Lease agreement
Tage Talin
(Querist) 14 November 2011
This query is : Resolved
If I am to sign in the lease agreement as a legal guardian of my minor son, what exactly will be the content of relevant portion of the agreement?
Devajyoti Barman
(Expert) 15 November 2011
Without getting the liberty of the court you can not sign any lease or other transfer deed with regard to the property or its share of the child as the same is a voidable document at the option of the minor.
To avoid any complications you better apply for the permission of the court.
Sailesh Kumar Shah
(Expert) 15 November 2011
yes, DJ's permission is required to sign lease agreement.
prabhakar singh
(Expert) 15 November 2011
It is not clear that the minor would be a lessor or a lessee of the lease agreement.
Which personal law is applicable is also not clear.
In a lease contract where minor is lessee through guardian is charging the minor with obligation to pay rent,and in case of his being a lessor he guardian is alienating his possessory interest in the property and minor,in either of these two cases, would be at option to repudiate the contract within 03 years from the date of attaining the majority.Subject to this risk if the other party is ready,the lease may be executed.
The better course is already advised by Mr. Barman.For that the guardian of minor is required to move an application under Guardians of Wards Act before the District Judge for permission to execute the lease on minors's behalf , as lessee or lessor,as the case may be,showing the court that the transaction is needful, beneficial,and in the interest of minor.
Rajeev Kumar
(Expert) 15 November 2011
I agree with Prabhakar sir
Tage Talin
(Querist) 15 November 2011
With reference to Expert Prabhakar Singh Sir's comment, it is clarified that the minor (my son) is a lessor. We are indigenous tribal and worshipers of Sun & Moon. we write our religion as 'Donyi-Pollo'. Here 'Donyi' means Sun and 'Pollo' means Moon. Therefore, I don't know what personal law is applicable in our case.
The fact of the case is - I own a commercial building in my minor son's name which I wish to lease out to interested lessor as I (myself), being a Government servant, can not carry/run a business in the premises.
With the above position, further advice/comment is solicited.
prabhakar singh
(Expert) 15 November 2011
Dear Mr. Tage Talin!
Now it is not too much material then which religion you profess.To me you are not a muslim.Not even a christian.Sikh , Jain,budha
or parsi you can not be.Then as duel worshiper you are none but a Hindu.
Anyway in any personal law father has generally been the accepted legal guardian of property of his minor son.
To a Hindu the law laid down in HINDU MINONORITY AND GUARDIANSHIP ACT, 1956 applies barring a Muslim, Christian , Parsi or Jew by religion and term Hindu here includes a)to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b)to any person who is a Buddhist, Jaina or Sikh by religion and.......
So you are a natural guardian of your minor son under section 6(a)of the said Act.
Your Powers as such are defined in section 8 of the Act reproduced below:
"8 Powers of natural guardian
(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 viodable 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 evident 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 4A
thereof;
(b) the court shall observe the procedure and have the powers 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.
(6) in this section, " court " means the City Civil Court or a District Court or a court empowered under section 4A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate."
In the above provision your attention is specially invited to s.8(2)(b)
"The natural guardian shall not, without the previous permission of the court-(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."
Further in lease cases it is Transfer of property Act that has to be taken care of to create a valid lease.Sections 105 to 117
are the provisions which deals leases.
Legally a lease is required to be executed by a registered deed if the same is made for a period more than a year.
So people in practice even in cases of a major lessor generally enter into leases for a period of 11 months.and after every eleven month they create a newer one.
As seen the maximum period for which a lease can be created by you is 05 years or up to the majority date of the minor , whichever less,if it has to be made without permission of the court.For any other condition you are required to take permission of the court which may take 03 to 06 months at least.
HENCE KEEPING ALL CIRCUMSTANCES IN MY DUE CONSIDERATION I ADVISE YOU TO ENTER INTO A LEASE FOR A PERIOD NOT MORE THAN 11 MONTHS AND RENEW THE SAME BY A FRESH DEED EVERY YEAR WHICH SHALL ALSO GIVE YOU AN OPPORTUNITY TO ENHANCE THE RENT FROM TIME TO TIME.KEEP A SECURITY AMOUNT OF 06 MONTHS IN ADVANCE REFUNDABLE ON EXPIRY OF LEASE AND RENT PAYABLE EACH MONTH BY 7th DAY.
Tage Talin
(Querist) 16 November 2011
My sincere thanks to Expert Prabhakar Singh Sir for his detailed clarification and advice. But my initial simple question was "If I am to sign in the lease agreement as a legal guardian of my minor son, what exactly will be the content of relevant portion of the agreement"? I mean, is it correct if I draft the lease deed starting as "THIS DEED OF LEASE AGREEMENT IS MADE ON THIS........BETWEEN SHRI XYZ (NAME OF LEGAL GUARDIAN) (ON BEHALF OF MINOR SON SHRI ABC), AGE ABOUT........(AGE OF LEGAL GUARDIAN), AND SO ON...
prabhakar singh
(Expert) 16 November 2011
"This lease is made on the...........day of .........between (guardian's name)acting as guardian of the property of his minor son(name of the son)a minor s/o.......r/o...........(who is hereinafter called "the lessor") of the one part
AND (
name of the lessee)s/o............r/o......
(hereinafter called "the lessee" of the other part."
WHEREAS.....
Tage Talin
(Querist) 16 November 2011
Thanks a lot, Sir.
prabhakar singh
(Expert) 16 November 2011
If the lessee is not a company but a business firm then name of proprietor or partners and not of firm alone should be used.
Guest
(Expert) 21 November 2011
To supplement the advice of the experts, you must not forget to make a mention that the lease would remain valid till the minor attains majority and would be required to be renewed under the personal signature of the real owner on his attaining of majority on ......... (date).
Tage Talin
(Querist) 21 November 2011
I don't find any merit in the advice supplemented by the expert P.S. Dhingra.
prabhakar singh
(Expert) 22 November 2011
I have very clearly advised you that as natural guardian under provisions laid down
in section 8(2)(b)Which reads as"(2) The natural guardian shall not, without the previous permission of the court(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."
This provision i am reproducing so that any man of ordinary prudence may get misguided by any of us.
The provision is self speaking.Unless permission by court is granted,the lease can NOT be for more than a period of 5 years or for a term extending more than 01 year beyond the date on which the minor will attain majority.
That is why a safest route of 11 month lease each year was advised because any other lease shall attract registration under Transfer of property Act,
and shall deprive the land lord of chances of enhancing the rent.I do not know what other expert has tried to convey you by supplementary advice.Any way cause is your's and choice is also your's.
prabhakar singh
(Expert) 22 November 2011
I fail to understand that if the minor has to attain majority in coming 16 years then term of lease can under provision stated above in any case be 17 years(01)year beyond his majority;to understand so means mention of 05 years is an useless exercise of legislature which we should not understand so.
Tage Talin
(Querist) 22 November 2011
My sincere thanks again goes to Expert Prabhakar Singh Sir.
prabhakar singh
(Expert) 22 November 2011
I am highly obliged to your this particular thank Mr.Tage Talin.
Wish you all the best.
