A minor or child of less than 18 years of age can own any property but cannot sell it or sign a document relating to its sale under Section 11 of the Indian Contract Act, 1872. The property can only be sold by his/her natural guardian or a court-appointed guardian, with the prior permission of the District Court.
The legal concept of guardianship of property stems from the principle that minors are incapable of managing their own property-related matters. The two laws governing guardianship in India are the Guardians and Wards Act, 1890 (GAWA) and the Hindu Minority and Guardianship Act, 1956 (HMGA).
District Court’s Permission Required to Dispose of Minor’s Property
The natural guardian of the minor will have to file a petition under the Guardians and Wards Act before the District Court, seeking permission to sell the property of the minor. The court shall grant such permission only when the sale is necessary or is for the evident advantage of the minor, as held in Hanmant Laxman Salunke v. Keshav Trimbak Kulkarni AIR 1986 Bom 172 and affirmed in several Kerala High Court decisions.
The disposal of a minor’s immovable property, or creating any charge on it by the natural guardian under Hindu law, is governed by Section 8 of the HMGA read with Section 29 of the GAWA.
Section 8(2)(a) of the HMGA expressly restricts the natural guardian from mortgaging, charging, selling, exchanging, leasing, or gifting any part of the immovable property of the minor without the prior permission of the District Court. Section 8(2)(b) further prohibits the natural guardian from closing or relinquishing any right or interest of the minor without such permission.
A sale of a minor’s immovable property in violation of Section 8(2) of the HMGA is voidable at the instance of the minor or any person claiming under him, as provided under Section 8(3) of the HMGA. The Supreme Court in Murugan & Others v. Kesava Gounder (Dead) through LRs & Others (2020) 17 SCC 231 affirmed that such a transaction remains legally valid until it is set aside by a competent court. Since the document is voidable and not void ab initio, it must be specifically challenged and set aside by the court to render it ineffective.
The Kerala High Court, in Ayyappan v. Vijayalakshmi 2003 (1) KLT 193, similarly held that a sale by the natural guardian without court permission is voidable, not void, and the minor must approach the court within the prescribed period of limitation to have it set aside.
The Form and Procedure for Applying for Guardianship
The form and procedure for filing an Original Petition (O.P.) for guardianship of a minor is governed by Sections 10 and 11 of the GAWA. In Kerala, the procedural requirements are further regulated by the Civil Rules of Practice, Kerala, 1971 and the Rules framed by the Kerala High Court under the GAWA.
The HMGA, being a later and special enactment, codifies in detail certain aspects relating to minority and guardianship among Hindus. It operates as a supplementary law to the GAWA and applies to Hindus alone.
What Details an Application for Guardianship Should Include
An application for guardianship to be filed before the District Court, as per Section 10 of the GAWA and in Form No. 1 prescribed under the Rules framed thereunder, should include the following details:
a) the name, sex, religion, date of birth, and ordinary residence of the minor;
b) where the minor is a female, whether she is married and if so, the name and age of her husband;
c) the nature, situation, and approximate value of the property, if any, of the minor;
d) the name and residence of the person having the custody or possession of the person or property of the minor;
e) what near relations the minor has and where they reside;
f) whether a guardian of the person or property or both of the minor has been appointed by any person entitled, or claiming to be entitled, by the law to which the minor is subject, to make such an appointment;
g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property or both of the minor, and if so, when, to what Court, and with what result;
h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;
i) where the application is to appoint a guardian, the qualifications of the proposed guardian;
j) where the application is to declare a person to be a guardian, the grounds on which that person claims;
k) the causes which have led to the making of the application; and
l) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.
Application Must Include a Declaration and Affidavits
Every petition for guardianship filed before the District Court in Kerala, as per the Civil Rules of Practice, Kerala and the Rules framed by the Kerala High Court under the GAWA, must be accompanied by:
- a Supporting Affidavit sworn by the petitioner, filed along with the Original Petition;
- a Declaration of willingness by the proposed guardian, signed by the proposed guardian and attested by at least two witnesses, as required under Section 10 of the GAWA;
- an Affidavit by a disinterested and independent person, stating that the proposed guardian has no interest in the matter adverse to that of the minor; and
- an Affidavit by another person acquainted with the circumstances of the minor, setting out the necessity for, or the evident advantage of, the proposed disposal of the minor’s property.
Petition Should Include Draft Newspaper Notification
The petition must also include two copies of a draft newspaper notification, filed as part of an Interlocutory Application, for the purpose of inviting objections from interested parties up to a specified date and time, so as to notify the public at large of the pendency of the proceedings before the District Court.
Eight Copies of Form No. 4 to be Included in the Petition
In addition, the petition must be accompanied by eight copies of the Public Notice in Form No. 4, prescribed under the Rules framed by the Kerala High Court under the GAWA. One copy of the notice, together with a copy of the petition, shall be published on the notice boards of the Principal District Court, the Grama Panchayat Office, and the Village Office having jurisdiction. A fourth copy shall be affixed at the site of the property proposed to be sold. The court is also required to intimate the details of the pending guardianship proceedings to the nearest relation of the minor.
Parents Can Buy Property in a Minor’s Name
There is no legal impediment to registering immovable property in the name of a minor. The natural or legal guardian of the minor can purchase property in the name of the minor by executing the necessary documents on his or her behalf. The purchase deed can be executed and signed by the natural or legal guardian and thereafter registered under the Registration Act, 1908.
Anyone Can Bequeath Property to a Minor
Any person can bequeath immovable or movable property to a minor by way of a Will. The law governing testamentary succession is the Indian Succession Act, 1925, which is applicable to all communities except Muslims, who are governed by Muslim Personal Law in matters of succession.
When a person dies intestate, i.e., without executing a Will, his legal heirs, including minors, become entitled to a share in the estate as per the law of succession applicable to the religion of the deceased. A Hindu would be governed by the Hindu Succession Act, 1956, a Muslim by the applicable Muslim Personal Law, and a Christian by the Indian Succession Act, 1925.
Minor on Attaining Majority Can Repudiate a Sale Deed
On attaining the age of 18 years, a person who was a minor at the time of a sale of his property may either repudiate or ratify such sale, if the transfer was effected without the prior permission of the District Court. The right to repudiate must be exercised within the limitation period of three years from the date on which the person attains majority, as provided under Article 60 of the Limitation Act, 1963.
A Minor Cannot Accept a Gift Carrying Onerous Conditions
A minor cannot accept an immovable property by way of an onerous gift, i.e., a gift that carries a liability or obligation attached to it, as such acceptance would amount to contracting a liability, which a minor is incompetent to do under law.
However, if, after attaining majority, the erstwhile minor acquiesces to the onerous gift, either expressly or by conduct, he cannot subsequently repudiate the gift, as held under Section 35 of the Transfer of Property Act, 1882.
Minor Can Purchase Immovable Property
A minor can acquire immovable property out of his own funds. However, since a minor is not competent to contract under Section 11 of the Indian Contract Act, 1872, any agreement for the purchase of immovable property must be executed by his natural or legal guardian on his behalf. While so acting, the guardian is bound to act with utmost good faith and solely in the interest and welfare of the minor, as mandated under Section 20 of the GAWA.
References
- The Hindu Minority and Guardianship Act, 1956
- The Guardians and Wards Act, 1890
- The Indian Contract Act, 1872
- The Transfer of Property Act, 1882
- The Registration Act, 1908
- The Indian Succession Act, 1925
- The Hindu Succession Act, 1956
- The Limitation Act, 1963
- Civil Rules of Practice, Kerala, 1971
- Rules framed by the Kerala High Court under the Guardians and Wards Act, 1890
- Murugan & Others v. Kesava Gounder (Dead) through LRs & Others (2020) 17 SCC 231
- Ayyappan v. Vijayalakshmi 2003 (1) KLT 193 (Kerala High Court)
- Hanmant Laxman Salunke v. Keshav Trimbak Kulkarni AIR 1986 Bom 172
