Mionr interest
saroja
(Querist) 20 September 2012
This query is : Resolved
"A" expired leaving behind his wife and minor son. Wife sold A's self acquired property on her own and also on behalf of minor son.
In this case court permission not taken to sell minor's share
In my opinion,restriction (getting prior permission of the court for disposing any immoveable property of a minor) on the natural guardian in respect of property of a minor applies only to the separate or absolute property of the minor and does not include the minor’s undivided share in the joint family property.
Pls advice whether court permission required or not ?
Regards,
Saroja
Devajyoti Barman
(Expert) 20 September 2012
Yes any sale of minor's property without the permission of court even by his/her legal/natural guardian even for legal necessity is voidable if not void at the option of minor within 3 years from the date of his/her attaining majority.
saroja
(Querist) 20 September 2012
Please refer below mentioned madras high court judgement and as per said judgement court permission not required-
The Madras high court has held that the restriction (getting prior permission of the court for disposing any immoveable property of a minor) on the natural guardian in respect of property of a minor applies only to the separate or absolute property of the minor and does not include the minor’s undivided share in the joint family property.
Justice M. Venugopal said section 8 of the Hindu Minority and Guardianship Act, 1956, prevents a natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of the immoveable property of a minor without prior sanction of the court.
In view of section 6 and 12 of the Act, “this court comes to an irresistible conclusion that section 8 of the Hindu Minority and Guardianship Act is not applicable in respect of a joint Hindu family property, which is disposed of by the karta involving an undivided interest of the minor in the said joint family property”, the judge said.
Justice Venugopal allowed an appeal by Karuppana Gounder and set aside the order of the first appellate court in Gobichettipalayam, which reversed the order of the district munsif, Gobichettipalayam.
Originally, minor Moorthy filed a suit for a declaration that the sale deed executed by his father late Nagappan in favour of Karuppana Gounder was not binding on him and also sought division of the suit property into two shares, one such share for him for separate possession. The district munsif rejected his plea.
Against this he preferred an appeal and the first appellate court held that the suit property ancestrally belongs to Moorthy and his father Nagappan and, as such, it cannot be either encumbered or sold.
It concluded that the trial court was not correct in coming to the conclusion that Moorthy was not entitled to the claim of the relief of partition and separate possession and set aside its order. Against this, Karuppana Gounder made the present appeal.
Regards,
Saroja
