Guardians and Wards Act, 1890 - Section 25 & Hindu Minority and Guardianship Act, 1956- Sections 6 and 13
J.M. Malik, J.
• Whether the respondent can raise cross objection orally at the time of finalhearing of the appeal in violation of judgment rendered by Apex Court in itslatest authority reported in Banarsi and Ors v. Ramphal?
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• The main allegation in the appeal is that a cloud has beencast over the immovable property of a minor. Sh. Khicchu was the owner ofproperties executed a Will andbequeathed the above said properties in favor of Deepak Makwana, aged about 11years respondent No. 1, his maternal grandson. After his death, respondent No. 1has become the absolute owner of the above said properties.
• Babu Prakash, Respondent No. 2, was the father of the minor. It was alleged that he is addicted to liquor and gambling. The present suit was filed through the mother. Further, the minor plaintiff alleged that his father had acted illegally against hiswelfare and unauthorizedly parted with and delivered the possession of shop.
• Consequently, the suit was filed praying for a decree of permanent injunction restraining hisfather from alienating, transferring and parting with the property and appellants be asked to pay mesne profits in respect of shop.
• The Trial Court decreed the suit against theappellants for recovery of possession in respect of Shop and also directed that respondent No. 1 was entitled to arrears of mesne profits @Rs. 120/-.
• The First Appellate Court modified the decree in favor of respondent No. 1 anddirected that respondent No. 1/plaintiff shall be entitled to mesne profits @ Rs. 200/-per month with effect from 23.8.1989 till actual realization, instead of Rs. 120/- permonth as directed by the Trial Court.
• The main question raised by the Appellant was whether the respondent can raise cross objection orally at the time offinal hearing of the appeal in violation of judgment rendered by the Hon'bleSupreme Court in case titled Banarsi and Ors v. Ramphal 2SCR22.
• That the Civil Judge hasrightly decided that the tenancy was for month to month, there was no writtenagreement, in the present case and it be deemed that tenancy was from month tomonth which can be determined by either party by giving 15 days' notice. Underthese circumstances, the father was competent to let out the property on lease.
• It was urged that inabsence of the agreement of tenancy, adverse inference should be drawn againstrespondent/plaintiff and it should be held that letting was for the period of less thanfive years and thus valid.
• The minor plaintiff alleged that his father had acted illegally against hiswelfare and unauthorizedly parted with and delivered the possession of shop to the appellants/defendants No. 2 & 3 by receiving asum of Rs. 65,000/- from the appellants.
The Court agreed with the findings given by the First Appellate Court. The First Appellate Court came tothe conclusion that the case property was sold. This is an indisputable fact that thefather of the child had received a sum of Rs. 65,000/- which goes to show in unmistakable terms that the said amount was received as "advance" though before the Court it was pleaded in contradiction to the terms of receipt that it was a security deposit. with security or pagri. Advance is given whenever something is to be sold. Further, the tenants do not have any right to carry out the extensive repairs of walls, ceiling and floors. It is apparent thatappellants were working as if they were the owners of the suit property. It is also notdisputed that the appellants had obtained water and electricity connections in theirown name as owners.
The written statement filed by the father along with the appellants is clearlyindicative of the fact that all the three are working cheek by jowl, having the sameinterest.
It must be borne in mind that the interests betweenmother and the child do not clash but the interests between the father and child doclash.Under these circumstances, it cannot be said that the jurisdiction of the Civil Court isbarred.In the result, the appeal stands admitted to the extent mentioned and the minor will be at liberty to execute the decree for the recovery of possession of shop and to recover the occupational charges.