SALE OF/ CHARGE UPON MINORS’ PROPERTY WITHOUT COURT PERMISSION BY GUARDIAN IS VOIDABLE

Existing Laws: As per the Indian Majority Act, 1875, the age of majority in India is specified as 18 years. Any individual, domiciled in India, who has not attained the age of 18 years, is referred to as a minor. The disposal of property of minor, by natural guardians under Hindu law is governed through Section 8 of Hindu Minority and Guardianship Act, 1956 read with provisions contained in the Guardians and Wards Act, 1890. The natural or legal guardian of minor will have to file a petition under Guardians and Wards Act in the court of Guardianship Judge to seek the permission of the court to sell the share of the minor. Also, the property belonging to a minor cannot be mortgaged or charged or transferred by sale, gift, and exchange or otherwise without obtaining court’s prior permission as per Section 8(2)(a) of Hindu Minority and Guardianship Act, 1956.

“Section 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 sub­section   (1)   or   sub­section   (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   sub­section   (2)   except   in case   of   necessity   or   for   an   evident advantage to the minor.

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Transfer Voidable: Disposal/ transfer/ creating any charge etc. of such an immovable property by parents is voidable at the instance of the minor or any person claiming under him.  When the minor attains the age of 18 years, the minor can exercise the option to repudiate or validate the sale deed if the same was made without the prior permission from the court of law, but he must exercise such option within the limitation period i.e. three years from the date on which he attains majority. The Supreme Court has held that a sale of minor’s property by guardian can be avoided only by filing a suit to set aside the deed within the period of limitation prescribed under Article 60 of the Limitation Act, which is three years from the date of attaining majority by the minor. In case the minor has died before attaining majority, as it happened in the case before the SC, the legal representatives of the minor should bring the suit within 3 years from the date on which the minor would have attained majority.

Case Laws:

Saroj Vs Sunder Singh & Ors. (Supreme Court of India) Appeal No. 10582 of 2013 Date of Judgement/Order : 25/11/2013: In the instant case the father died and the property was inherited by the mother and the three minor daughters. The mother sold out the property including minor’s share without the permission of the court. The Court did not found tenable the submission of the mother guardian that the land was sold for proper maintenance of the minor daughters and the consideration amount received out of the said sale was spent to fulfill   the   requirements   of   the   daughters­. 

The Court observed that in view of the sub-­section(2) of Section 8 of the   Hindu   Minority   and   Guardianship   Act,   1956 it was not open for the guardian to mortgage/ charge/ transfer by sale, gift of the minor’s property without previous permission of the court. In the light of the above, the SC held that the   sale   of   minors’   property   cannot   be   done without   obtaining   the   prior   permission   of   the Court.

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Prepared by Team LegalMines.