The Powers of a Natural Guardian, and the De Facto Guardian

In one line

A natural guardian may do what is necessary and reasonable for the minor's benefit but may never bind him personally, may not deal with his immovable property without the court's previous permission, and a de facto guardian may not deal with it at all.

Section 8(1): the general power, and the one absolute limit

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.

Two halves, and both are examinable.

The power is wide but purposive. Every act must be necessary, or reasonable and proper, and it must be for the benefit of the minor or for the realization, protection or benefit of his estate. There is no general power of management for its own sake: the test is benefit, and it is the same test the classical law applied to a manager dealing with an infant heir's property, the rule in Hunoomanpersaud, which is in [Alienation of Property: Separate and Coparcenary].

The guardian can in no case bind the minor by a personal covenant. The words "in no case" make this absolute, and it is not subject to the court's permission or to anything else in the section. He may bind the estate, within the limits of the section; he may never bind the person of the minor to a promise. So a guardian who borrows on a promissory note in the minor's name creates no personal liability in the minor, whatever the necessity.

Section 8(2): what needs the court's permission

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.

Four things follow, and they are the four a problem question tests.

Only immovable property is caught. Movable property is governed by sub-section (1) alone, so the guardian may sell the minor's movables if the sale is necessary or reasonable and proper for his benefit, and needs no permission.

Clause (a) is exhaustive of dealings. Mortgage, charge, sale, gift, exchange, "or otherwise". A gift is inside it, and a gift of a minor's property could hardly be for his benefit in any case.

The lease limit has two arms and either one triggers it. More than five years, or extending more than one year beyond majority. A three-year lease granted to a minor of seventeen fails the second arm even though it passes the first, and that is the trap.