Different lawyers different opinion...what to do
Ranveer
(Querist) 10 February 2010
This query is : Resolved
Different advocates gave different Opinion on the below mentioned subject …. I want to have a clear view before buying the property …. if advocates & experts in here can just give me a right opinion……??
SHRI A died without will …he is survived by his wife SMT X and his son Master Y…. they applied to court to recognize as legal heir….
HEIRSHIP CERTIFICATE MENTIONS THIS :-
To,
1) Smt. X ( age : ____ )
2) Master Y ( age : _____ )
through his natural guardian Smt X
residing at _________________________
WHEREAS , Shri A , died on _______ at ____and application was made by the above named applicants to the court ( civil )of ________ to be formally recognized as Heir of the said deceased Shri A ..
AND WHEREAS, usual proclamation having been issued, no sufficient objection was offered to the right of the said applicants and whereas the said applicants thereupon gave proof to the satisfaction of the court of their right to be recognized as heir of the said deceased Shri A..
This is to cetify that the above named applicants SMT X on her behalf and on behalf of her minor son Master Y are recognized as heir of the deceased SHRI A in respect of the following Properties : -
SCHEDULE OF PROPERTIES Follows ……
……………………………..
………………………………
Given under my hand and seal of this court on this ____ day of _______
On going through this Heirship Certificate can we conclude that …..
SMT X and Master Y are both legal heir of the deceased SHRI A and that both have equal rights ( ie 50 % - 50 % share ) in the properties mentioned in the Heirship Certificate ??
If master Y is having 50 % share then mother(X) has to obtain Courts permission ( order ) to sell minors share …. as per my view and also of two advocates which were consulted….
SMT X ‘s advocate says that as per heirship certificate only SMT X is the owner of properties and that minor has no rights ... she being the guardian ……. She can sell the properties without obtaining courts order…..
Does minor have any right in the properties(as per heirship certificate ) or not ??
Can these properties be bought without obtaining court order for minor ??
A V Vishal
(Expert) 10 February 2010
Under THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956, a guardian is defined u/s.4(b) as "guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes-
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor's father or mother,
(iii) a guardian appointed or declared by court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
(c) "natural guardian" means any of the guardians mentioned in Section 6.
Further, S.8. Powers of natural guardian states as follows:
(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,-
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evidence advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of that Act, and in particular
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof;
(b) the court shall observe the procedure and have the power specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
A combined perusal of the abovementioned sections clearly shows that the court orders have to be obtained in order to sell the minor's share.
Parveen Kr. Aggarwal
(Expert) 10 February 2010
The Heirship Certificate clearly mentions that both X and Y have 50% share each in the property. As Y is minor the only option for selling his property is to obtain permission of the Court under section 8(2) of teh Hindu Minority and Guardianship Act, 1956 as rightly suggested by Mr. Vishal. Both X and Y are separate legal entities and merely being natural guardian of Y, X cannot become owner of the share of Y in her own right.
Guest
(Expert) 10 February 2010
agred with mr Vishal
Raj Kumar Makkad
(Expert) 10 February 2010
Both are owners to the extent of 50% share each and opinion of the counsel for the mother is against law. Obtain prior permission to sale the share of minor.
Ranveer
(Querist) 11 February 2010
thank u very much all of you..
S.8. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
Lady's COUNSEL quotes this and says that the sell of minor share by mother is voidable ( at the instance of minor ) not void .... and mother could sell share of minor ( without court permission ) by giving a declaration cum indemnity.... indemnifying us against any loss if his son on turning major claims his share in property.
They dont want to obtain court permission and sell total property on basis of indemnity bond..
Isn't this wrong on the part of lady and her counsel.
I just want to know if they sell total property to some other person without court permission ( for minor ) just giving indemnity..
Is such sale valid as per law ?????
Would the buyer be at risk even if the lady gives them idemnity bond.. as if son on becoming major claims his right & money will buyer be made to pay money or mother has to bear it bcos she had given indemnity .... will property be drawn into litigation ??
Parveen Kr. Aggarwal
(Expert) 11 February 2010
Yes. The property may be drawn into litigation in case the minor opts to challenge the sale. Keep it in mind that it will remain the sweet will of the minor to challenge the sale and he may pressurise (or blackmail) you at any point of time. In view of the trend of rising prices of the properties, you will remain under threat.
In case the mother dies against whom will you enforce the indemnity bond?
