Transfer of immovable
property by persons domiciled in India is governed by the provisions of
Transfer of Property Act,1882."Transfer of Property",as envisaged
under section5 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 super intendenceby 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.
CLASSES OF
GUARDIANS
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
1. NATURAL GUARDIAN
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 take care 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.
2.
TESTAMENTARY GUARDIANS
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 Guardianship Act, 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.
3. GUARDIANS APPOINTED
BY THE COURT
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.
4. DEFACTO GUARDIANS
A person who is not the
ad hoc 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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