Alienation of Minor's Property by Guardian

Sec.8 of Hindu Minority and Guardianship Act, 1956 is the replica of Guardians and Wards Act, 1890

It is manifest that Clauses (a) and (b) of Section 29 of the 1890 Act are in pari materia with Clauses (a) and (b) of sub-section (2) of Section 8 of the 1956 Act. Similarly, Section 30 of 1890 Act is identical in terms (except for a marginal inconsequential change) with Section 8(3) of the 1956 Act. The language of these provisions bear such (similarity) as to leave no manner of doubt that the framers merely lifted the relevant provisions from the earlier 1890 Act to place them in Section 8 of the 1956 Act

The Full Bench of Punjab and Haryana High Court in the Case of Surta Singh Vs. Pritam Singh  : AIR1983P& H114 held:

“It is common ground that before the enactment of the Hindu Minority and Guardianship Act in 1956, the Guardianship and Wards Act of 1890 held the field and was equally applicable to the Hindu minors as well. Even after the latter enactment the former Act still holds sway and as would appear hereinafter the Hindu Minority and Guardianship Act is in a way supplemental to the earlier statute”

SEC. 6 Hindu Minority and Guardianship Act. 1956 defines Natural guardians of a Hindu minor.- 

The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-
 

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

(c) in the case of a married girl-the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)

Explanation.- In this section, the expressions 'father' and 'mother' do not include a step-father and a step-mother.

The Natural Guardian/Guardian has no power to mortgage or charge, or transfer by sale, gift, and exchange or otherwise any part of the immovable property of the minor whether it is for the benefit of the minor or otherwise both under the provisions of Guardianship and Wards Act. 1890 and Hindu Minority and Guardianship Act. 1956, except with the permission of the court.

If the Natural Guardian/ Guardian of a minor has transferred the property in contravention of Sec. 8 (1) and (2) of Hindu Minority and Guardianship Act, 1956 or in contravention of  Sec.29 of  Guardianship and Wards Act. 1890, the same is voidable at the option of a minor under Sed. 8(3) of Hindu Minority and Guardianship Act. 1956 and Sec. 30 of Guardianship and Wards Act. 1890 as the case may be.

It is relevant to discuss about the  voidable contract?

The essence of a voidable contract has been authoritatively enunciated in Anson's celebrated work on the law of Contract as under :--

01. 'A voidable contract, however, is a contract which one of the parties may rescind or affirm at his option. If he chooses to affirm the contract, or if he fails to exercise his right to rescind within a reasonable time so that the position of the parties has in the meantime, become altered, he may find himself bound by it; otherwise he is entitled to repudiate his liability. Nevertheless the contract is not a nullity from the beginning. Until it is rescinded, it is valid and binding.' Again in this particular context a contract voidable at the instance of the minor the rule is enunciated in the following terms:--

02. 'Where an infant acquires an interest in a permanent property to which obligations attach, or enters into a contract involving continuous rights and duties, benefits and liabilities, and takes some benefit under the contract, he will be bound, unless he expressly disclaims the contract during infancy or within a reasonable time of attaining his majority.'

It is, therefore, well-settled that a transfer of immovable property by the natural guardian of a Hindu minor far from being void or being a nullity is in fact one which fully binds the other party. The minor can always avail the benefit thereof and after ratifying or accepting the same enforce the contract. Such a transaction is perfectly valid until duly avoided by the minor. Not only that precedent is unanimous that he can avoid the same only by restoration of any benefits received under such a transfer and if he does not choose to do so, the Court would refuse to avoid such a transfer.

01.  Distinguishion  between A. Sale of minor’s share  in the  Joint Hindu Family property by Kartha and B.  Sale of property stands in the name of Minor by the Guardian.

1. Under Hindu Minority and Guardianship Act. 1956:

A.   For the purpose of sale of share of minor in the Joint Hindu Family by the Kartha the previous permission of the Court for the sale of property is not required as per the provisions of Sec.12 of Hindu Minority and Guardianship Act. 1956. ( This is applicable to Hindus Only)

--- Reiterated by the Hon’ble Supreme Court in the case of Sri Narayana Bal Vs Sridhar Suthar – AIR 1996 SC 2371

B.   But for sale of property of minor which stands in his name shall not be sold by the guardian for whatever purpose without the previous sanction of the Court.

2.  Under Guardianship and Wards Act. 1890:

There is no such distinguishion in the Guardianship and Wards Act. 1890 as the concept of Joint Hindu Family is not applicable religions other than Hindus.

02.  Distinquishion between A. Sale of minors property by De Jure Guardians and   B.  De facto Guardians:

Section 11 of Hindu Minority and Guardianship Act. 1956  specifically prohibits the transactions by the Defacto Guardians on behalf of minors which states that “De facto guardian not to deal with the minor's property.--After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor”

But there is no similar provision in Guardianship and Wards Act. 1890

A. Dejure guardian means  legal guardian and the person who is empowered to deal with the property of the minor under the Law. Dejure Guardian includes the Natural Guardian, Testamentary Guardian and Guardian appointed by court.

B. When a minor has no legal guardian, usually a close relative takes care of him and his property. Such a person is known as de facto guardian, who is not a lawful guardian. However, a de facto guardian shall be also the de facto manager of the minor’s property. He may apply for legal guardianship, in a court under the Guardian and Wards Act.

C. If the Dejure Guardians entered into a contract on behalf of minors property without court permission it is voidable at the option of the minors Sec. 8 of the Hindu Minority and Guardianship Act. 1956 and Sec. 29 and 30 of Guardianship and Wards Act. 1890.

D.  Whereas Defacto Guardians entered into a contract on minors property without court permission and they are totally void.

E. When under a voidable contract, the minor after attaining majority can file a suit for repudiation of contract entered by a dejure guardian(without permission of the court) claiming that the said transaction is not entered for the benefit of the minor

F. When under the void contract, the minor need not file suit for repudiation of contract and straight away he can claim back the property by filing the suit against the transferee.

G. When the contract on behalf of minor is effected by dejure Guardian(without permission of the court), Sec. 60 of the Limitation act is applicable and he can repudiate the contract by filing a suit against the transferee, claiming that the said transaction is not entered for the benefit of  minor

H. When the contract on behalf of minor is effected by defacto Guardian,  Section 65 of the Limitation act is applicable and he need not file a suit for repudiation of contract, he can claim back the property by filing the suit against the transferee.

I.  When the contract on behalf of minor is effected by dejure Guardian(without permission of the court) the limitation for filing the suit is 3 years from the date of attaining majority under Sec. 60 of Limitation Act.

J.  When the contract on behalf of minor is effected by defacto  Guardian the limitation for filing the suit is not 3 years after attaining majority but 3 years after attaining majority or  12 years from date of prescriptive possession whichever occurs later under Art. 65 of Limitation Act.

K.  Legal position  on Point J

If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed there under. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.

Decision of Supreme Court in Prem Singh & Ors vs Birbal & Ors  (Appeal (civil) 2412 of 2006)

L.  When a person enter in to possession of a land under void or voidable transaction, his possession becomes adverse from the date he comes in possession- SC-CLJ-2008-205   

The above views expressed above are personal and I invite the fellow members for advise and comments on the above article.

Sri T. Arjuna Rao

Senior Manager(Law)

Legal Department, Head Office

Andhra Pradesh State Financial Corporation

Hyderabad

arjunarao.talasila@gmail.com