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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.
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. Section 5 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 Guardian
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. Guardian appointed
by 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 Guardian
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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