Transfer of immovable property by persons domiciled in
India is governed by the provisions of Transfer of Property Act, 1882. The term
"Transfer of Property", as envisaged under section 5 of the Act means
an act by which a living person conveys the property to one or more living
persons. Living person includes a company or association or body of individuals,
whether incorporated or not. However, not all living persons are competent to
transfer the immovable property. Certain pre-requisites are envisaged under the
statute which restricts alienation of property by a person who is not competent
to enter into a contract. One such restriction is transfer of immovable property
by a minor.
Hindu Minority and Guardianship Act 1956(Act 32 of 1956)
is one such legislation which is applicable to all Hindus. It is worth-while to
deliberate who is a Hindu as per the provisions of the Act. It may be generally
said that all persons other than Mohammedans, Christians and Jews are Hindus. According
to the definition a person is considered as Hindu by religion in any of its forms
or developments including Veerashaiva ingayat, followers of Brahmo Prarthana or
Arya Samaj, Buddhists, Jain and Sikh.
According to Indian Majority Act, 1875, which applies to
all persons domiciled in India and to all matters except marriage, divorce and adoption,
every person whose property has assumed superintendence by a Court of Wards is
deemed to have attained majority at the completion of 21 years and in all other
cases at the completion of 18 years. Guardian means a person having care of the
person of a minor or his property or both person and his property.
1.Natural guardians;
2.Testamentary guardians,
3.Guardians appointed by the Court;
and
4.De facto guardians.
Under Section 6 of the Hindu Minority and Guardianship
Act, 1956, father is the natural guardian of the person and of the separate property
of his minor son or a minor unmarried daughter and after him, the mother. Theexpression father and mother does not include step-father or step-mother. In case
of adopted son, the guardian is the adoptive father and thereafter the adoptive
mother. But in case of a child who has not completed five years of age mother
is the natural guardian. The guardian of Hindu minor is entitled to take care of
minor's property except minor's share in joint family property. The Kartha isentitled to take care of a minor's share in joint family property. In case of an
illegitimate boy or an illegitimate unmarried girl, the mother is the natural guardian
and after her, the father. In the case of a minor married girl, the husband is the
natural guardian. It may be generally questioned as to the provision for minor
unmarried girl, as the marriage of a minor is an offence. But, a person is
disqualified from acting as a natural guardian under this Act if he ceases to be
a Hindu or has finally renounced the world by converting himself to a hermit.
Prior to the enactment of the Hindu Minority and
Guardianship Act, 1956, the natural guardian had wide powers to deal with the
property of his minor son or daughter whereby he could mortgage, sell, create acharge even without permission of the Court. However, this unfettered power of
the natural guardian to alienate the property of his minor children has been
regulated by the Hindu Minority and Guardianship
Act, 1956 which was enacted keeping in view the interest
and welfare of the minor children of a parent. Section 5 read with Section8(2)
of the Act envisages that the Guardian cannot, without previous sanction of the
court, alienate the minor's property in any manner, subject to the exception of
lease not exceeding five years or not exceeding one year beyond the date when
the minor attains majority. However, purchasing a property on behalf of a minor
does not require court's permission.
Section 8 of the Hindu Minority and Guardianship Act, 1956
defines the powers of a natural guardian. The natural guardian of a Hindu minor
has powers to do all acts which are necessary and reasonable for the benefit of
the minor minor and realization or protection of minor's estate property. However,
there are restrictions on his powers which are imposed by the natural guardian
requires of the court in case of mortgage, charging, transferring the property by
sale, gift and exchange or by any other mode.
In case of lease also, he cannot lease the property beyond
five years or a term extending more than one year beyond the date on which
minor attains majority without prior permission of the court. Thus the naturalguardian can lease the property of minor for a maximum period of five years provided
the minor does not attain majority during the lease period. In the case of a
minor who has completed 14 years of age, the property may be leased for five
years. In the case of minor who has completed 17 years of age, the property may
be leased for 2 years only so that lease would expire within one year after the
minor attains majority.
Any transfer of property without the prior permission of
court can be set aside at the instance of minor or any person claiming under him.
Such transactions are voidable. It is left to the option of the minor to agree
or not to agree for such transfers without the prior permission of the court.
He may exercise his option on attaining majority and within three years of coming
to know of such transfer.
The courts will grant permission for any disposal of immovable
property or leasing beyond the period mentioned above by the natural guardian
only in case of necessity or for an evident advantage of the minor. The application
for such permission has to be made as per the provisions of the Guardians and
Wards Act 1980, (sections 29 and 31). The competent court is City Civil Court,
District Court or a Court empowered under section 4A of Guardians and Ward Act
1980, within whose jurisdiction the immovable property is situated. There is a
provision for appeal.
As stated earlier, no guardian should be appointed for
the undivided interest in the joint family property of the minor. However, the jurisdictional
High Court may appoint a guardian for the undivided interest of the minor in
joint family property. The court is the final authority to decide whether any guardianship
will benefit the minor or not.
Testamentary Guardians mean the persons appointed through
Will as guardians of minor and his property. They deal with the property belonging
to the minor subject to such restrictions, as are imposed in the Will. A father
may appoint any other person as guardian by Will if the mother has expired
earlier. In case the father appoints a guardian by Will even if the mother is alive
it is not operative as the mother succeeds him as natural guardian. Mother may
also appoint a guardian by Will, who succeeds her. In case she does not appoint
any guardian by Will, the guardian appointed by the father through Will
succeeds as guardian after the death of the mother.
A Hindu mother mayappoint any other person as guardian. The guardian so appointed shall act as
natural guardian of the minor subject to the restrictions imposed in the Act
and the Will. In case of minor being a girl, the powers of the appointed guardian
will come to an end on the marriage of minor girl and her husband will be the guardian
thereafter. Only a person who has attained majority is competent to become a guardian.
No guardian can be appointed for the undivided interest in the joint family property
of the minor. However, the jurisdictional High Court may appoint a guardian forthe undivided interest of the minor in joint family property.
Prior to enactment of the Hindu Minority and Guardianship
Act, 1956, a testamentary guardian appointed under the Will used to enjoy wide
powers. After enactment of this Act certain sweeping changes have been
introduced. It recognizes the power of a Hindu father to appoint a guardian for
safeguarding the property of the minor through Will. However, no testamentary
guardian can be appointed by the father for any undivided interest of the minor
in a joint family property. This Act gives equal right to the mother to appoint
a testamentary guardian of a minor child after the death of the father and even
if he is alive when he has been declared as disentitled to act as the natural guardian
by an order of the court or has ceased to become a Hindu due to change in
religion or has renounced the world permanently. Further, the aforesaid Act also
empowers the widow to appoint a testamentary guardian in respect of the person and
property of her minor children.
Appointment of Guardian
by the Court is governed by the provisions of the Guardians and Wards Act, 1890.
Section 7 of the Guardians and Wards Act, 1890 provides that where the court is
satisfied that the appointment of a Guardian is necessary to safeguard the interest
of the minor child, it can make an order appointing and declaring a person to
be the Guardian of a minor of his person or property or both. No order appointinganother person to be the guardian can be made by the court until the powers of
the guardian already appointed or declared have ceased to be so under the provisions
of this Act.
Section 17 of the Act provides that the court, at the time
of appointing or declaring the guardian of a minor, should take into consideration
the age, sex and religion of the minor apart from the character and capacity of
proposed guardian, wishes, if any, of a deceased parent and the existing or
previous relationship of the proposed guardian with the minor child or his
property. Further, court can appoint a Guardian only for the separate propertyof the minor and not for the undivided interest in the joint family property.
A Guardian appointed by the court has no power to
alienate the minor's property without the permission of the court. Alienation
without such permission is voidable at the instance of the minor and the person
affected by such sale. However, if alienation has been made after obtaining necessary
sanction from the court, the same cannot be challenged by the minor or any
other person except in case of fraud.
A person who is not the ad hoc guardian and does not act
for a specific purpose as a guardian, but manages the affairs of the minor in guardian
or guardian appointed by the court could be referred to as De facto Guardianalthough in strict sense of the term there is nothing in the law described as a
de facto guardian.
However, the authority of any person to deal with or dispose
of any property of a Hindu minor on the ground of his being a de facto guardian of such a minor has
been totally abrogated and any alienation by such a guardian is void ab initio and
the same cannot be ratified subsequently by the minor after attaining majority.
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