired
property, the minor's future will become good and secure,
and therefore if permission is granted, no harm is going to
occur. As far as the question of the minor ceasing to be an
agricultural khatedar (account holder) is concerned, as per
the submission of the applicant party, agricultural land in
the name of the minor will be purchased within the
prescribed time limit as per the rules of the Government, and
due to this, she will continue as an agricultural khatedar
and will not cease to be one, hence the objection raised by
the objector party that she will cease to be so, is believed by
this court to be not admissible. The learned advocate for the
objectors has produced the judgment of the Hon'ble Punjab
and Haryana High Court in the case of Meena Davar vs.
General Public in Civil Revision No. 920/2021 dated
08/07/2021. In the said judgment, there was a dispute
regarding joining the grandparents as parties in the
application, wherein the principle established is that, while
granting permission to sell the minor's share, the court
should very carefully consider all aspects. Only for necessity
and apparent benefit should permission for sale be granted.
In this matter, the minor cannot do farming and obtain
agricultural produce in the property acquired by her from her
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father. The objectors have not raised any objection nor is
there any evidence that the minor can get farming done
through someone else and obtain agricultural produce. Now,
when the minor cannot use this property, then only for the
benefit of the minor, the property should be sold and
whatever market value is received from it should be used for
the good future of the minor and for the benefit of the minor,
so that a secure future is built for the minor; what could be a
better alternative than this?. Under such circumstances,
keeping in mind the principle in the judgment of the Hon'ble
Punjab and Haryana High Court, but the application of the
applicant party being admissible, nevertheless keeping in
mind the minor's future and until she attains adulthood
regarding the specific amount she receives, making a
suitable arrangement by keeping it as a fixed deposit in the
bank for a specific term for the purpose of her future
expenses, subject to the condition of her receiving the
interest, this court believes to be proper, just and
appropriate.”
(Translated from Gujarati to English for better understanding)
19. On reappreciating the finding, I find that the learned
trial Court has not committed any error. In the case on hand,
the grandmother and some of the uncles of deceased
Chintalkumar came forward to object the petition filed before the
learned District Court.
20. The factual matrix requires a glance that the
husband of petitioner – Alpaben - Chintalkumar is expired.
Now, petitioner – Alpaben is living separately along with the
minor Khushi and in para 4 of the petition, she has stated that
she is not getting any agricultural produce from the agricultural
land. Petitioner is less educated, she has no independent income
and she is not in a position to bear the expenses for minor's
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education and other living expenses, and therefore, it compelled
the petitioner to sell the undivided share of minor.
21. According to this Court, the objector, although did
not bothered to maintain the minor or widow of Chintalkumar,
who are otherwise a part of the Kavar family, came forward to
harass them, making frivolous objections without any locus-
standi . According to this Court the learned District Court has
rightly permitted Alpaben for selling the undivided share of
minor Khushi in the suit land.
22. It is also noticeable that the objector having no locus-
standi to question the petition filed by the petitioner, dragged
the petitioner in a long drawn litigation. Petitioner, a widow of
Chintalkumar Kavar and natural guardian of minor Khushi,
asked the relief to permit to sell the undivided share of minor for
the welfare of the minor Khushi. Perhaps, the petitioners herein
have some personal grievance with the original petitioner –
Alpaben.
23. The facts reveals that the son of the petitioner No.1
herein expired and now his widow, original petitioner – Alpaben
for any reasons is not residing in her matrimonial home. The
agricultural land was purchased by Chintalkumar and on his
death, it is inherited in favor of Alpaben and minor Khushi.
Alpaben being a natural guardian of minor Khushi intends to
sell the share in the immovable property, which could not have
been bear by the petitioners herein and therefore, they have
involved the original petitioners in this extended litigation. This
is nothing but sheer abuse of the process of the Courts.
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24. In view of above, according to this Court, the petition,
neither legally nor factually, is maintainable and deserves the
fate of only dismissal, that too, with cost.
25. Before parting with the judgment, the judgments
which learned advocate Mr. Jamshed Kavina relies upon, are
factually distinguishable and thus, do not render any assistance.
26. In view of above reasons, the petition stands
dismissed with the cost of Rs.10,000/- to be paid to the minor -
Khushi within a period of 04 weeks from the date of receipt of
this judgment.
27. Interim-relief, if any, stands discontinued.
27. Petitioners are further directed to place on record the
receipt of paying the aforesaid cost to the minor – Khushi before
the District Legal Services Authority, Morbi.
28. If the petitioners fail to make payment of the cost to
the minor – Khushi, as aforesaid, the District Legal Services
Authority, Morbi shall issue a recovery certificate against them
and the amount of cost shall be recovered as arrears of land
revenue and shall be paid to the minor – Khushi.
29. Record and Proceedings, if any, shall be sent back to
the concerned Court forthwith.
Sd/-
(J.C. DOSHI, J.)
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After pronouncement of the aforesaid judgment, learned
advocate Mr. Jamshed Kavina requests this Court to continue
the interim-relief by suspending the implementation and
execution of this judgment. This Court, in the aforesaid
judgment, categorically held that the petitioners have no locus-
standi to file this kind of application.
In view of that, the submission of learned advocate Mr.
Jamshed Kavina cannot be accepted, and accordingly, it is
rejected.
Sd/-
(J.C. DOSHI, J.)
Raj
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