An Article About "HINDU MINOR AND GUARDIAN"

HINDU MINOR AND GUARDIAN

A minor is legally is not eligible to enter into any contract, nor can he sell or purchase immovable property. Minors are mentally and physically unable to manage their properties, which they may acquire by way of inheritance, gift or settlement. He has to be represented by another person who is a major. So, many people use power of Attorney to deal with the property of minor, which is not correct. In infancy they require care, thereafter proper education. There are laws that govern the rights of the minors, and also duties, responsibilities and rights of the person who looks after them.

Hindu Minority and Guardianship Act 1956 (Act 32 of 1956) is one such legislation which is applicable to all Hindus. It is worthwhile to deliberate who is a Hindu as per the provisions of the Act. It may be generally said all persons other than Mohammedans, Christians and Jews are Hindus. According to the definition a person is considered as Hindu by religion in any of its forms or developments including Veerashiva, Lingayat, followers of Brahmo, Prarthana or Arya Samaj, Buddhists, Jain and Sikh.

Minor

Minor is a person who has not completed eighteen years of age. It should be carefully read and understood, that a person will be minor until he completes eighteen years of age. A person who completes seventeen years and enters eighteenth year is a minor. Even a person who has completed 17 years and 364 days is a minor. Aperson attains majority on completion of eighteen years of age and entersnineteenth year, that after eighteenth birthday as per English calendar.

GUARDIAN

Guardian is a person who is a major and having the care of the minor, or minor’s property or both. There are four types of guardians; (1) Natural Guardian (2) Guardian appointed by a will of natural Guardian (3) A Guardian appointed or declared by Court (4) A person empowered to act as guardian by or under any enactment relating to any court of wards.

1.  Natural guardians – Parents are the natural guardians who take care of the minor children. Father is the natural guardian of a boy or unmarried girl and in the absence of father; the mother is the natural guardian. But in case of a child who has not completed five years of age mother is the natural guardian. In case of an illegitimate boy or illegitimate unmarried minor girl, the mother would be the natural guardian and thereafter the father. In case of married minor girl, husband would be the natural guardian. It may be generally questioned as to the provision for minor unmarried girl, as the marriage of a minor is an offense. Though the law prohibits child marriage, still it is practiced as a custom. Further any offense invites penalty/punishment only, but a minor married girl cannot be left to fend for herself. The guardian of Hindu minor is entitled to take care of minor’s property except minor’s share in joint family property. Kartha is entitled to the care of a minor’s share in joint family property. The natural guardian ceases to be the guardian if he converts from Hindu religion or becomes ascetic (Hermit Sanyasi, Vanaprastha.

The expressions father and mother does not include step-father or step-mother. In case of adopted son, the natural guardian is the adoptive father and there after the adoptive mother.

POWERS OF NATURAL GUARDIAN

Section 8 of the Hindu Minority and Guardianship Act defines the powers of a natural guardian. The natural guardian of a Hindu minor has powers to do all acts, which are necessary and reasonable for the benefit of minor and realization or protection of minor’s estate/property. However, there are restrictions on his powers, which are imposed by the Act. The natural guardian requires priorpermission of the court in case of mortgage, charging, transferring theproperty by sale, gift and exchange or by any other mode.

In case of leasing also, he cannot lease the property beyond five years or a term extending more than one year beyond the date on which minor attains majority without prior permission of the court. Thus the natural guardian can lease the property of minor for a maximum period of five years provided the minor do not attain majority during the lease period. In case of a minor who has completed 13 years of age, the property may be leased for five years. In case of minor who has completed 17 years of age, the property may be leased for 2 years only so that lease would expire within one year after the minor attains majority. Any transfer of property without the prior permission of court can be set aside at the instance of minor or any person claiming under him. Such transactions are voidable. It is left to the option of the minor to agree or not to agree for such transfers without the prior permission of the court. He may, exercise his option on attaining majority and within three years of coming to know of such transfer.

The courts will grant the permission for any disposal of immovable property or leasing beyond the period mentioned above by natural guardian only in case of necessity or for an evident advantage of minor. The application for such permission has to be made as per the provisions of the Guardians and Wards Act 1980, (sections 29 and 31). The competent court is City Civil Court, District court or a court empowered under section 4A of Guardians and Ward Act 1980, which is within the jurisdiction of where the immovable property is situated. There is a provision for appeal.

TESTAMENTARY GUARDIAN

Testamentary Guardians mean the persons appointed through Will as guardians of minor and his property. They function when both the natural guardians have expired.

The father may appoint any other person as guardian by a Will, if the mother has expired earlier. In case the father appoints a guardian by Will even if the mother is alive it is not operative as the mother succeeds as natural guardian. Mother may also appoint a guardian by Will, who succeeds her. In case if she does not appoint any guardian by Will, the guardian appointed by the father through Will succeeds as guardian after the death of the mother.

A Hindu mother may appoint any other person as guardian. The guardian so appointed shall act as natural guardian of the minor subject to the restrictions imposed in the Act and the Will. In case of minor being a girl, the powers of the appointed guardian will end on the marriage of minor girl and her husband will be the natural guardian thereafter. Only person who has attained majority is competent to become a guardian and not another minor.

As stated earlier, no guardian should be appointed for the undivided interest in the joint family property of the minor. However, in the jurisdictional High court may appoint a guardian for undivided interest in joint family property.The court is the final authority to decide whether any guardianship will benefit the welfare of the minor or not.

The sale of any property in which minor as interest requires prior permission of the court. If not, such transactions are voidable at the instance of minor. Minor may enforce his right to such properties after he attains majority. As such while purchasing the property of a minor it is very important to insist on the permission of the court for such transfer.