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

The permission must be "previous". Permission obtained after the transfer is not what the sub-section requires.

Section 8(3): the consequence of acting without permission

Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

Voidable, not void, and the distinction is the answer to the standard problem.

The transaction is good until avoided. The purchaser gets a title that stands unless and until it is set aside, so the property does not simply revert.

Only the minor, or a person claiming under him, may avoid it. Not the guardian, who made it; not the purchaser, who may regret it; and not a stranger.

Contravention of sub-section (1) is enough. Notice that sub-section (3) refers to sub-section (1) as well as (2). So a sale that had the court's permission may still be avoided if it was not for the minor's benefit at all, and a sale without permission may be avoided on that ground alone.

The minor must sue. He does it on attaining majority, within the period the law of limitation allows, and that is why the question is usually set as one about a suit filed years later.

Section 8(4) to (6): the court, and how permission is obtained

Sub-section (4): the test on which permission is given. No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

Necessity, or evident advantage. The two limbs should be quoted, because they are the statutory form of the old rule about legal necessity and benefit of the estate, and because "evident" sets the standard: a speculative or arguable advantage will not do.

Sub-section (5): the procedure is that of the Guardians and Wards Act. An application for permission under sub-section (2) is dealt with as if it were an application for the permission of the court under section 29 of the Guardians and Wards Act 1890, and in particular:

(a) proceedings on the application are deemed to be proceedings under that Act within the meaning of section 4A of it;

(b) the court observes the procedure and has the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and

(c) an appeal lies from an order refusing permission to the court to which appeals ordinarily lie from the decisions of that court.

Read clause (c) carefully. The appeal is given against a refusal, and the sub-section provides no appeal against a grant.

Sub-section (6): which court. "Court" means the city civil court or a district court, or a court empowered under section 4A of the Guardians and Wards Act 1890, within the local limits of whose jurisdiction the immovable property is situate; and where the property lies in more than one such jurisdiction, the court within whose limits any portion of it is situate.

So jurisdiction follows the property, not the residence of the minor. That is a different rule from the Guardians and Wards Act itself, where by section 9 an application about the person of the minor goes to the district court of the place where he ordinarily resides, as [The Guardians and Wards Act: Appointment of a Guardian] sets out.

Section 10: a minor cannot be a guardian of property

A minor shall be incompetent to act as guardian of the property of any minor.

Short, and worth two observations. It bars a minor from being guardian of property only, so the section leaves the classical position about the person untouched. And it applies to any minor's property, so a minor widow cannot manage her minor child's estate.

Section 11: the de facto guardian

After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.

What a de facto guardian is

A de facto guardian is a person who has taken upon himself the care and management of a minor's person or property without any legal authority to do so. The commonest instances are an uncle, an elder brother, a grandmother or a step-parent who steps in when the parents are dead, absent or incapable. He is contrasted with the de jure guardian, who holds the office by law: the natural guardian under section 6, the testamentary guardian under section 9, or a guardian appointed or declared by a court.

What section 11 does to him

Under the classical law the de facto guardian's dealings with the minor's property were not a nullity. Because he stood in the position of a manager, an alienation he made for legal necessity or the benefit of the estate could bind the minor, on the same principle as a manager dealing with an infant heir's property.

Section 11 ends that. After the commencement of the Act, no person is entitled to dispose of or deal with the property of a Hindu minor merely on the ground of being his de facto guardian. Necessity does not help him, and benefit does not help him, because the section attacks his authority rather than the merits of the transaction.

Three points of precision

The section is about property, not the person. It says nothing about who may look after the child, feed him or send him to school. A relative who takes an orphan in is not doing anything the section forbids.

The word "merely" is doing work. The section takes away authority that rests only on the de facto position. It does not disable a person who has some other title to act, such as an appointment by a court under the Guardians and Wards Act 1890.

The route left open is the court. A relative who has in fact been looking after the minor and needs to deal with his property applies under the Guardians and Wards Act to be appointed or declared guardian, and then deals with it as a certificated guardian under sections 27 to 29 of that Act. Section 11 does not shut him out; it makes him go to court first.

Section 12: the undivided interest in joint family property

Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest.

The proviso: nothing in the section affects the jurisdiction of a High Court to appoint a guardian in respect of such interest.

Why the section exists

Because the karta is already there. A Mitakshara joint family is managed by its karta, whose powers over the joint property, including a minor coparcener's undivided interest, are described in [The Karta: Position, Powers, Privileges and Obligations] and [Alienation of Property: Separate and Coparcenary]. Appointing a guardian for the minor's undivided share would put two managers over one undivided estate, which is why the parenthesis in section 6 excludes that interest from natural guardianship in the first place.

The two provisions are a pair. Section 6 excludes the undivided interest from the natural guardian's authority, and section 12 forbids the appointment of a guardian over it. The interest is looked after by the family's own manager.

The condition matters. The bar applies where the property is under the management of an adult member of the family. If there is no adult member managing it, the section does not bite.

And the High Court is saved. The proviso preserves the High Court's own jurisdiction, which descends from its powers over minors and their estates.

Section 13: welfare is paramount

Sub-section (1). In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

Sub-section (2). No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

How the two sub-sections differ

They are not a repetition, and an answer that treats them as one loses half the section.

Sub-section (1) governs what a court does. When it appoints or declares a guardian, welfare is the paramount consideration, which is stronger than "a relevant consideration" and stronger than "the first among several". It is the same standard as section 17 of the Guardians and Wards Act 1890.

Sub-section (2) governs what a person may claim. It is a disqualification, and it operates on a person who would otherwise be entitled by virtue of this Act, which includes the natural guardian under section 6 and the testamentary guardian under section 9. So welfare does not merely guide a discretion; it can displace an entitlement the statute itself confers.

Sub-section (2) is the provision that reconciles the whole Act with the modern law of custody. A father is the natural guardian under section 6, but he is not entitled to the office if a court is of opinion that his guardianship will not be for the child's welfare. Read with the reading of "after" in [The Hindu Minority and Guardianship Act: Natural and Testamentary Guardians], it means that the order of preference in section 6 is a starting point and never a conclusion.

Note the odd phrase in sub-section (2), "any law relating to guardianship in marriage among Hindus". It reaches the guardianship for marriage, which the Hindu Marriage Act 1955 dispensed with when it dropped the requirement of a guardian's consent from section 5.

The five kinds of guardian, and what each may do

A worked example

Rahul is fifteen. His father, as natural guardian, sells a shop belonging to Rahul to a buyer for a fair price, without applying to any court, and uses the money to pay for Rahul's schooling. Two years earlier Rahul's uncle, who had been looking after him after his mother's death, had mortgaged another plot of Rahul's to pay for Rahul's medical treatment. Rahul turns eighteen and wants both undone.

Was the sale by the father lawful? It needed the previous permission of the court. Section 8(2)(a) forbids a natural guardian to transfer by sale any part of the minor's immovable property without it, and the shop is immovable.

Is the sale void? No. Section 8(3): a disposal of immovable property in contravention of sub-section (1) or (2) is voidable at the instance of the minor or any person claiming under him. It is good until Rahul avoids it, and only he, or somebody claiming under him, may do so.

Does it help the father that the money went on schooling? It goes to sub-section (1), whether the act was necessary or reasonable and proper for Rahul's benefit, and to what the court would have found under sub-section (4), which allows permission only on necessity or evident advantage. It does not cure the absence of previous permission, which is what sub-section (2) requires.

Which court could have given permission? By section 8(6), the city civil court or district court, or a court empowered under section 4A of the Guardians and Wards Act, within whose jurisdiction the property is situate.

What about the uncle's mortgage? Section 11: after the commencement of the Act no person is entitled to dispose of or deal with the property of a Hindu minor merely on the ground of being his de facto guardian. Necessity does not help him and benefit does not help him, because the section attacks his authority and not the merits.

What should the uncle have done? Applied under the Guardians and Wards Act 1890 to be appointed or declared guardian of Rahul's property, and then dealt with it under sections 27 to 29 of that Act.

Suppose the plot had been Rahul's undivided interest in a joint family that his adult uncle manages. Then section 12 forbids the appointment of any guardian over that interest, and the karta's powers govern it.

What it does NOT mean

Section 8(1) does not let a guardian bind the minor personally. "The guardian can in no case bind the minor by a personal covenant", and no permission cures that.

Section 8(2) does not cover movable property. Movables are governed by sub-section (1) alone and need no permission.

The lease limit is not a single rule. More than five years, or more than one year beyond majority; either arm triggers it.

A disposal in breach is not void. It is voidable, and only at the instance of the minor or a person claiming under him.

Permission does not save a transaction that was not for the minor's benefit. Section 8(3) refers to sub-section (1) as well as (2).

Section 8(5)(c) does not give an appeal against a grant. The appeal is against a refusal of permission.

Section 11 does not stop a relative from caring for a child. It is about property, and the word "merely" leaves untouched a person with some other title to act, such as a court appointment.

Section 12 is not absolute. It bites where an adult member of the family is managing the property, and the proviso saves the High Court's jurisdiction.

Section 13(1) and (2) are not the same rule. Sub-section (1) guides a court appointing or declaring; sub-section (2) is a disqualification that can defeat an entitlement the Act itself confers.

Quick revision

• s.8(1): the natural guardian may do all acts necessary, or reasonable and proper, for the minor's benefit or for the realization, protection or benefit of his estate, but can in no case bind the minor by a personal covenant.
• s.8(2): previous permission of the court is needed to mortgage, charge, or transfer by sale, gift, exchange or otherwise any immovable property, or to lease it for more than five years or more than one year beyond majority.
• s.8(3): a disposal in breach of (1) or (2) is voidable at the instance of the minor or any person claiming under him.
• s.8(4): permission only on necessity or evident advantage. s.8(5): the procedure is that of section 29 of the Guardians and Wards Act, with an appeal against refusal. s.8(6): the court is that where the property is situate.
• s.10: a minor cannot be guardian of the property of any minor.
• s.11: a de facto guardian may not dispose of or deal with a Hindu minor's property merely as such. The route left open is a court appointment under the Act of 1890.
• s.12: no guardian may be appointed over a minor's undivided interest in joint family property under the management of an adult member; the High Court's jurisdiction is saved.
• s.13: the welfare of the minor is paramount in any appointment or declaration by a court, and no person is entitled to guardianship whose guardianship the court thinks would not serve it.

Test yourself

1. What are the powers of a natural guardian over a minor's property? He may do all acts necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate, but he can in no case bind the minor by a personal covenant. He needs the previous permission of the court to mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the minor's immovable property, or to lease it for more than five years or more than one year beyond the date the minor attains majority.

2. What happens to a sale of the minor's land made without that permission? It is voidable at the instance of the minor or any person claiming under him, under section 8(3). It is not void, and no one else may avoid it.

3. What are the powers of a de facto guardian? Over property, none. Section 11 provides that after the commencement of the Act no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.

4. Can a guardian be appointed for a minor's undivided interest in joint family property? No, where the property is under the management of an adult member of the family: section 12 forbids it. The proviso preserves the jurisdiction of a High Court to appoint a guardian in respect of such an interest.