Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 2020 of 2018 Appellant :- Smt. Tripti Gupta And 2 Others Respondent :- Ambuj Maheshwari And 2 Others Counsel for Appellant :- Kshitij Shailendra Counsel for Respondent :- Manish Tandon
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard Sri Kshitij Shailendra, learned counsel for the appellants and Sri Manish Tandon, learned counsel appearing for the respondents No. 1 and 2.
This appeal has been preferred under the Hindu Minority & Guardianship Act, 1956 against the order dated 22.1.2018 passed by the Additional Sessions Judge, Court No.8, Moradabad.
One Nitin Kumar died on 20.07.2014 leaving behind his widow appellant No.1 and a daughter and son appellants No. 2 and 3.
The respondent No.2 Nilesh Kumar is his real brother. Both of them jointly owned a flat No.41 on the ground floor Gaur Gracious, Kanth Road, Moradabad which they had purchased on 22.06.2012.
On account of the death of Nitin Kumar his widow appellant No.1 applied for permission to sell/transfer the share of late Nitin Kumar in the said flat so that she may be able to maintain herself, her two children and to meet out expenses of their education.
The respondent No.2 Nilesh Kumar the other co-owner of the aforesaid flat raised no objection, but even then the permission was refused by the court below by the impugned order dated 22.01.2018 for the reason that the appellant No.1 failed to produce sufficient evidence to show that she required funds for the education of her children.
There is no dispute that the flat in question is joint in the name of late Nitin Kumar and his brother Nilesh Kumar. After the death of Nitin Kumar his share in the said flat had devolved upon the appellants.
The appellants are presently living in another flat No.2039 situate in Gaur Gracious, Kanth Road, Moradabad which was purchased by late Nitin Kumar on 26.06.2009.
The appellants are not having any independent income or earning to maintain themselves. They have a shelter in the shape of one of the flats and intend to sell their half share in the flat in question so that they may earn their livelihood and for education of the children from the interest arising from the investment of the sale proceeds thereof.
There is nothing on record to establish that the appellants are not in need of maintenance or that they have any other source from which they can maintain themselves or can fund the education of the children.
The owners of the property are the best persons to decide the manner in which their property is to be utilised. Therefore, if they have decided to part with it so as to utilise its sale proceeds to maintain themselves and the other co-sharer of it is not raising any objection rather they have agreed to transfer/sell it and have even brought a prospective purchaser ie. respondent No.1 with whom they have already entered into an agreement to sell the aforesaid flat, we do not find any good reason to deny permission for the sale of the flat. No evidence was necessary to establish that funds were needed for the education of the two children when the facts are speaking for themselves and no one is disputing either the right of the appellants as co-sharer of the said flat.
In these facts and circumstances, we find no justification on part of the court below to have refused permission to the appellants to sell the flat in question.
Accordingly, we set aside the order dated 22.01.2018 and permit the appellants to transfer/sell the half share of late Nitin Kumar in the said flat on behalf of two minors.
The appeal is allowed.
Order Date :- 30.4.2018 piyush