Thursday, 3 April 2014


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 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 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,Lingayat, followers of Brahrno 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 property.

Guardians for a minor may be classified as under:
1.   Natural Guardians
2.   Testamentary Guardians
3.   Guardians appointed by the Court
4.   De facto Guardians

1. Natural Guardian
Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the 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.The expression 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 injoint family property.The Kartha is entitled to takecare of a minor's share injoint 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. A person is disqualified from acting as a natural guardian under this Act ifhe 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 a charge 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 has been enacted keeping in view the interest and welfare of the minor children. Section 5 read with Section 8(2) of the Act envisages that a 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.

2. Testamentary Guardian
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. 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 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 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 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 for the 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 ifhe 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.

3. Guardian appointed by court
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 as Guardian of a minor of his person or property or both. No order appointing another 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 property of 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.

4. Defacto Guardian
A person who is not the adhoc guardian and does not act for a specific purpose as a guardian, but manages the affairs of the minor in the same manner as the natural guardian or guardian appointed by the court could be referred to as Defacto Guardian although in strict sense of the term there is nothing in the law to describe the 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 abilities and the same cannot be ratified subsequently by the minor after attaining majority. Thus, it is advisable to the intending buyers of immovable property with minor's interest to take all the necessary precautions and due care before proceeding to buy the property to avoid any future complications.

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