Rectification

Any transaction relating to minor's property without court's permission as required by S.8 - is VOIDABLE. That means it stands valid and perfectly legal as long as it is not avoided by the minor, the minor can complaint within 3 years of attaining majority. If a sale is done without the due permission of the court, in my view it can be ratified by taking the permission of the court subsequently if the court feels that the transaction is for the benefit or evident advantage of minor it can allow - in which case it is completely valid - otherwise it falls down

Dear Shayonee,

The Guardians and Wards Act, 1890 was a law to supersede all other laws regarding the same. It became the only non-religious universal law regarding the guardianship of a child, applicable to all of India except the state of Jammu and Kashmir. This law is particularly outlined for Muslims, Christians, Parsis and Jews as their personal laws don't allow for full adoption only guardianship. It applies to all children regardless of race or creed. Following is an overview of the act.

According to this act a minor/child is any person who has not completed 18 years of age. The court or appointed authority has the ability to decide the guardian of a child by appointing one a guardian or removing another as a guardian. No order will be passed without an application. Applications should contain all possible information about the child and guardian and reasons for guardianship. Once the court admits the application into court, then the court will set a date for the hearing. The court will hear evidence before making a decision. A minor and his property may have more than one guardian. The court must work in the interest of the minor, taking into consideration the age, s*x, religion, character of the guardian, the death of the parent(s), relation of the child to the guardian, etc. The minor's preference may be taken into consideration.

The collector of the district where the minor lives can be appointed the guardian of the child. A minor will not a appointed if the child or her/his property is under a court of wards, if the minor is married and her husband is fit to take care of her, or whose father is alive and is deemed fit to take care of her. Guardians are not meant to make a profit out of their office, but can receive remuneration as the court sees fit. A minor can not be deemed a guardian of another minor. A guardian is responsible for the health, education and support of the ward. Guardians who wish to move the child out of the courts jurisdiction may only do so with the permission of the court. Failure to get permission is a punishable offence. A guardian of property may not mortgage or sale the property of a ward without the permission of a will or the court who must act in the interest of the ward.

A list of the wards property, immovable and movable, must be submitted by the guardian to the court. The court can allow the guardian to take funds from the property, or use part of whole of the property of the child for maintenance of the minor. A court may remove a guardian for abusing the trust of the court and not fulfilling his role as a guardian. A person who no longer wishes to be a guardian can apply to the court for a discharge. Other punishable offences are: failure of the guard to produce the property of the ward, failure to produce the ward in court when requested, and failure to produce accounts. Reports produced by subordinates of the court or collector can be considered evidence by the court. Certain orders can be appealed in a High Court.

in a major order concerning hindu guardianship act, the supreme court has held that no person acting as defacto guardian can sell the property of a hindu minor and on attaining majority if he sells to another person the earlier sale by de facto guardian would be null and void. "there is little scope for doubt that the transfer of the minor's interest by a de facto guardian/manager having been made in violation of the express bar provided under section 11 of the hindu minority and guardianship act is per se invalid," a bench comprising justice d p mohapatra and justice doraiswamy raju said in a 21-page judgement. one ninje gowda's property went to his two daughters, sakamma and madamma, after his death. when sakamma was a minor, her sister sold her share of property to one madhegowda but after attaining majority sakamma sold the same property to ankegowda. the trial court and the first appellate court held that sakamma had no valid title of the property on the date she executed the sale deed since her interest in the property had already been sold. however, the high court reversed the decision and the appeal against the high court order came before the apex court. justice mohapatra, writing the judgement for the bench, said madamma could only be taken to be a 'de facto guardian' or more appropriately 'de facto manager' of the property of her younger minor sister. rejecting the elder sister's plea that the interest of her minor sister was sold to raise the money for her marriage, the bench said "the existence or otherwise of legal necessity is not relevant in the case of such invalid transfer." terming the sale of the sakamma's share of property by madamma as illegal, justice mohapatra said "such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. "the minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. after attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by 'defacto guadian/manager'," he said. in the case in hand, the apex court said that there was no finding by the trial or the appellate court that sakamma, the minor, after attaining majority, had ratified the invalid transfer, even assuming that the flaw in the transfer could be cured by ratification. "on the facts of the case, the high court was justified in setting aside the judgement of the trial court which was confirmed by the first appellate court and was right in decreeing the suit for partition and separate possession," the bench said.

Dear Bharat,

Theres a latest judgment on this issue where Apex court has specifically held the transaction to be void and not voidable.

In a major order concerning hindu guardianship act, the supreme court has held that no person acting as defacto guardian can sell the property of a hindu minor and on attaining majority if he sells to another person the earlier sale by de facto guardian would be null and void. "there is little scope for doubt that the transfer of the minor's interest by a de facto guardian/manager having been made in violation of the express bar provided under section 11 of the hindu minority and guardianship act is per se invalid," a bench comprising justice d p mohapatra and justice doraiswamy raju said in a 21-page judgement.

Is this judgment apply for sale which has been done by  natural guardian? If a hindu minor having a plot and his natural guardian i.e. his father sales this plot without obtaining court permission then after attening age of 18 can a minor rectify this sale deed.