Stake of minor in a aproperty
Meghal
(Querist) 18 October 2011
This query is : Resolved
Father and son are the 2 property owners and son is a minor(16 years)and father is running a loan on that property.Can we moortgage such proeprty by taking a deed of guarantee
Devajyoti Barman
(Expert) 18 October 2011
If father is the first name holder then he can apply for loan but before that he would need the liberty of the court to mortgage the half share of his minor son in the said property.
Meghal
(Querist) 18 October 2011
the court order will take time,in that case can we take any kind of guarantee or declaration from his parents
Devajyoti Barman
(Expert) 18 October 2011
Yes you can but keep in mind that without the leave of the court agreement for such transfer is voidable at the option of the minor.
Shastri J.K.
(Expert) 18 October 2011
I also agreed mr barman's suggestion.
prabhakar singh
(Expert) 18 October 2011
BE GUIDED BY FOLLOWING THREE SECTIONS OF
THE GUARDIANS AND WARDS ACT,1890
GUARDIAN OF PROPERTY
27. Duties of guardian of property
A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.
28. Powers of testamentary guardian
Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift , exchange or otherwise , immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.
29. Limitation of powers of guardian of property appointed or declared by the court
Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the court to be guardian of the property of a ward, he 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 his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.
30. Voidability of transfers made in contravention of section 28 or section 29
A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby.
