A
minor is legally is not eligible to enter into any contract, nor can he sell or
purchase immovable property.Minors are mentally and physically unable to
manage their properties, which they may acquire by way of inheritance, gift or
settlement. He has to be represented by another person who is a major. So, many people use power of Attorney to deal with the property of minor, which is not
correct. In infancy they require care, thereafter proper education. There are
laws that govern the rights of the minors, and also duties, responsibilities
and rights of the person who looks after them.
Hindu Minority
and Guardianship Act 1956 (Act 32 of 1956) is one such legislation which is
applicable to all Hindus. It is worthwhile to deliberate who is a Hindu as per
the provisions of the Act. It may be generally said 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 Veerashiva, Lingayat, followers of Brahmo, Prarthana or Arya Samaj,
Buddhists, Jain and Sikh.
Minor
Minor is a
person who has not completed eighteen years of age. It should be carefully read
and understood, that a person will be minor until he completes eighteen years
of age.A person who completes seventeen years and enters eighteenth year is a
minor. Even a person who has completed 17 years and 364 days is a minor. A person attains majority on completion of eighteen years of age and enters
nineteenth year, that after eighteenth birthday as per English calendar.
Guardian
Guardian is a
person who is a major and having the care of the minor, or minor’s property or
both. There are four types of guardians;
(1) Natural Guardian
(3) A Guardian appointed or declared by
Court
(4) A person empowered to act as guardian by or under any enactment
relating to any court of wards.
Natural guardians
Parents are the natural guardians who take care of
the minor children. Father is the natural guardian of a boy or unmarried girl
and in the absence of father; the mother is the natural guardian. But in case
of a child who has not completed five years of age mother is the natural
guardian. In case of an illegitimate boy or illegitimate unmarried minor girl,
the mother would be the natural guardian and thereafter the father.
In case of
married minor girl, husband would be 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. Though the law prohibits child marriage, still it is
practiced as a custom.Further any offence invites penalty/punishment only, but
a minor married girl cannot be left to fend for herself. The guardian of Hindu minor is entitled to take care of minor’s property except minor’s share in
joint family property. Kartha is entitled to the care of a minor’s share in
joint family property. The natural guardian ceases to be the guardian if he
converts from Hindu religion or becomes ascetic (Hermit Sanyasi, Vanaprastha.
The expressions
father and mother does not include step-father or step-mother. In case of
adopted son, the natural guardian is the adoptive father and there after the
adoptive mother.
Powers of Natural Guardian
Section 8 of
the Hindu Minority and Guardianship Act 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 minor and realization or
protection of minor’s estate/property.However, there are restrictions on his
powers, which are imposed by the Act.The natural guardian requires prior
permission of the court in case of mortgage, charging, transferring the
property by sale, gift and exchange or by any other mode.
In case of leasing 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 natural guardian can lease the
property of minor for a maximum period of five years provided the minor do not
attain majority during the lease period. In case of a minor who has completed
13 years of age, the property may be leased for five years. In 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 the permission for any disposal of immovable property or leasing beyond
the period mentioned above by natural guardian only in case of necessity or for
an evident advantage of 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, which is within the jurisdiction of where the immovable property is situated. There is a provision
for appeal.
Testamentary Guardian
Testamentary
Guardians mean the persons appointed through Will as guardians of minor and his
property. They function when both the natural guardians have expired.The father may
appoint any other person as guardian by a 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 as natural guardian. Mother
may also appoint a guardian by Will, who succeeds her. In case if 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 may appoint 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 end on the marriage of minor girl and her husband will be the
natural guardian thereafter. Only person who has attained majority is competent
to become a guardian and not another minor.
As stated
earlier, no guardian should be appointed for the undivided interest in the joint
family property of the minor. However, in the jurisdictional High court may
appoint a guardian for undivided interest in joint family property. The court
is the final authority to decide whether any guardianship will benefit the
welfare of the minor or not.
The sale of any property in which minor as interest requires prior permission of the court. If not, such transactions are
voidable at the instance of minor. Minor may enforce his right to such
properties after he attains majority. As such while purchasing the property of
a minor it is very important to insist on the permission of the court for such
transfer.
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