Transfer of immovable property by persons domiciled in
India is governed by the provisions of Transfer of Property Act, 1882. The term
"Transfer of Property", as envisaged under section 5 of the Act means
an act by which a living person conveys the property to one or more living
persons. Living person includes a company or association or body of
individuals, whether incorporated or not. However, not all living persons are
competent to transfer the immovable property. Certain pre-requisites are
envisaged under the statute which restricts alienation of property by a person
who is not competent to enter into a contract. One such restriction is transfer
of immovable property by a minor.
Hindu Minority and Guardianship Act 1956 is one such
legislation which is applicable to all Hindus. It is worthwhile to deliberate
who is a Hindu as per the provisions of the Act. It may be generally said that
all persons other than Mohammedans, Christians and Jews are Hindus. According
to the definition a person is considered as Hindu by religion in any of its
forms or developments including Veerashaiva, Lingayat, followers of Brahrno
Prarthana or Arya Samaj, Buddhists, Jain and Sikh.
According to Indian Majority Act, 1875, which applies to
all persons domiciled in India and to all matters except marriage, divorce and
adoption, every person whose property has assumed superintendence by a Court of
Wards is deemed to have attained majority at the completion of 21 years and in
all other cases at the completion of 18 years. Guardian means a person having
care of the person of a minor or his property or both person and property.
Guardians for a minor may be classified as under:
1.
Natural Guardians
2.
Testamentary Guardians
3.
Guardians appointed by the Court
4.
De facto Guardians
Under Section 6 of the Hindu Minority and Guardianship
Act, 1956, the father is the natural guardian of the person and of the separate
property of his minor son or a minor unmarried daughter and after him, the mother.The
expression father and mother does not include step-father or step-mother.In
case of adopted son, the guardian is the adoptive father and thereafter the
adoptive mother. But in case of a child who has not completed five years of age
mother is the natural guardian. The guardian of Hindu minor is entitled to takecare of minor's property except minor's share injoint family property.
The Kartha is entitled to take care of a minor's share injoint family property.
In case of an illegitimate boy or an illegitimate unmarried girl, the mother is
the natural guardian and after her, the father. In the case of a minor married
girl, the husband is the natural guardian. It may be generally questioned as to
the provision for minor unmarried girl,as the marriage of a minor is an offence. A person is disqualified from acting as a natural
guardian under this Act ifhe ceases to be a Hindu or has finally renounced the
world by converting himself to a hermit.
Prior to the enactment of the Hindu Minority and
Guardianship Act, 1956, the natural guardian had wide powers to deal with the
property of his minor son or daughter whereby he could mortgage, sell, create a
charge even without permission of the Court. However, this unfettered power of
the natural guardian to alienate the property of his minor children has been
regulated by the Hindu Minority and Guardianship Act,1956 which has been
enacted keeping in view the interest and welfare of the minor children. Section5 read with Section 8(2) of the Act envisages that a Guardian cannot, without
previous sanction of the court, alienate the minor's property in any manner,
subject to the exception of lease not exceeding five years or not exceeding one
year beyond the date when the minor attains majority. However, purchasing a
property on behalf of a minor does not require court's permission.
Testamentary Guardians mean the persons appointed through
Will as guardians of minor and his property. They deal with the property belonging
to the minor subject to such restrictions, as are imposed in the Will. The
father may appoint any other person as guardian by a Will if the mother has
expired earlier. In case the father appoints a guardian by Will even if the
mother is alive it is not operative as the mother succeeds him as natural
guardian. Mother may also appoint a guardian by Will, who succeeds her. In case
she does not appoint any guardian by Will, the guardian appointed by the father
through Will succeeds as guardian after the death of the mother. A Hindu mother
may appoint any other person as guardian. The guardian so appointed shall act
as natural guardian of the minor subject to the restrictions imposed in the Act
and the Will. In case of minor being a girl, the powers of the appointed
guardian will end on the marriage of minor girl and her husband will be the
guardian thereafter. Only a person who has attained majority is competent to
become a guardian. No guardian can be appointed for the undivided interest in
the joint family property of the minor. However, the jurisdictional High Court
may appoint a guardian for the undivided interest of the minor in joint family
property.
Prior to enactment of the Hindu Minority and GuardianshipAct, 1956, a testamentary guardian appointed under the Will used to enjoy wide
powers. After enactment of this Act certain sweeping changes have been
introduced. It recognizes the power of a Hindu father to appoint a guardian for
safeguarding the property of the minor through Will. However, no testamentary
guardian can be appointed by the father for any undivided interest of the minor
in a joint family property. This Act gives equal right to the mother to appoint
a testamentary guardian of a minor child after the death of the father and even
ifhe is alive when he has been declared as disentitled to act as the natural
guardian by an order of the court or has ceased to become a Hindu due to change
in religion or has renounced the world permanently.Further, the aforesaid Act
also empowers the widow to appoint a testamentary guardian in respect of the
person and property of her minor children.
Appointment of Guardian by the Court is governed by the
provisions of the Guardians and Wards Act, 1890. Section 7 of the Guardians and
Wards Act, 1890 provides that where the court is satisfied that the appointment
of a Guardian is necessary to safeguard the interest of the minor child, it can
make an order appointing and declaring a person as Guardian of a minor of his
person or property or both. No order appointing another person to be the
guardian can be made by the court until the powers of the guardian already
appointed or declared have ceased to be so under the provisions of this Act.
Section 17 of the Act provides that the court, at the
time of appointing or declaring the guardian of a minor, should take into
consideration the age, sex and religion of the minor apart from the character and capacity of
proposed guardian, wishes, if any, of a deceased parent and the existing or
previous relationship of the proposed guardian with the minor child or his
property. Further, court can appoint a Guardian only for the separate property
of the minor and not for the undivided interest in the joint family property.
A Guardian appointed by the court has no power to
alienate the minor's property without the permission of the court. Alienation
without such permission is voidable at the instance of the minor and the person
affected by such sale. However, if alienation has been made after obtaining
necessary sanction from the court, the same cannot be challenged by the minor
or any other person except in case of fraud.
A person who is not the adhoc guardian and does not act
for a specific purpose as a guardian, but manages the affairs of the minor in
the same manner as the natural guardian or guardian appointed by the court
could be referred to as Defacto Guardian although in strict sense of the term
there is nothing in the law to describe the de facto guardian. However, the
authority of any person to deal with or dispose of any property of a Hindu
minor on the ground of his being a de facto guardian of such a minor has been
totally abrogated and any alienation by such a guardian is void abilities and
the same cannot be ratified subsequently by the minor after attaining majority.
Thus, it is advisable to the intending buyers of immovable property with
minor's interest to take all the necessary precautions and due care before
proceeding to buy the property to avoid any future complications.
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