Guardianship act
AKILA SAINATHAN
(Querist) 15 June 2012
This query is : Resolved
how to get permission from court for guardian if she is the mother of the minor to dispose the minor property.and the jurisdiction thereon, whether we have to see the resident of the parents or else where the property yet to be disposed off is situate.
Adv.R.P.Chugh
(Expert) 15 June 2012
1. File an application u/s 8 of the HMGA.
2. Jurisdiction lies with court of place where minor ordinarily resides.
Nadeem Qureshi
(Expert) 15 June 2012
Dear Akila
If the person is hindu then:
8. Powers of natural guardian.-
(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,—
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor
will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular—
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof.
(b) the court shall observe the procedure and have the powers specified in
sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, "Court" means the city civil court or a district court or a
court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.
State Amendments
Assam:For modified application of section 8 of the Hindu Minority and Guardianship Act, 1956, see Assam Act 7 of 1977, sec. 8 (w.e.f. 15-6-1978).
Punjab:For modified application of section 8 of the Hindu Minority and Guardianship Act, 1956, see Punjab Act 5 of 1979, sec. 22 (w.e.f. 18-6-1979).
West Bengal:For the purposes of West Bengal Agricultural Credit Operations Act, 1973 (34 of 1973) any reference to court in section 8 of the Hindu Minority and Guardianship Act, 1956, shall be construed as reference to the collector and the appeal against the order of the collector shall lie to the Commissioner.
[Vide West Bengal Act 34 of 1973, sec. 8 (w.e.f. 15-11-1973).]
COMMENTS
Alienation of minor’s property
Alienation of minor’s property by natural guardian (Mother) of the minor, without obtaining permission of court for such alienation, is void ab initio; Subhashappa P. Meti v. Maroti L. Sawarkar, AIR 2006 (NOC) 608 (Bom).
Consideration for guardianship: Welfare of the child
(i) It is well settled principle that in matter relating to the custody of the minor child the interest and welfare of the child is the paramount consideration and not the convenience or pleasure of the parents; Kumar v. Jahgirdar v. Chetana K. Ramatheertha, AIR 2001 SC 2179.
(ii) Immovable property contemplated in section 8 means a minor’s definite property and not his fluctuating indefinite interest in the joint family property. Interest is ever fluctuating depending upon exit and entry in the family by natural process or otherwise. It is only upon a partition that a definite share can be culled out. Undivided interest of a minor is left untouched. Section 8 is in pari materia with section 29 of Guardians and Wards Act; Naryan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.
(iii) A contract for the purchase of immovable property which is likely to increase in price is for the benefit of the minor; Manik Chand v. Ramchandra, AIR 1981 SC 519: (1980) 4 SCC 22.
(iv) Where the guardian acquires property for the benefit of the minor no permission of court is necessary; Than Singh v. Barelal, AIR 1974 MP 24.
(v) An alienation of property without the permission of the court is voidable at the option of the minor; Iruppakutty v. Cherukutty, AIR 1972 Ker 71.
Limitation on power of natural guardian
(i) Alienation made by the mother of the minor in contravention of section 8(2) are voidable at the option of minor and such alienation were required to set aside if minor wanted to avoid the transfers and regain the properties from the purchasers. If in plaint the prayer for setting aside the sale deeds was not there and such a prayer has been introduced after period of limitation which is three years from the date when minor attains majority, has elapsed, the claim for recovery of possession of property is not maintainable; Vishwambhar v. Laxminarayana, AIR 2001 SC 2607.
(ii) Sale transaction by a natural guardian even if beneficial for the minor is voidable and not void ab initio, if it is done without the previous permission of the court. Held that the minor can challenge only after attaining majority and not during his minority; Naryan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.
(iii) When the natural guardian i.e. the father dies leaving behind mother as the natural guardian and minor sons and daughters, section 8, would not apply as the interest of the minor daughter would be fluctuating undivided interest in the joint family property. But where the father dies leaving behind only his minor daughter and mother as natural guardian, the shares of the daughters become definite and the question of family property retaining the character of Joint Hindu Family property does not exist and section 8(3) is attracted and sale transactions done by mother without the previous permission of court becomes voidable at the option of minor. Held that the mother had no authority to alienate the shares of minor daughters; Mangala v. Jayabai, AIR 1994 Kant 276.
(iv) The notional partition between the plaintiff during his minority and his father before his death left him 3/4 share in the property and rest of the property to his mother. Held that as the minor had definite share in the property, the mother had no authority without the previous permision of the court to sell the separate property of minor; Dhansekaran v. Manoranjthammal, AIR 1992 Mad 214.
If the person is Muslim
Muslim Law may be classified as follows:
1. Legal (dejure) or natural Gaurdian
2. Guardian appointed by Court
3. De Facto guardian
Under Mohhamadan Law the power of the all types of the Guardian are same.
feel free to call
