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 intoa 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 theperson 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. Theexpression 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 careof minor's property except minor's share injoint family property.
The Kartha isentitled 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 evenwithout 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 requirecourt's permission.
Testamentary Guardians mean the persons appointed throughWill 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 forthe 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 haddock 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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