2026 INSC 621 CA@SLP(C) 25053 of 2025 Page 1 of 26

REPORTABLE

IN THE SUPREME COURT OF INDA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._.........................OF 2026

(@ Special Leave Petition (Civil) No. 25053 OF 2025)

SHEPHALI CHAKRABORTY …APPELLANT(S)

VERSUS

THE STATE OF WEST BENGAL …RESPONDENT(S)

J U D G M E N T

SANJAY KAROL J.

Leave Granted.

2. The appellant - Shephali Chakraborty, as the mother of

Master Basab Chakraborty

1

, sought permission from the concerned

Court

2

, in compliance with Section 8 of the Hindu Minority and

1

Minor

2

District Judge, Darjeeling

CA@SLP(C) 25053 of 2025 Page 2 of 26

Guardianship Act, 1959

3

to dispose of the latter’s share which he

had inherited at the death of her husband/his father Late

Mr. Basudeb Chakraborty. Such application

4

was rejected

5

, and

affirmed by the High Court

6

. Thus aggrieved, she has presented this

appeal.

3. By way of background the above stated position, it may be

recorded that the land in question, a part of which is owned by the

minor, was originally procured by his paternal great-grandfather,

one Nagendra Nath Das in 1957. Initially, 1/7

th

of the said property

devolved upon Bela Chakraborty, his daughter and the Minor’s

grandmother in the year 1965. Subsequent to her passing away, in

1978, her share was divided between her three children- two sons,

namely, Biplab and Basudeb Chakraborty and daughter, Beauty

Sarkar. The appellant is the wife of the second son, who died on 25

th

January 2018, when the minor was approximately nine years old,

having been born on 4

th

March 2009. In the year 2022, the heirs in

interest of this family, decided that the property be given to a

developer, which would get them money and also flats within the

development, in exchange. An agreement was entered into, with M/s

3

HMGA

4

Misc Judicial Act VIII Case No. 20 of 2022

5

In terms of Order Dated 1

st

July 2023

6

In terms of Order Dated 2

nd

August 2024 in FMAT No 26/2023

CA@SLP(C) 25053 of 2025 Page 3 of 26

Shivam Estates and Developers. The portion of the agreement

7

, in

so far as it relates to the present appellant and the minor are as

below:

“AND WHEREAS one being No. (6) co-owner Bela

Chakraborty, Wife of Late Bibhuti Bhusan Chakraborty

and Daughter of Late Nagendra Nath Das died intestate

on 13.05.1978 leaving behind her the following legal

heris to inherit her 1/6

th

share in the said land measuring

0.13 acres in equal share as per provision of Hindu

Succession Act, 1956 :

(1) Sri Biplab Chakraborty – Son

(2) Sri Basudev Chakraborty – Son

(3) Smt. Beauty Sarkar – Daughter

AND WHEREAS one of the legal heir of Late Bela

Chakraborty being son BASUDEV CHAKRABORTY

also died intestate on 25.01.2018 leaving behind him the

following legal heirs to inherit his share in the 1/6

th

share

of Late Bela Chakraborty in the said land measuring 0.13

acres in equal share as per provision of Hindu

Succession Act, 1956 :

(1) SMT. SHEPHALI CHAKRABORTY – Wife

(2) MASTER BASAB CHAKRABORTY – Son

…

ARTICLE - XI

MISCELLANEOUS

3] The owners will have only the exclusive right to

the Flats and portions allotted to them as owner’s

allocation as mentioned in schedule – ‘B’ free from all

costs and charges.

4] That in consideration of the right and authority

given to the developer by the owners, the developer by

7

Developer

CA@SLP(C) 25053 of 2025 Page 4 of 26

the owners, the developer will construct flats for the

owners as per the specifications contained in Schedule B

below. The developer, allocation, shall pay an amount of

Rs. 10,00,000/- (Rupees 10 lakhs) only and which will

be payable as per details given in the schedule – ‘B’.

…

SCHEDULE “B” ABOVE REFERRED TO

(OWNER’S ALLOCATIO N)

At First Floor

i) Frond side flat being No.1A allocated to Sri

Adhir Kumar Das being Owner No. (I)

ii) Middle side flat being No. 1B allocated to the

legal heirs of Late Bela Chakraborty being owners No.

(6) to (9) namely Sri Biplab Chakraborty, Shephali

Chakraborty, Basab Chakraborty and Smt. Beauti

Sarkar….”

4. In order to act upon the intention to transfer the property to

the Developer, or in order to act in pursuance of the Development

Agreement, the appellant applied to the concerned Court. The Court,

in rejecting the application, stated thus:

“…As per Section 6(5) of Hindu Minority and

Guardianship Act the provisions of the Guardians and

Wards Act shall apply to an application for obtaining

permission from the Court to transfer minor’s property

in all respects as it were an application for obtaining the

permission of the Court under Section 29 of the

Guardians and Wards Act. As per Section 31(2) of the

Guardians and Wards Act the order granting the

permission shall recite the necessity or advantage to the

minor for transferring the property.

It is specifically stated in the petition and in evidence

affidavit that the development of property is essential for

CA@SLP(C) 25053 of 2025 Page 5 of 26

the future of the minor as well as the better utilization of

the same. Except such bald statement it is not described

why and how it is essential for the future of the minor. It

is the petitioner’s case that she has no resource to

maintain the child including his upbringing, medical

treatment and education. It is not revealed whether the

minor’s father left any other property or assets. It is not

elaborated how 1/3rd share in a flat in the proposed

building whose identity remains in dark, is essential for

the future of the child.

It is not mentioned how the property is utilised at

present. When the present utilization is not disclosed,

the Court is not in a position to compare it to the

proposed future utilization and come to a decision as to

whether it is better or not…”

5. On appeal, the Circuit Bench of the High Court at Jalpaiguri,

agreed with the findings of the concerned Court and, so affirmed the

dismissal of the application.

6. Ex ante and ex post indicates the point at which State power

or judicial scrutiny is exercised. Ex ante means an assessment made

before the occurrence of an event, based on anticipation of conduct

or harm, whereas ex post scrutinizes the legality and liability after

the relevant act, after the fact. This distinction is essential to

constitutional safeguards and statutory remedies along with judicial

review.

The former is most evident in preventive mechanisms such as

preventive detention and anticipatory bail. Preventive detention

under Articles 22(3) to 22(7) of the Constitution authorises

CA@SLP(C) 25053 of 2025 Page 6 of 26

deprivation of personal liberty not as punishment for past conduct

but to prevent anticipated acts prejudicial to public order or national

security. Recognising the exceptional nature of such power, the

Court in Maneka Gandhi v. Union of India

8

, held that even

preventive procedures must satisfy the test of fairness,

reasonableness, and non-arbitrariness under Articles 14 and 21.

Similarly, anticipatory bail under Section 438 CrPC

constitutes an ex ante judicial remedy, invoked prior to arrest. In

Gurbaksh Singh Sibbia v. State of Punjab

9

, the Court clarified that

anticipatory bail rests on a predictive assessment of the likelihood

of misuse of arrest powers and is not dependent on a determination

of guilt. The Court held that such relief is inherently forward-

looking and discretionary, unlike ex post adjudication in a criminal

trial.

On the other hand, ex post reasoning forms basis on which the

determination of criminal liability and punishment stands. Article

20(1) of the Constitution prohibits retrospective criminalisation and

enhanced punishment, thereby mandating that guilt and penalty be

determined after the fact and as per the law of the time. In Rao Shiv

Bahadur Singh v. State of Vindhya Pradesh

10

, the Court held that

8

(1978) 1 SCC 248

9

(1980) 2 SCC 565

10

AIR 1953 SC 394

CA@SLP(C) 25053 of 2025 Page 7 of 26

Article 20(1) embodies a fundamental principle of criminal

jurisprudence, reinforcing the idea that penal consequences must

follow proven past conduct and not anticipatory assumptions.

The legal system employs both ex ante and ex post

mechanisms in Licensing regimes. Prior approvals, and regulatory

compliance requirements function as ex ante controls aimed at

preventing foreseeable harm, particularly in sensitive domains such

as the liberty of an individual once administrative action is taken,

Courts exercise ex post judicial review to examine legality,

procedural fairness, and reasonableness. In Tata Cellular v. Union

of India

11

, this Court emphasised that judicial review is concerned

not with the merits of the decision but with the decision-making

process, necessarily making it an exercise after the fact.

Another illustrative application of the ex ante/ex post

distinction arises in family law. Grounds such as cruelty, adultery,

and desertion under Section 13 of the Hindu Marriage Act, 1955 are

adjudicated ex post, based on evidence of past conduct and its

cumulative impact on the marital relationship. In Samar Ghosh v.

Jaya Ghosh

12

, the Court underscored that cruelty must be assessed

in light of the totality of circumstances and the effect of prior

conduct, reaffirming the retrospective nature of matrimonial

11

(1994) 6 SCC 651

12

(2007) 4 SCC 511

CA@SLP(C) 25053 of 2025 Page 8 of 26

adjudication. In contrast, maintenance proceedings under Section

125 CrPC operate in an ex ante manner, as a social-welfare measure

intended to prevent destitution and vagrancy. In Bhuwan Mohan

Singh v. Meena

13

, the Court observed that Section 125 CrPC is

designed to secure immediate subsistence and dignity for a

dependent spouse, enabling early judicial intervention even before

final resolution of matrimonial disputes.

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-

13

(2015) 6 SCC 353

CA@SLP(C) 25053 of 2025 Page 9 of 26

section (2), is voidable at the instance of the minor or

any person claiming under him.

(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

CA@SLP(C) 25053 of 2025 Page 10 of 26

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 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 long-

term 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

CA@SLP(C) 25053 of 2025 Page 11 of 26

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

14

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,

14

Saroj v. Sunder Singh, (2013) 15 SCC 727; Rani v. Santa Bala Debnath, (1970) 3

SCC 722

CA@SLP(C) 25053 of 2025 Page 12 of 26

what may be, irreversible decisions to judicial scrutiny, thereby

ensuring that the welfare of the minor remains paramount.

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

15

]

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

16

]

4. Avoidance under Section 8(3) need not necessarily

be effected through a formal declaratory suit and may be

15

(2001) 6 SCC 163

16

(2004) 8 SCC 785

CA@SLP(C) 25053 of 2025 Page 13 of 26

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

17

]

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

18

]

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

19

.]

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

necessary or demonstrably beneficial to the minor.

17

2025 INSC 1195

18

(2019) 20 SCC 633

19

(1996) 8 SCC 54

CA@SLP(C) 25053 of 2025 Page 14 of 26

[ See generally, G. Annamalai Pillai v. District Revenue

Officer & Ors.

20

,]

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

21

famously articulated the harm

20

(1993) 2 SCC 402

21

John Stuart Mill, On Liberty. John W. Parker and Son (1859).

CA@SLP(C) 25053 of 2025 Page 15 of 26

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

22

through works such as The Autonomy Myth: A Theory of

Dependency

23

and The Vulnerable Subject

24

, 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 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

22

Robert W. Woodruff Professor of Law, Emory University School of Law, Georgia,

USA

23

Martha Albertson Fineman The Autonomy Myth: A Theory of Dependency, The

New Press (2004)

24

Martha Albertson Fineman “The Vulnerable Subject,” 20 Yale Journal of Law and

Feminism 1 (2008)

CA@SLP(C) 25053 of 2025 Page 16 of 26

villagers shall improve the property of bereaved minors till the

latter attain their age; so also the property of Gods.

25

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

26

, 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

27

where the Privy Council held that a

Court exercising jurisdiction over a child cannot abdicate its

responsibility by mechanically enforcing foreign custody

25

Kautilya’s Arthashastra, translated by R. Shamasastry

26

1914 SCC OnLine PC 40

27

[1951] 1 All ER 942

CA@SLP(C) 25053 of 2025 Page 17 of 26

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

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

CA@SLP(C) 25053 of 2025 Page 18 of 26

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.

CA@SLP(C) 25053 of 2025 Page 19 of 26

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 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

CA@SLP(C) 25053 of 2025 Page 20 of 26

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

28

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

29

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

the minor, a principle that goes beyond consent or convenience.

28

Accessible at: https://www.gesetze-im-

internet.de/englisch_bgb/englisch_bgb.html#p7021

29

Original version in the French Accessible at-

https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000031322948/2026-01-15

CA@SLP(C) 25053 of 2025 Page 21 of 26

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

30

, 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

30

1856 SCC OnLine PC 7

CA@SLP(C) 25053 of 2025 Page 22 of 26

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 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

CA@SLP(C) 25053 of 2025 Page 23 of 26

carefully, enabling everyone including adults to utilize the

property in ways that do not undermine or impair the minor’s

security or future options.

15. In essence, the Court has to, on this factual matrix,

examine whether, a portion in land being 0.13 acres in total

(5662.8 sq.ft.) is better when weighed from the point of view

of ‘best interest of child’-“to his advantage” or 1/3

rd

share in a

residential development on the first floor totaling 1198 sq. ft

being 399.33 sq. ft. along with Rs.10,00,000/-

31

.

16. From the perspective of the minor, an undivided share

in undeveloped land often remains a notional interest with little

immediate utility. Although it signifies ownership in law, such

an interest may yield no benefit for years, may be difficult to

realise or monetise, and may be encumbered by disputes or

delays, particularly where the property is jointly held. In

contrast, the receipt of a constructed residential unit together

with a definite monetary consideration transforms into assets

that are immediately usable and capable of direct benefit. A

house provides a secure form of property that may be occupied,

rented, or preserved for future use, while the monetary

component offers liquidity that can be applied towards the

31

See Page 83 of the paper book

CA@SLP(C) 25053 of 2025 Page 24 of 26

minor’s education, health, or general advancement. In these

facts, it appears that a structured arrangement that results in

development and yields specific returns in the form of

residences and cash replaces a passive, potentially vulnerable

asset, be it to encroachment or otherwise, with property of

assured utility and value.

The mixture of illiquid and liquid assets grants a balance

to the holder imbued with flexibility which, in certain cases,

may collectively be better than owning a part of an

undeveloped land. From an equitable standpoint, the

conversion of an interest in land into tangible, enforceable

assets can be considered a step towards enhancing the minor’s

welfare. We may note that when the two possibilities of a

built-up structure versus an empty piece of land held by several

persons jointly is considered in the present facts, it points us to

the conclusion that monetary consideration and a portion of a

built up structure will be more aligned to the minor’s interest.

This, however, is no proposition of law and every time the

concerned court is confronted with such a situation, the

determination of which of the two situations would serve the

minor better, has to be made in the facts and circumstances of

the case.

CA@SLP(C) 25053 of 2025 Page 25 of 26

17. In that view of the matter, it is difficult to accept the

view of the learned District Judge, Darjeeling, as confirmed by

the High Court, to be the correct one. Additionally, we note

that there is no merit in the finding of the concerned Court that

the identity of the parties who shall hold the other 2/3

rds

of the

proposed flat is in the dark, for the agreement entered into with

the developers itself details how the property came to rest with

the current owners.

18. With these observations the appeal is allowed. The

appellant is hereby granted the necessary permission to realise

the Development Agreement. The same shall be, however,

subject to certain conditions-

(i) The amount received as part of the development

contract shall be kept with a nationalized bank with auto

renewal, till the minor attains majority. However, liberty is

granted to the guardian to seek modification of such terms from

the concerned Court, to be considered on its own merits,

depending upon the prevailing circumstances.

(ii) Change, if any, to the Development Agreement,

shall not be made without the approval of the concerned Court.

CA@SLP(C) 25053 of 2025 Page 26 of 26

(iii) The co-owners of the flat so received, if desirous

of selling their share at a time prior to the minor’s attaining

majority, shall inform the Court and seek its permission.

(iv) The District Judge, Darjeeling (the concerned

Court) may impose other conditions, as it may see fit, and pass

a reasoned order therefor.

Pending application(s), if any, shall stand disposed of.

…………………………………… …………J.

(SANJAY KAROL)

……………………………..……… ………..J.

(NONGMEIKAPAM KOTISWAR SINGH)

New Delhi

June 3, 2026