Legal opinion on Minor property
Querist :
Anonymous
(Querist) 07 January 2010
This query is : Resolved
I want to buy a property(land) from a seller and this land has exchanged 5 hands before ithe seller has bought it. In the process one of the first owners of the land were minors and their guardian was their father. While selling the property the father has put the reason for selling that the property is that money will be used for their educational purposes in the sale deed. there is no court order when the sale was done. this was not verified by the previous 2 owners who had bought the property. I want to know if the minors when they become major will they have claim to the property. What are the options that i have in trying to dealing with this legaly. I dont know who the owners are and this sale from guardian was done 15 years back.
Can i get a court order now
I also heard that the minors can claim only till the point they are 21 years of age. Is this true?
Please advise
A V Vishal
(Expert) 07 January 2010
Sec. 8 statutorily recognises some of the powers which used to be enjoyed by the natural guardian under the old Hindu law and imposes two important restrictions on him in dealing with the property of the minor. The first restriction is that the guardian can in no case bind the minor by a personal covenant. The second restriction is that he shall not mortgage or create a charge or transfer by sale, gift, exchange or otherwise or even lease out the property for a term exceeding five years or for a term extending more than a year beyond the date on which the minor will attain majority, without the previous permission of the court. These restrictions on the natural guardian in relation to the property of the minor apply only to the separate or absolute property of the minor. Though the expression used is"minor estate" it cannot include the minor's undivided share in the joint family property as under s.6 there cannot be a natural guardian in respect of such property which is specifically excluded.- Miriyalu v. Bodireddi Subbayamma 1966 (1) An WR 368, Sri Narayan Bal v. Sri Sridhar Sutar 1996 (1) HLR 174 (SC)
Under s.12 in regard to the undivided interest of the minor in joint family property no guardian can be appointed. Courts have consistently held that under the Guardians and Wards Act, no legal guardian can be appointed for the undivided interest of the minor in joint family property governed by the Mitakshara law unless the minor is the sole surviving coparcener or unless all the coparceners are minors. Under the old Hindu Law, the manager or the karta of the family of the minor can alienate the minor's undivided interest in the joint family property without the permission of the court, where the alienation is for legal necessity or for the benefit of the minor and this right is left untouched by this Act.-Krishnakant, In re AIR 1961 Guj 68
On the other hand , this is recognised by the present Act by providing in section 12 that when the joint family property is under the management of an adult member of the family, no guardian shall be appointed for the undivided interest of the minor in the joint family property.
ambika.S
(Expert) 07 January 2010
Until there is a Court Order no property of the minor can be disposed. The right of the minor - claim not only when they become major but when they come to know [knowledge of the sale] if they are still minors they have a right to claim through next gaurdian.
niranjan
(Expert) 07 January 2010
I cannot resist my appreciation for Mr. Vishal.
Raj Kumar Makkad
(Expert) 07 January 2010
The transaction is ab-initio illegal as no part of the property of the monor can be sold by their father without obtaining prior permission from competent civil court and now time shall prove whether such children get the sale deed challenged till 3 years of attaining their majority means upto 21 years.
Querist :
Anonymous
(Querist) 07 January 2010
Thanks all for the response. Just a follow up queries on the same.
- Can i get a court order now if i can trace the people. Will it be legal?
- Mr. Raj Kumar has said that if the minors dont claim the property before they are 21 years of age then will the dealing be legal.
- What would the loss be if such dealing is done?
Y V Vishweshwar Rao
(Expert) 07 January 2010
I agree with the opinion of Mr Vishal on the points;-
1- Minors exclussive proerty /absolute & indipendent property ( other than Joint family Proerty ) !
2- Minors undivided interest in the Joint Family property !
There is deference between these properties - with referecne to the legal provisions!
aman kumar
(Expert) 13 January 2010
I agree with the opinion of Mr Vishal
