Gop please help urgent
Sandhya
(Querist) 08 February 2013
This query is : Resolved
I am a Junior Lawyer, i want to file a case to get Court permission to sell the minor share of immovable property.
If you have any format please share with me
Thank you in Advance
prabhakar singh
(Expert) 08 February 2013
In a Hindu case permission would be sought under section 8 of HSA.The Guardians and Wards Act, 1890, shall apply.The form of the application would be as required by it's section 10 which runs as below:
THE GUARDIANS AND WARDS ACT,1890
[Act No. 8 of Year 1890, dated 21st. March, 1890]
CHAPTER I: PRELIMINARY
1. Title, extent and commencement
(1) This Act may be called the Guardians and Wards Act, 1890.
(2) It extends to whole of India l[except the State of Jammu and Kashmir].2[***]
(3) It shall come into force on the first day of July, 1890.
2. [Repealed by the Repealing Act, 1938, s. 2 and Sch.]
3. Saving of jurisdiction of Courts of Wards and Chartered High Courts
This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by 3[any competent Legislature, authority or person in 4[any State to which this Act extends]]; and nothing in this Act shall be construed to effect or in any way derogate from , the jurisdiction or authority of any Court of Wards , or to take away any power possessed by 5[any High Court 6[* * *]].
4. Definitions
In this Act, unless there is something repugnant in the subject or context,-
(1) "minor" means a person who , under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;
(2) "guardian" means a person having the care of the person of a minor or of his property or of both his person and property;
(3) "ward" means a minor for whose person or property or both there is a guardian;
(4) "District Court" has the meaning assigned to that expression in the Code of Civil Procedure, 1882 (14 of 1882)7, and includes a High Court in the exercise of its ordinary original civil jurisdiction;
8[(5) "the court" means-
(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or
(b) where a guardian has been appointed or declared in pursuance of any such application-
(i) the court which, or the court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or.
(c) in respect of any proceeding transferred under section 4A, the court of the officer to whom such proceeding has been transferred;]
(6) "Collector" means the chief officer in charge of the revenue administration of a district and includes any officer whom the State Government, by notification in the Official Gazette may, by name or in virtue of his office, appoint to be a Collector in any local area or with respect to any class of persons, for all or any of the purposes of this Act;
9[(7) [* * *]; and
8. "prescribed" means prescribed by rules made by the High Court under this Act.
4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers
(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.
(2) The Judge of a District Court may, by order in writing, transfer at any stage any proceeding under this Act pending in his court for disposal to any officer subordinate to him empowered under sub-section (1).
(3) The Judge of a District Court may at any stage transfer to his own court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the court of any other such officer.
(4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the judge of the District Court may , by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the court which appointed or declared the guardian.
CHAPTER II: APPOINTMENT AND DECLARATION OF GUARDIANS
5. Power of parents to appoint in case of European British subjects
[Rep. by the Part B States (Laws) Act, 1951 (3 of 1951), s. 3 and Schedule].
6. Saving of power to appoint in other cases
In the case of a minor, 10[***] nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject.
7. Power of the court to make order as to guardianship
(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian,
the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
8. Persons entitled to apply for order
An order shall not be made under the last foregoing section except on the application of -
(a) the person desirous of being, or claiming to be, the guardian of the minor; or
(b) any relative or friend of the minor; or
(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or
(d) the Collector having authority with respect to the class to which the minor belongs.
9. Court having jurisdiction to entertain application
(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides, or to a District Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.
10. Form of application
(1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882)7, for the signing and verification of a plaint, and stating, so far as can be ascertained,-
(a) the name, sex, religion, date of birth and ordinary residence of the minor;
(b) where the minor is a female, whether she is married, and if so, the name and age of her husband;
(c) the nature, situation and approximate value of the property, if any, of the minor;
(d) the name and residence of the person having the custody or possession of the person or property of the minor;
(e) what near relations the minor has, and where they reside;
(f) whether a guardian of the person or property or both, of the minor has been appointed by any person entitled or claiming to be entitled by the law to which the minor is subject to make such an appointment;
(g) whether an application has at any time been made to the court or to any other court with respect to the guardianship of the person or property or both, of the minor, and if so, when, to what court and with what result;
(h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;
(i) where the application is to appoint a guardian, the qualifications of the proposed guardian;
(j) where the application is to declare a person to be a guardian, the grounds on which that person claims;
(k) the causes which have led to the making of the application; and
(l) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.
All in all one has to state those grounds which makes the transfer(sale)a necessity and beneficial for the minor,eg for his study,medical or other needs for which no alternative is available.
