Minor can own the property but cannot sell
Selling of minor’s property is a tricky issue. The reason is that a minor person of less than 18 years of age can own any property but cannot take a decision on selling of it or sign a document relating to sale as per the Contract Act, despite the urgency for selling it for his or her welfare needs.
The concept of guardianship
A guardian is a person who has powers and the concomitant responsibility to act for the welfare of the minor and his property.
The legal concept of guardianship of property stems from the idea that minors or infants are incapable of managing their own property-related matters.
The two laws governing it are the Guardians and Wards Act, 1890 (GAWA) and The Hindu Minority and Guardianship Act 1956 (HMGA).
The form and procedure for applying for guardianship
The form and procedure for applying for guardianship of a minor is described in GAWA, particularly in its section 10 and 11.
The HMGA is a later law that codifies in detail certain aspects relating to minority and guardianship among Hindus. It is a supplementary law of the GAWA pertaining to Hindus alone.
Selling of Hindu minor’s property needs court permission
Permission of the court is necessary for the guardian to sell minor’s property as per Section 8 (2) of the HMGA.
The sale of minor’s property done in violation of Section 8(2) of the HMGA is voidable by the minor or any other person claiming under him, as per Section 8(3) HMGA.
Therefore, the sale remains valid until it is set aside by the court. A document which is voidable need to be set aside, so as to avoid it remains as a legally valid document.
In case of a Hindu, the above law says specifically that to sell the property of a minor in a legally valid manner, the permission of the District Court is essential.
No permission needed in selling a Hindu minor’s undivided interest
In case of the undivided property of a Hindu minor, the Allahabad High Court in Smt Preeti Arora v Subhash Chandra Arora & Another says, no permission of the Court is needed by the adult head of Hindu family for disposing of the undivided interest of the minor in joint family property, on a combined reading of Sections 6, 8 and 12 of the HMGA.
The Section 6 of the act provides that for a Hindu minor and the minor’s property (excluding their undivided interest in joint family property), the father shall be the natural guardian and after him the mother is the natural guardian.
The Section 8(1) of the Act provides that though the natural guardian of a minor may do all acts necessary, proper, and reasonable for benefit of the minor or for the realization, protection, or benefit of the minor’s estate.
However, Section 8(2) of the act places an embargo on mortgage or charge, or transfer by sale, gift, exchange or otherwise, of any part of the immovable property without prior permission of the court.
The Section 12 of the act provides that where the minor has undivided interest in joint family property which is managed by an adult member of the family, no guardian may be appointed in respect of such undivided interest.
Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court.
But since there need be no natural guardian for the minor’s undivided interest in the joint family property, as provided under sections 6 and 12 of the HMGA, the previous permission of the District Court under its Section 8 is not required for disposing of the undivided interest of the minor in the joint family property.
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