Sale of property of minor muslim girl
Legal_Query
(Querist) 03 September 2011
This query is : Resolved
Dear All,
my previous query was
my client company is purchasing an agricultural land from muslim minor girl (10-11 yrs) through her gaurdian (father). the said land had been purchased by her father in her name. he has left the village (MP) in which the land is situated and has settled in other state.
should there be any specific ingredients to be satisfied for sale deed under these situation.
now the problem is when the father went for the registry of the land in favour of my client company, registrar had asked them to bring permission/declaration of the court. can the registrar deny.
kindly advice on future course.
thnks
prabhakar singh
(Expert) 03 September 2011
Mr. Shah is right .Moreover it is repeated one.earlier detail answer was provided.In fact you are looking for an opinion on your suitability, which even if it comes shall not be able to keep you safe from future dangers involved if you are buyer.
prabhakar singh
(Expert) 03 September 2011
Permission must be taken from the District judge of the District in whose jurisdiction the land situate.
Every authority should be watch full over minors right and registrar has not committed any punishable crime and a contest to his denial even if won will prove a peril for the buyer in future,should minor opts to through away the sale entered without permission.
Devajyoti Barman
(Expert) 03 September 2011
The Registrar has authority to ask for the permission of the court when the minor is duly represented by the legal guardian.
Whether the permission of court is at all necessary or not is to be decided by the competent court of law and not the Registrar.
As already advised unlike in Hindu Law the legal guardian can very much transfer the share of the minor provided certain conditions as described n my earlier reply is complied with.
Dr Anil Kumar Singh
(Expert) 03 September 2011
It seems you are looking for a favourable reply . But as experts have opined the permission from district judge in obligatory in case of minor property. Comply with the legal procedures and compulsions failing which the future course can be problematic and painful
prabhakar singh
(Expert) 03 September 2011
Unnecessary controversies some time we create on our own.A guardian may be either NATURAL or DEFACTO or DEJURE.
IN INDIA THE PROSPECTS ARE GOVERNED BY Personal laws,WHICH ARE AGAIN FOUND DIFFERENT.
BARRING MUSLIMS AS ON DATE ALL OTHERS ARE GOVERNED BY CODIFIED LAW.
ANY GUARDIAN APPOINTED BY COURT OF LAW WOULD BE CALLED DEJURE WHO MAY BE EITHER A NATURAL OR DEFACTO,OF COURSE 'NATURAL' HAS A PREFERRED RIGHT AGAINST 'DEFACTO' UNLESS 'DEFACTO 'IS ABLE TO ESTABLISH THAT ACTS OF'NATURAL'ARE DETRIMENTAL TO THE INTEREST OF THE MINOR OR HE HAS AN INTEREST CONFLICTING WITH THAT OF MINOR.
THE NEXT DOOR FOR A'DEFACTO'OPENS WHEN A NATURAL IS DEAD.
COURTS WHILE PASSING ORDERS TO RECOGNIZE
A GUARDIAN AS DEJURE,HAVE DEVELOPED ONE RULE THAT IS TO SAY'THE INTEREST AND WELFARE OF MINOR IS SUPREME'
NATURAL GUARDIAN IN HINDU LAW(Hindu Minor & Guardianship Act, 1956)
AS PER ITS S.6(a)The natural guardian 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 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;
THUS EVEN IN HINDU LAW A 'NATURAL' GUARDIAN HAS RIGHT TO SALE THE INTEREST OF MINOR EXCEPT ONE IN COPARCENARY JHF INTEREST AS IS THERE HIS OWN INTEREST TOO.
NATURAL GUARDIAN IN MUSLIM PERSONAL LAW:(OF PERSON AND PROPERTY)in reply to previous post Expert : Devajyoti Barman has referred
to text of Mulla ()i also refer the same text.17th edition ,page 338,comment Ss358,359,360,361 and on wards.
AFTER STUDY IT WOULD BE ANY BODY CONCLUSION THAT THERE IS NO DIFFERENCE ON THE TOPIC BETWEEN TWO PERSONAL LAWS ,BE IT HINDU OR A MUSLIM, INDISPUTABLY FATHER HAS RIGHT TO LOOK AFTER THE MINORS PROPERTY AS A NATURAL GUARDIAN WITH ONE EXCEPTION THAT A HINDU NATURAL CAN NOT DEAL MINORS JHF /COPARCENARY INTEREST,A CASE THAT CAN NEVER ARISE BEFORE A MUSLIM FOR ABSENCE OF SUCH TYPE OF PROPRIETARY CONCEPT IN MUSLIM SOCIETY.
CUTTING NOW SHORT BOTH A HINDU OR MUSLIM FATHER HAS RIGHT TO DEAL WITH PROPERTY OWNED BY MINOR EVEN WITHOUT PERMISSION OF A LAW COURT. THE MATTER OF PERMISSION TO DEAL
AS DEJURE GUARDIAN UNDER BOTH PERSONAL LAW IS OPTIONAL.
PERMISSION(being optional),IF OPTED TO BE SOUGHT,WOULD BE SOUGHT ONLY UNDER GUARDIANS AND WARDS ACT,1890(even Mulla comments on page330,s349.............But there is nothing to prevent him from applyong to the court under...the Act)
So no natural guardian can be checked by any authority in both cases of hindu/or muslim from their right to deal with property of their minor son or daughters,so also not a sub/registrar.
Then why my advise is for permission may be questionable facts???????????
BUT I HAVE THE ANSWER.
The MINOR HAS A OPTION of election either to agree with the sale or to ask it judged
void on his majority in all cases of sale made with or without permission.
But when it was a sale with permission ,the risk of buyer reduces to show that a judicial mind was applied in the case.
A natural guardian may misappropriate sale consideration but courts often order its deposit and withdrawal from time to time showing need of the minor.
And this all is favorable for buyer.
More particularly here a company is buyer,whose directors would work on its behalf to put its share holder's equity on stake with whom there relation is fiduciary as well as that of a trustee(i do not practice co.law but who do can not differ that extent of liability directors is
still being evolved upon by courts on every land )
LABORED BY THESE ASPECTS I OPINED IN MY EARLIER POST, WHICH I REITERATE,THAT PERMISSION IN THIS CASE IS DESIRABLE BEFORE SALE. MY OPINION IS PRO BUYER.
BUT IF EVERY ONE SEEK SO MUCH REASONS FROM ME THEN IT IS HARD TO OPINE,
Raj Kumar Makkad
(Expert) 03 September 2011
This is a repeated query which has already been replied in detail.
M/s. Y-not legal services
(Expert) 04 September 2011
Its repeated query mean just we may avoid sir.. Knowingly why you are wasting your precious time here prabhakar sir. Just come on..
