Who will be the minor guardian

shyam lal sharma (Querist) 14 September 2012 This query is : Resolved
Respected and Learned Advocates

My friend want to purchase a ancestral property from XXX, here the Seller is having 2 children aged about 5 years female and 11 years male child.

My query is who will be the natural guardian for these children mother or father and kindly brief me the law which governs these factors.

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Adv.R.P.Chugh (Expert) 14 September 2012
Dear Mr.Sharma,

1. If the property is ancestral the children would they have an independant equal share in the property.

2. Since the property is ancestral - who is natural/legal guardian of the minor is inconsequential as in coparcenory property Karta holds the authority to transfer the shares of other coparcenors including minors himself in case of legal necessity or benefit of estate. No prior permission from the court is required for this. However the children can challenge or seek setting aside of alienation within 3 years (at max) from their majority.

In this regard read S.12 Hindu Minority & Guardianship Act.

S12 reads : Guardian not to be appointed for minor's undivided interest in joint family property

Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:

PROVIDED that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.

COMMENTS

Where a Hindu father dies leaving behind his sons who are coparceners and also daughters and the widow, by applying the fiction of partition on the date of death of the father, the female heirs along with the sons have the right to an equal share in the father's share of the property. Having such an individual share in the joint family property there is a chance for an adult female member of the family to be in management of the joint family property. According to the present provision, it can be said in such cases also that no guardian can be appointed for the undivided interest of the minor in the joint family property as it applies to a case where the property is under the management of any adult member and not necessarily an adult male member. There may be a case where there is an adult member of the family but he or she may not be in management of the joint family property for some reason. In such a case, this provision is not applicable. This provision does not indicate that the adult member in management of the joint family property should be the senior adult member. According to the notions of Hindu Law, in the absence of the father, the eldest male member is to be the manager of the joint family property, though it is permissible for a junior member to become the manager with the consent of the other members of the family.-Ramakrishna v. Manikka 1937 (1) MLJ 587. But under s.12 of the Act, it is sufficient if any adult member is in management of the joint family property in order to attract the prohibition contained in this section.

3. Hence the alienee (person buying property in which minors have interest) should satisfy himself first with all due diligence that sale is for legal necessity or benefit of estate.

Hope this helps !

Bharat Chugh
*Advocate Supreme Court of India