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 minor.
Hindu Minority and Guardianship Act 1956 (Act 32 of 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 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:
a) Natural Guardians
b) Testamentary Guardians
c) Guardians appointed by the Court and
d) 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 take care of minor's property except minor's share in joint family property. The Kartha is entitled
to take care of a minor's share in joint 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 if he
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. Section 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.
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.
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 Defector 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 ab initio 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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