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 Veerashaivaingayat, 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, createacharge 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 thenaturalguardian 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 majorityand 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 bemade as per the provisions of the Guardians and Wards Act 1980, (sections 29and 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 Hindumother 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, thejurisdictional High Court may appoint a guardian forthe undivided interest ofthe 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 hehas 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 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 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 factoGuardianal though 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 afterattaining majority.
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