Ma­jor rules of a mi­nor’s prop­erty

Any trans­fer of prop­erty by guardians of young wards, with­out the permission of a court, can be chal­lenged by the mi­nor or his/her rep­re­sen­ta­tive

HT Estates - - HTESTATES - Su­nil Tyagi

Ami­nor (ie a child un­der the age of 18 years or 21 in case of ap­point­ment of guardian) may be the owner of im­mov­able prop­erty de­volved on him/ her through in­her­i­tance from a de­ceased per­son or through a gift or pur­chase in the name of a mi­nor by the guardian. Ow­ing to the le­gal in­com­pe­tence of a mi­nor, the man­age­ment of the prop­erty is the duty of the guardian, ie a per­son car­ing for the mi­nor and his or her prop­erty.

Though the mi­nor is the owner of the prop­erty and the guardian is legally com­pe­tent to man­age the prop­erty, mort­gage or cre­ate charge (have a right over the prop­erty to re­cover amounts to the ex­tent en­ti­tled) on the mi­nor’s prop­erty or trans­fer by way of sale, gift, ex­change it, there are cer­tain re­stric­tions. Of­ten sale and trans­fer of a prop­erty owned by a mi­nor is made by the guardian with­out real­is­ing that such sale or trans­fer is void­able at the in­stance of such a mi­nor. In case of a mi­nor who is Hindu as de­fined un­der the law, pro­vi­sions of the Hindu Mi­nor­ity and Guardian­ship Act, 1956, will gov­ern the trans­fer of the mi­nor’s prop­erty.

In 2013, in the case of Saroj v Sun­der Singh and oth­ers, the Supreme Court ob­served that to sell, gift, ex­change, mort­gage or cre­ate charge on the im­mov­able prop­erty the prior permission of the ap­pro­pri­ate court is es­sen­tial.

In this case, the ap­pel­lant and her two sis­ters were mi­nors when their fa­ther ex­pired and the land de­volved upon their mother and three of them, equally. There­after, while the daugh­ters were still mi­nors, the mother sold the en­tire prop­erty. One of the daugh­ters pre­ferred a suit seek­ing can­cel­la­tion of the sale deeds for the sale of the land.

In the trial court, the mother claimed that she sold the land to take care of and ful­fill the re­quire­ments of the mi­nor daugh­ters and for the proper maintenance of the daugh­ters. The trial court up­held the ar­gu­ment pre­ferred by the mother. There­after, in ap­peal, the High Court also, up­held the judg­ment of the trial court.

Ag­grieved by the judg­ments, the daugh­ter ap­pealed to the Supreme Court. Go­ing through the pro­vi­sions of the Hindu Mi­nor­ity and Guardian­ship Act, 1956, the apex court ob­served that the nat­u­ral guardian of the mi­nor has power to do all acts which are nec­es­sary or rea­son­able and proper for the ben­e­fit of the mi­nor or for the re­al­i­sa­tion, pro­tec­tion or ben­e­fit of the mi­nor’s es­tate, etc. How­ever, the Act clearly pro­vides that no im­mov­able prop­erty of the mi­nor or part thereof can be trans­ferred by way of sale, gift, ex­change or other­wise with­out ob­tain­ing prior writ­ten permission of the court.

The Supreme Court ob­served that though it was stated that the prop­erty had been sold for the proper ben­e­fit of the mi­nors, their pro­tec­tion, ed­u­ca­tion and mar­riage, there was noth­ing placed on record to sug­gest that pre­vi­ous permission of the court was ob­tained by the nat­u­ral guardian be­fore trans­fer by sale in ques­tion. Hence, the sale deeds ex­e­cut- ed by the mother shall be­come void­able at the in­stance of the daugh­ters.

Thus, the court of law, at its sole dis­cre­tion, may per­mit the trans­fer of the mi­nor’s prop­erty by his guardian to any third party sub­ject to ad­her­ence to and ob­ser­vance of cer­tain re­stric­tions and con­di­tions. Any trans­fer of prop­erty of a mi­nor with­out the prior permission of the court of law can be chal­lenged at the in­stance of the mi­nor or any per­son at his or her be­hest. Such trans­ac­tions are void­able. It is left to the mi­nor to agree or dis­agree to such trans­fers with­out the prior permission of the court of law. He may ex­er­cise his op­tion on at­tain­ing ma­jor­ity and within three years of com­ing to know of such a trans­fer.

Thus, it is im­per­a­tive for guardians of mi­nors to keep in mind th­ese re­stric­tions while man­ag­ing and deal­ing with the im­mov­able prop­erty of mi­nors.

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