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HINDU MINORITY AND GUARDIANSHIP ACT

Hindu Minority and Guardianship Act, 1956.²-The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Act) does not codify the entire law of guardianship applicable to Hindus, but amends and supplements the provisions of the Guardians and Wards Act, 1890, in its application to Hindus only. Section 2 of the Act clearly provides that the provisions of the Act shall be in addition to the Guardians and Wards Act of 1890. For the purpose of the appointment of a guardian by the Court, one has to look into the provisions of the Guardians and Wards Act and the definition of a minor in the Indian Majority Act. In respect of matters expressly dealt with in the Hindu Minority and Guardianship Act, the provisions of the Act, abrogate all the rules of guardianship hitherto applicable to the Hindus by virtue of any text or rule of Hindu law or any custom or usage having the force of law, and have overriding effect. These provisions also supersede any other law, if inconsistent with them. Age of Majority.²Section 4 of the Act defines the word µminor¶ as a person who has not completed the age of eighteen years. The rules laid down by the Act or the rules applicable to Hindus in so far as the Minority and Guardianship is concerned is for purposes other than marriage. According to both the Acts (i.e. Indian Majority Act and Hindu Minority and Guardianship Act) the age of majority is 18 years. According to Section .4(a) of the Act completion of 18 years will apply in all cases. Act is not retrospective.²This Act is not retrospective. No Legislation should be construed to affect the vested rights retrospectively unless there is a clear provision for the same in the Act itself. In the Act we find no such provision for giving the Act a retrospective effect. So the Act is prospective and not retrospective. Guardian²Meaning of.²A guardian means a person having the care of the person of another or of his property, or of both. Section 4 of the Guardians and Wards Act also defines the word µguardian¶ to the same effect. Section 4 (b) of Hindu Minority and Guardianship Act defines the word µguardian¶ as follows: ³Guardian´ means a person having the care of the person of a minor, or of his property, or of both his person and property and includes² (i) a natural guardian; (ii) a guardian appointed by the will of the minor¶s father or mother; (iii) a guardian appointed or declared by a court; and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards. There are four categories of guardians specifically referred to in this section viz., the natural guardian, testamentary guardian, a guardian appointed or declared by a court, and a person empowered to act as guardian by or under any enactment relating to Court of Wards.

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GUARDIANSHIP OF THE PERSON :- Guardianship as conceived originally was, in most systems, an extension of paternal power. But in modern law, it essentially implies an idea of protection. Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone¶s protection. In the modern laws of most countries, the childhood is accorded protection in multifarious ways. Guardian is ³a person having the care of the person of the minor or of his property or of both person and property´.1 It may be emphasised that in the modern law, guardians exist essentially for the protection and care of the child and to look after its welfare. This is expressed by saying that welfare of the child is of paramount consideration. Welfare includes both physical and moral well-being. Guardians may be of the following kinds : 1. Natural guardians. 2. Testamentary guardians. 3. Guardian appointed or declared by the court. Under the lunacy law also, guardians can be appointed for lunatics or idiots even if they are majors. There are also guardians in litigation who are entrusted with the duty of protecting the interest of minor-plaintiff or minor-defendant. These guardians do not fall within the purview of this work. There are two other types of guardians, existing under Hindu law, de facto guardians, i.e., self-appointed guardians, and guardians by affinity, i.e., guardians of a minor widow. Natural Guardians :- In Hindu law, only three persons are recognized as natural guardians, father, mother and husband. S. 6, Hindu Minority and Guardianship Act.² Father.²´Father is the natural guardian of his minor legitimate children, sons and daughters.´ Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. The effect of this provision has now been considerably whittled down by judicial decisions and by S. 13 of the Hindu Minority and Guardianship Act which lays down that welfare of the minor is of paramount consideration and father¶s right of guardianship is subordinate to the welfare of the child. The Act lays down that if father appoints a testamentary guardian and the mother survives him, the appointment of testamentary guardian will be ineffective so long as the mother is alive. If the mother dies without appointing a testamentary guardian, the father¶s appointee will become the guardian. But, if the mother dies after appointing a testamentary guardian, the mother¶s appointee will take over the guardianship of the child and the father¶s appointment will be ineffective. The Act does not recognize the principle of joint guardians. The position of adopted children is at par with natural-born children. Where the father is alive but he is nonfunctioning natural guardian, the mother can act as the natural guardian.

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Jijabai versus Pathan AIR 1971 SC 315 Vaidyalingam, J. said that in the particular circumstances of this case, µthe mother could be considered as the natural guardian of her minor daughter. The particular circumstances of the case were the father and mother of a minor child had fallen out and the mother was living separately from the father for over twenty years. The mother had been looking after the affairs of her minor daughter and managing her properties. The child was all along under her protection and care. Thus, it seems that where the father fails to function or refuses to function or is incapable of functioning as guardian, the mother will be able to exercise all powers and functions of a natural guardian without being appointed guardian by the court. Githa Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya,AIR 1999 SC 1149 where under certain circumstances the mother has been held to be the natural guardian of the minor under certain circumstances and the word ³after´ has been interpreted to mean ³in the absence of¶ rather than ³after the life time´. It is further held that absence would mean absence of father from the care of minor¶s person or property for whatever reason. When a minor brings a suit against the father to set aside improper alienation, the mother can act as a guardian of minor even without seeking permission of court.

Mother:- The mother is the natural guardian of the minor illegitimate children even if the father is alive. However, she is the natural guardian of het minor legitimate children only if the father is dead or otherwise is incapable of acting as guardian. Remarriage of the mother with a person of different faith cannot disqualify her to be a guardian of her minor child, especially when the child was being looked after extremely well by the mother. Proviso to clause (a) of S. 6, Hindu Minority and Guardianship Act lays down that the µcustody of a minor who has not completed the age of five shall ordinarily be with the mother.¶ Thus, the mother is entitled to the custody of the child below five years, unless the welfare of the minor requires otherwise.¶ But this does not mean that she is not entitled to custody thereafter. Mother¶s right of guardianship is not lost on her conversion to another religion so long as she is able to provide a congenial, comfortable and happy home. The position of mother¶s guardianship of her adopted children is the same as that of her natural born children. It is submitted that it would be a better proposition of law if it is laid down that parents are equal and co-ordinate guardians of their minor children. Step-parents are not entitled to guardianship, unless they are specifically appointed by the court. Once a child goes in adoption, natural parents cease to be natural guardians of the child. Natural parents could be guardians of the child only if so appointed by the adoptive parents or by the court. Husband :- In some systems of law, it is a curious development that husband is considered to be the natural guardian of his minor wife. The Hindu Minority and Guardianship Act, 1956, also lays down that husband is the natural guardian of the person and property of the minor wife. It is submitted that it is open to the Courts not to give custody of a minor wife to a husband, if they are satisfied that it will not be for the welfare of the minor wife. This is the import of S. 13 of the Act which lays down that welfare of the minor is of paramount consideration. It is submitted that it would be in the interest of the minor wife if it .

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Rights of guardian of person: The natural guardian has the following rights in respect of minor children (a) Right to custody, (b) Right to determine the religion of children, (c) Right to control education, (d) Right to control movement, and (e) Right to reasonable chastisement. These rights are conferred on the guardians in the interest of the minor children and therefore exercise of each of these rights is subject to the welfare of the minor children. Custody and access : Welfare of children.²It is a well established proposition of law that in all matters relating to children, including access and custody, the paramount consideration is the welfare of children. Better economic conditions of the father as against the maternal grandfather are conducive to the welfare of the child. Better financial conditions, love for the child are relevant, but not the sole determining factors. The word ³ordinary´ does not mean ³necessarily´. So welfare of the child is the only deciding factor. Mother¶s remarriage is no disqualification to grant her custody. If the child is of the age of discretion, its wishes should also be consulted, though in the welfare of the child its wishes may be disregarded. Though the ordinary rule is that a child below the age of five should be committed to the custody of the mother, it does not mean that a child above that age would automatically be given over to I the custody of the father. Thus, in the welfare of the child above that age he/she may be committed to the custody of the mother. Ordinarily, children of tender years would not be given in the custody of the father. Natural mother is preferable over, the relations of the father. Where the girl child was a little more than 12 years old and intelligent enough to take her own decisions and wanted to live with the father the custody was granted to the father. Mother cannot be deprived of custody just because she has remarried. A mother who says that she has been living and will continue to live with her friends and would not mind begetting children from them, is not a fit person to have custody of the child of marriage. In the welfare of the child, custody may be given to a third person. In this case, Supreme Court granted custody to the mother and grand-father. On account of continuous disregard, father may be denied the custody of the child. But while awarding custody of child to anyone, the only touchstone is interest and welfare of the child and nothing else. Convenience and pleasure of parents is totally immaterial.

Powers of a natural guardian.²Section 8 of the Act deals with powers of a natural guardian with respect to minor¶s person or property. Section 8 runs as follows ³Section 8² (1) 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.

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(2) The natural guardian shall not, without the previous permission of the court² (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. (3) 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. (4) 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. (5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respect as if it were an application for obtaining the permission of the court under Section 29 of the Act, and in particular² (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof; (b) the court shall observe the procedure and have the powers specified in subsections (2), (3) and (4) of Section 31 of that Act ; and (c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (1) of this section to the court to which appeals ordinarily lie from the decision of that court. (6) In this section µcourt¶ means the City Civil Court or a District Court or a court empowered under Section 4-A of the Guardians and Wards Act, 1890, (8 of 1890) within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the local limits of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate ³. This section deals with all the powers which a natural guardian may exercise in respect of the person and property of his ward. It also enumerates the powers, which Necessary or reasonable and proper acts for the benefit of the minor.²This part of the section refers to the person of the minor. A natural guardian has the power to place such restraint on the minor in regard to his upbringing, education and health as may be necessary or reasonable, or proper for the benefit of the minor. The natural guardian has the power to delegate his authority for the upbringing and education of his minor child to a tutor or school-master or a friend with a power to revoke the said delegation. The guardian has the power to choose at his discretion the place of residence of minor to save the minor from bad society. This section does not apply to those alienations where the manager of the joint family property alienates the joint interest of a minor in the family property for the benefit of the minor or the family need. The natural guardian can look after the property and realise the income accruing from it. He can do any act towards the protection of the property of minor or the welfare of the minor himself.

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But he cannot enter into contract which may bind the minor personally. The contract entered into by the natural guardian for the interest of minor cannot be executed against him. In Manik Chand v. Rain Chand AIR 1981 SC 519 :- SC clearly laid down that after passing of the Act of 1956, the natural guardian has been empowered to do all such acts which are necessary for the welfare and benefit of the cuikl. Such acts may be necessary or reasonable for the interest of the minor. He can even bind the minor by a covenant if it is so necessary. If he purchases a property on behalf of the minor, the minor would be fully bound to pay the sale price. But the guardian cannot bind the minor by his personal covenant. The expression ³legal necessity´ may include payment of government revenue and debts on minor¶s estate, minor¶s, maintenance and marriage, cost of necessary litigation in recovering or preserving the estate of the minor etc. The common ³necessaries´ of the minor are those things without which an individual cannot reasonably exist. Food, raiment, lodging and the like ; moral and religious teaching and education may constitute necessaries. Payment of taxes, repairs of property and performance of obligatory ceremonies for the benefit of minor maintenance of dependant members of the household whom the minor is under legal duty¶ to support, can also be included within the expressions necessaries of life. Benefit of the estate.²A transaction to be binding on the family must be one which not only confers a benefit upon the estate but is necessary for its good management. Power to enter into contracts.²So far as the question of the power of natural guardian to enter into contract of loan on behalf of the minor so as to bind the minor¶s estate is concerned there was a conflict of judicial opinion under the pre-Act law on the point. The Privy Council held that the covenant of the mother of the minor while selling minor¶s property to indemnify the purchaser who sued the minor on attaining majority upon his personal undertaking against all future claims of Government revenue on the property was not binding on the minor. For example , A, as guardian of the estate of a minor, B, agrees to purchase immovable property from C, on behalf of B. B on attaining majority sues for specific performance. B is not entitled to specific performance nor is C, But when guardian of a Hindu minor entered into a contract for sale of the minors property for purposes considered under Hindu Law The Delhi High Court in Rumal v. Sriniwas, has held that any contract executed by the guardian of the minor can be specifically enforced by the minor or against the minor. Under the law the natural guardian has been empowered to enter into the contract. If the contract is in the welfare of the minor, it will be binding and will be enforceable. Compromise by natural guardian.²A guardian is competent to enter into a compromise on behalf of his ward.69 In Bishun Deo v. Seogeni Rai,AIR 1951 SC 285 the Supreme Court has held that it is not necessary for the next friend or guardian of a minor to obtain the sanction of the court under Order 32, Rule 7, C.P.C., to begin negotiations for a compromise or even to. conclude a provisional agreement with the opposite side with a view to compromise and that it is enough if

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the court sanctions the concluded compromise as beneficial to the minor. Even where the mandatory provision of Order 32, Rule 7 (i) is ignored, the resultant agreement or compromise is not a nullity but is good unless the minor chooses to avoid it. So the decree or order may be based thereon. Acknowledgment of debt by guardian.²A natural guardian of a minor as well as a guardian appointed by the court has power to acknowledge a debt or to pay interest on a debt so as to extend the period of limitation provided the act is for the protection or benefit of the minor¶s property. In Section 21(1) of the Indian Limitation Act, 1908, a lawful guardian is included in the expression ³agent duly authorised in this behalf¶ occurring in Sections 19 and 20 of the Indian Limitation Act, 1908. Guardian has no power to revive debt which has become barred by time. Family Arrangement.²The natural guardian has the power to enter into family settlement on behalf of the minor provided it is in the nature of a bona fide compromise of doubtful claims. Arbitration.²The natural guardian has power to refer to arbitration disputes provided such a course is for the benefit of the family. Power of alienation.²The natural guardian of a Hindu minor has power in the management of the estate to sell or mortgage any part of the estate in case of necessity or for benefit of the estate, provided the natural guardian has taken permission of the Court prior to such alienation as provided in Section 8(2) of the Act. The Bombay High Court has held that it is only the natural guardian who can move an application for the permission of the court for transfer of immovable property of minor. The intending purchaser is incompetent and an application for permission of Court by him is not maintainable. In Janardhan Pillai v/s B.A. Radha,nma, the court held that a sale of minor¶s property effected by his natural guardian without obtaining the specific sanctions of the court under Section 8(2) is an act which is prohibited by law and is, therefore invalid. However, in the suit filed by the minor on attaining majority the plaintiff is entitled to recover possession of the property. The invalidity of the sale does not mean that the plaintiff can keep the property and the consideration money. In Periyanayagam v. Rajendran & others, the Court held that Section 8(3) of the Act declares the effect of contravention of sub-section (2) of Section 8 of the Act and states that any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2) of Section 8 of the Act, is voidable at the instance of the minor or any person claiming under him. The avoidance or repudiation need not necessarily be only by way of specifically praying for the relief with regard to setting aside a transaction repudiated, but it can take diverse forms as well. Act must be done as guardian.²No act done by a person who is the guardian of a minor binds the minor, unless the act was done by him in his capacity as guardian. It is a question of fact in each case whether a particular act done by a person was done by him in his capacity of guardian

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or, in his own behalf and on his own account. In the former case the act binds the minor, provided it was otherwise within the power of the guardian, in the latter case it was not. The mere fact that the name of the minor is not mentioned in a contract or in a deed of sale or mortgage, is not conclusive proof that the transaction was not entered into, on behalf of the minor. In each case, the language of the document and the circumstances in which it was executed must be considered. Minors cannot be bound by personal covenants.²It has been expressly laid down in sub-section (1) of Section 8 of the Act that the natural guardian shall in no case bind the minor by a personal covenant. Thus where a father enters into an agreement to sell the minor¶s property, and delivers actual possession of the same in pursuance of that agreement, the said agreement is not binding upon and enforceable against the minor even when it was entered into for his benefit. Such an agreement would be voidable, and not void. The guardian has no power to bind the ward personally, by simple contract e.g., a pronote. TESTAMENTARY GUARDIAN :- Meaning of testamentary guardian.²The testamentary guardians of a minor are those guardians who are appointed by a will of the natural guardian, entitled to act as a guardian for the minor. Needless to say that a will becomes effective only after the death of the testator. Section 9 of the Act runs as follows :² ³(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will, appoint a guardian for any of them in respect of the minor¶s person or in respect of the, minor¶s property [other than the undivided interest referred to in Section 12] or in respect of both. (2) An appointment made under sub-section (1) shall have no effect if the father pre-deceases the mother, but shall revive, if the mother dies without appointing by will, any person as guardian. (3) A Hindu widow, entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will appoint a guardian for any of them in respect of the minor¶s person or in respect of the minor¶s property [other than the undivided interest referred to in Section 12] or in respect of both. (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may, by will, appoint a guardian for any of them in respect of the minor¶s person or in respect of the minor¶s property or in respect of both. (5) The guardian so appointed by will has the power to act as the minor¶s guardian after the death of the minor¶s father or mother, as the case may be, and to exercise all the powers of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will. (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.´

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Who may appoint ?²The Act recognises the right of the following persons to appoint guardian of the person and separate property of a Hindu minor: (1) The father, natural and adoptive; (2) The mother, natural and adoptive; (3) The widowed mother, natural and adoptive. Father.²A Hindu father may by will appoint a guardian in respect of minor¶s person or of separate property or both, but not of undivided interest of the minor in the h-family property. The undivided interest of the minor in the joint-family property f must remain in the hands of Karta. But the father cannot supersede the mother to act as natural guardian by appointing a testamentary guardian in case he predeceases her but if the mother dies without appointing any guardian the appointment made by the father diall revive. If the father during the lifetime of his wife (i.e. minor¶s mother) executes a will appointing any person as guardian of the minor and dies before his wife the pointment is of no effect and mother by virtue of the provisions in Section 6 of the Act J become the natural guardian of the minor but in case the widowed mother of the minor dies without appointing any person as guardian of the minor the appointment made y the father shall revive.

Widow.²A Hindu widow who is entitled to act as the natural guardian of her legitimate children may by will appoint a guardian for any of them in respect of the minor¶s person or separate property or both. Any appointment made by her husband will be of no effect on the face of the appointment made by the widow. The mother is the natural guardian of her illegitimate children and can appoint a person to act as guardian in the lifetime of her husband. So the death of her husband will make no difference in so far as the appointment of guardian for illegitimate children is concerned. In such a case the father has no right to appoint any person as guardian. Mother.²A Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, because he has either ceased to be Hindu, or has become yati, sanyasi or vanaprastha, may by will, appoint a guardian for any of them in respect of minor¶s person or separate property or both. Similarly a Hindu mother entitled to act as natural guardian of her illegitimate children may by will appoint a guardian for any of them in respect of the minor¶s person or in respect of the minor¶s separate property or in respect of both. In this case it is not necessary that the father must be incapable of acting as natural guardian because in the lifetime of mother of the illegitimate children, the father has no right to act as guardian and the mother can even appoint a guardian to the exclusion of the father. Father of an illegitimate child has no power to appoint a testamentary guardian of the child.

Powers of testamentary guardian.²The testamentary guardian has the right to act as the minor¶s guardian after the death of the natural guardian and to exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. So the powers of the testamentary guardian and the natural guardian are the same

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except that the power of a testamentary guardian to deal with property belonging to the minor is subject to the restrictions imposed by the will. Removal of the testamentary guardian.²Under Section 39 of the Guardians and Wards Act, a testamentary guardian can be removed by the court. So it may he noted here that the Act does not abrogate the provisions of Section 39 of the Guardians and Wards Act and, therefore, testamentary guardian can be removed in accordance with the provisions of Section 39 of the Guardians and Wards Act. Some of the grounds for removal of a testamentary guardian as mentioned in Section 39 of the Guardians and Wards Act are as follows (1) Abuse of his trust. (2) Continuous failure to perform the duties. (3) Incapacity to perform the duty. (4) Ill-treatment or neglect to take proper care of his ward. (5) Continuous disregard to any of the provisions of the Act. (6) Conviction in case of an offence for defect of character. (7) Having an adverse interest. (8) Ceasing to reside within the local limits of the jurisdiction of the court; and (9) Insolvency or bankruptcy. In addition to the above, the Hindu Minority and Guardianship Act mentions the Ilowing grounds: (i) if he has ceased to be Hindu, or (ii) has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Guardians Appointed by the Court :- Under the. Shastric Hindu law, the supreme jurisdiction in respect of children was vested in the King. The King, in exercise of this power, was enjoined to appoint nearest relations of the minor as guardian, preference being given to relations on paternal side over relations on maternal side. Now this power is exercised by courts under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act is supplementary to and not in derogation to Guardians and Wards Act. The appointment of guardians of Hindu children is still regulated by e Guardians and Wards Act, 1890. Under the Act, the jurisdiction is Conferred on the District Court. The District Court may appoint or declare in person as the guardian whenever it considers it necessary in the welfare the child. In appointing a guardian, the Court takes into consideration factors, including the age, sex, wishes of the child, the wishes of the parents and the personal law of the child. But before committing custody to the mother, it is not necessary to give a finding that the father is unfit for the custody of the child. The welfare of children is of paramount consideration. The District Court has the power to appoint or declare a guardian in respect of person as well as separate property of the minor. But it has no jurisdiction to appoint a guardian of minor¶s undivided interest in the Mitakshara joint family property. However, if all coparceners are minors, the court may appoint a guardian in respect of the entire joint family property Such an appointment will come to an end as soon as any one of them attains majority The chartered High Courts have inherent jurisdiction to appoint guardians of the person as well as the property of minor children. This power extends to the undivided interest of a coparcener.

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This is also the position under S. 12, Hindu Minority and Guardianship Act. The guardian appointed by the court is known as a certificated guardian. DE FACTO GUARDIAN :- Section 11, Hindu Minority and Guardianship Act.²A de facto guardian means a self-appointed guardian. A de facto guardian is a person who takes continuous interest in the welfare of the minor¶s person or in the management and administration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability. It was on this basis that the de facto guardian enjoyed a unique position in Hindu law²a position which he enjoys in no other system of law. The term µde facto guardian¶ as such is not mentioned in any of the texts, but his existence has never been denied in Hindu law. Sriramulu, Kania, J. said that Hindu law tried to find a solution out of two difficult situations one, when a Hindu child has no legal guardian, there would be no one who would handle and manage his estate in law and thus without a guardian the child would not receive any income from his property, and secondly, a person having no title could not be permitted to inter-meddle with the child¶s estate so as to cause loss to him. To make a person a de facto guardian, some continuous course of conduct is necessary on his part. In other words, de facto guardian is a person who is not a legal guardian, who has no authority in law to act as such, but nonetheless he himself assumes the management of the property of the child as though he were a guardian. De facto guardianship is a concept where past acts result in present status. The term literally means µfrom that which has been done¶. The de facto guardian was recognized in Hindu law as early as 1856. The Privy Council in Hanuman Pd. said that µunder Hindu law, the right of a bona fide incumbrancer, who has taken from a de facto guardian a charge of land, created honestly, for the purpose of saving the estate or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title¶. With this case developed, the law of the power of the de facto guardian. In Sriramulu¶s case, Mahajan, J. enunciated the broad principles thus : if the estate of a person whether a minor or absentee, or a joint proprietor, has been benefited by the act of a person who does not hold proper authority but who is in the management of the estate, that act must be respected by the true owner and should not be repudiated merely on the ground of want of authority. It is on this principle that the law of limited owner¶s (such as Karta, holder of woman¶s estate, Mahant and de facto as well as natural guardians) power of alienation came into existence in Hindu law. Powers of de facto Guardian :- Han uman Pd. is the authority on the guardian¶s power of alienation. A de facto as well as de jure guardian has power to alienate minor¶s property for : (a) legal necessity, and (b) benefit of estate.

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The difference between the powers of alienation of de facto and de jure guardians seems to be only this that an improper alienation made by the de facto guardian is void, while it is voidable if made by a de jure guardian. What are the other powers of that de facto guardian? In Sriramulu, the Federal Court said that both de facto and de jure guardians of minor¶s property have powers to bind the minor¶s estate by a simple contract or debt or loan of it is for legal necessity or benefit of the minor¶s estate and provided further that the guardian has not excluded his liability under the contract, debt or negotiable instrument. In no case is the minor personally liable. It is now settled that a de facto guardian has no power to acknowledge debt on behalf of the minor1 to make reference to arbitration, or to make a gift of the minor¶s property. Section 11 of the Hindu Minority and Guardianship Act, 1956, purports to abolish the de facto guardian. The section runs as under ³After 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.´ There is a controversy whether this section totally abolishes de facto guardians. Some commentators and judicial decisions held that it does. In our submission, it does not. The Act defines guardian as a person having the care of the person of a minor or his property or of both, and includes a natural guardian, testamentary guardian, certificated guardian and a guardian appointed by any Court of Wards. Thus, any person µhaving the care¶ of the person or property or both of the minor will be included in the definition. This will include both the de jure and de facto guardians. This Act nowhere lays down that the person having the care should have it by the authority of law. Section which defines the term µguardian¶ uses the word ³includes´ and then states the aforesaid four types of guardians. The guardian by affinity and de facto guardian thus cannot be deemed to be excluded from the definition of the guardian as given in the Act. This definition in the Hindu Minority and Guardianship Act, 1956 is substantially the same as contained in the Guardians and Wards Act, 1890, and the courts have interpreted the latter provision so as to include a de facto guardian. Section 11, Hindu Minority and Guardianship Act, merely says that a de facto guardian is µnot entitled¶ to dispose of or otherwise deal with a minor¶s property. Even before 1956, the de facto guardian was not µentitled¶ to dispose of the minor¶s property, though if he disposed it of for justified purpose it was valid. Section 11 does not say that an alienation by a de facto guardian is null and void. No text of the Dharmashastra laid down that uncle, son, wife, servant, dependent, slave, apprentice, agent or any other person was entitled to alienate the property of a minor. What they laid down is that if an alienation is made or a debt is taken under certain justifiable circumstances, by any of these persons, the householder is bound to honour it and cannot wriggle out by pleading want of authority on the part of the de facto alienor. Thus, when an alienee sought to bind the shareholder¶s (or minor¶s) estate, he did not base his claim on any authority on the part of alienator or (or de facto guardian) but on the basis that alienation was made for legal necessity or benefit of estate and that he made proper and bona fide enquiries as to the need of the householder (or minor). And in this respect Hindu law made no distinction between a de facto guardian and a de jure guardian. Thus, in our submission, S. 11 does not abolish de facto guardian. In cases where a minor¶s property is not much, or in case where a person is not willing

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to take the pain and expenses of getting one-self appointed as guardian, yet he is willing to act in the interest of the minor, in our peculiar social context, the de facto guardian fulfils a social need. Then it should not be forgotten that if the de facto guardian has power of a guardian, he has also the liabilities of a guardian. On the other hand, if he is treated as an intermeddler or a trespasser, no liability which arises on account of guardian¶s fiduciary character can be imposed on him. The Supreme Court in Jijabai v. Pathankhan said that if the father refuses to act as a guardian and the mother has been in the management of minor¶s property for several years, she has powers to bind the minor by granting lease of minor¶s land in the course of management of the property. The learned judge, Vaidialingam, J. observed that in such circumstances, the mother could be considered as the natural guardian. In our law she is not a co-ordinate guardian with the father, and so long as the father is alive or has not been removed by competent court from guardianship, the mother¶s position will be that of a de facto guardian. The Supreme Court has thus recognized the de facto guardian. In the submission of the present writers, this is a welcome and healthy development. Let us hope this trend continues. The Allahabad High Court has said that even if the father is alive, the mother is competent to give notice of demand under the Rent Control Act and is also competent to file the suit on behalf of the minor. Trivedi, . drew support for this view from the provision of 0. 32, R. 1, C.P.C. under which a ³next friend´ could give the notice and file a suit. His Lordship said that mother, as a ³next friend´ or as a de facto guardian, the position is more or less the same though a de facto guardian has some standing, a next friend may not have any. The mother can also file a suit for specific performance of agreement for purchase of land on behalf of the minor child. The Court also has power to pass order under S. 41 (3), Guardians and Wards Act, against a de facto guardian.

Guardianship OF MINOR¶S PROPERTY :- In the normal circumstances, the natural guardian of the person of a child is also the guardian of minor¶s property. But a natural guardian, father or mother, is not the guardian of minor¶s undivided interest in the joint family property. The same applies to testamentary guardian and certificated guardian who owe their appointment, in the former case to the natural guardian, and in the latter to the court. They will be guardian only of the property in respect of which they are appointed and if some property is excluded from their guardianship they cannot claim to be guardian of the property. Neither the natural guardian nor the court can appoint a guardian of the minor¶s undivided interest in the joint family property. However, most of the High Courts and all the chartered High Courts have inherent jurisdiction, or jurisdiction under special enactments, to appoint a guardian of a minor¶s undivided interest in the joint family property. Natural Guardian¶s power over Minor¶s Property Section 8, Hindu Minority and Guardianship Act.²Section 8(1), Hindu Minority and Guardianship Act, lays down the general powers of natural guardians. A guardian may 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. The generality of the power will exclude fraudulent, collusive, colourable, speculative, unnecessary, or unreasonable transactions. These are fairly wide powers and constitute a charter of guardian¶s powers whereby the guardian is empowered to act safely in the welfare of the minor, and the third parties can also deal safely with the

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guardian within the ambit of these powers. However, nothing in S. 8 restricts the Karta¶s power of alienating minor coparcener¶s interest in the joint family property wherever he has power to do so.¶ S. 8 of the Hindu Minority and Guardianship Act, which greatly restricts natural guardian¶s power of alienation. Sub-section (1), dealing with the general powers, lays down that the natural guardian of a Hindu minor has power, subject to the provisions of the 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 a minor¶s estate. Sub-section (2) provides that natural guardian cannot, without the previous permission of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of immovable property, a minor can execute a decree of recovery of possession if his property was sold by the father without prior permission of the court or lease out any part of such property for a term exceeding five years or for a term exceeding more than one year beyond the date on which the minor would attain majority.5 Sub-section (4) lays down that the court shall not grant permission to the natural guardian to do any act mentioned in sub-section (2) except in case of necessity or for the evident advantage of the minor. Sub-section (3) lays down that 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. The procedure for obtaining the permission of the court is regulated by the Guardians and Wards Act, 1890. Return of consideratjon.²When a minor repudiates an improper alienation made by his guardian, he should return the consideration received by him. An alienation of property without the permission of the court is voidable at the option of the minor.2 A transferee of the minor can also avoid an improper alienation made by the guardian.3 It is not a minor¶s personal right. But the question is if an alienation is voidable as it is found to be not for necessity or for the evident advantage of the minor, can an alienee still seek protection under the rule of Hanuman Prasad¶s case ? That rule protects an alienee who made proper and bona fide enquiries even though it turns out that he was misled by the representation of the guardian. Is a suit necessary to get an improper alienation set aside ?² It now seems to be settled that no suit is necessary to repudiate an improper alienation, but if the minor wants recovery of possessions it will be necessary. Limitation.²There is some controversy among the High Courts as to whether the period of limitation for challenging an improper alienation by the minor is three years under Article 65 or 12 years under Article 60, Limitation Act.7 The Supreme Court has settled the controversy in Vishambhar v. Laxminarayana AIR 2001 SC 2607 by holding that Article 60 would be applicable. In this case, it was held that sale by guardian without prior permission of court is voidable and not void ab initio. Suit by a minor was filed for recovery of possession from the purchaser without a prayer for setting aside of the sale deeds. Such a prayer was made by way of amendment. But the amendment was made after a period of 3 years had elapsed from the date the minor attained majority. Suit was liable to be dismissed. In two areas the guardian¶s powers are not fettered by S. 8, and he continues to have the same powers as under the old Hindu Law. These areas are (a) alienation of movable property, and (b) contracts. Can a guardian bind the minor by his contracts for the

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sale or purchase of immovable property ? And if so, can such a contract be specifically enforced There has been controversy on this matter and the Privy Council¶s decision in Mir Sarurajan¶s case is responsible for it. A distinction is made between a contract for sale of the minor¶s property and a contract for the purchase of minor¶s property. The predominant view is that the guardian has such power and a contract for the purchase of immovable property entered into by the guardian can also be specifically enforced.´ When the guardian had obtained prior permission of the court to alienate minor¶s property and enters into a contract of sale, the contract can be specifically enforced.¶ Previous permission of the Court.²Sub-section (2) of Section 8 of the Act lays down that no transaction by sale, gift, exchange or otherwise of any part of the immovable property of the minor and lease of 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 lie minor will attain majority shall be effected by the natural guardian without the previous sanction of the court. The restrictions on the powers of natural or testamentary guardians provided by the Act are identical with those prescribed by Section 29 of the guardian and Wards Act, 1890, on the powers of the guardian appointed by the Court. For example A is the natural guardian of person and property of his minor son B aged 17 years. A as guardian of B leases out B¶s house to C for three years without the previous permission of the Court. The lease is not valid as the lease extends to a term more than one year beyond the date on which the minor will attain majority (though the lease is for a term not exceeding five years) and no permission has been obtained from the court. Meaning of Court.²Section 8(b) of the Act defines the word ³court´ and the following courts are empowered to grant permission for transfer of immovable property. (a) The District Court; (b) The City Civil Court; (c) A court empowered under Section 4-A of the Guardians and Wards Act, 1890. An application for obtaining permission under Section 8(2) of the Act can be made in any such court within the jurisdiction of which the property in dispute is situate and if the property lies within the jurisdiction of more than one such court then all such courts will have jurisdiction and guardian may choose any of such court. Court when to grant permission.²Court will grant permission only in cases of: (1) necessity, or (2) an evident advantage to the minor. The Act throws upon the court the entire responsibility for granting permission to the guardian to do any acts mentioned in Section 8(2) of the Act and it is undoubted that the court must exercise the utmost circumspection before granting the permission. The court must hold a due enquiry before permission is granted and determine whether the proposed transaction would be for the minor¶s benefit. Panni Lal vs Rajinder Singh And Anr AIR 1993 SC :-

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Section 8 of the Hindu Minority and Guardianship Act sets out the powers of the natural guardian of a Hindu minor. The natural guardian of a Hindu Minor has power, subject to the provisions of section 8, to do all acts which are necessary or reasonable and proper for the benefit of the minor or his estate. The natural guardian, however, may not without the previous permission of the court sell any part of the immovable property of the minor. Any disposal of immovable property which is not necessary or reasonable and proper for the benefit of the minor or is without the previous permission of the court is voidable at the instance of the minor. The question is whether, in the circumstances of the case, it may be said that the sale was effected by the father and natural guardian of the respondents because he had attested the sale deed executed by the mother of the respondents. In this behalf our attention was invited to this Court's judgment in Jijabai Vithalrao Gajre vs. Pathankhan and ors., AIR 1971 S.C. 315. This was a case in which it was held that the position in Hindu law was that when the father was alive he was the natural guardian and it was only after him that the mother became the natural guardian. Where the father was alive but had fallen out with the mother of the minor child and was living separately for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, it was held that, in the peculiar circumstances, the father should be treated as if nonexistent and, therefore, the mother could be considered as the natural guardian of the minor's person as well as property, having power to bind the minor by dealing with her immovable property. 8. The Provisions of section 8 are devised to fully protect the property of a minor, even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor s immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the court has been obtained. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it Effect of such permission.²An alienation made with the permission of the court, cannot be impeached by the minor or any other person except in a case of fraud or underhand dealing. The reason is that the alienee is entitled to trust the order of the court and he is not bound to enquire as to the expediency or necessity of the alienation for the benefit of the minor¶s estate. The existence of the court¶s sanction is conclusive on the question of the enquiry, which is all that is necessary to be made by a transferee unless it is shown that the transferee was a party to a fraudulent misrepresentation to the Court. Effect of subsequent cancellation of permission.²If the sanction has been accorded and in pursuance thereof the transfer is effected, the subsequent cancellation of the sanction would make no difference to the validity of the transfer. Effect of transfer in contravention of the Act.²Section 8(3) lays down that any disposal of immovable property by a natural guardian which is not necessary reasonable, proper or not for the benefit of the estate or which has not been sanctioned by the Court or is effected by a lease

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for a period beyond the period prescribed by a clause (b) of Section 8(2) without sanction, is voidable (not void) at the option of the minor or any person claiming under him by a suit filed by such minor or person claiming under him within three years from the date when a minor attains majority. Procedure for obtaining permission.²(l) Procedure and principles which will govern grant of permission by the court to a natural or his testamentary guardian to transfer the immovable property are prescribed by sub-sections (4), (5) and (6) of Section 8 of this Act, and are the same as those laid down by the Guardians and Wards Act, 1890, for granting such permission to guardian appointed by court. Section 31(2), (3), (4) of the Guardians and Wards Act runs as follows: (2) The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such condition, if any, as the court may see fit to attach to the permission; and it shall be recorded, dated and signed by the judge, of the Court with his own hand, or when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him. (3) The Court may, in its discretion, impose the following among other condition namely:² (a) that a sale shall not be completed without the sanction of the court; (b) that a sale be made to the highest bidder by public auction, before come or some person specially appointed by the court for that purpose at a time and place to be specified by the Court, after such proclamation of the intended sale as the court, subject to any rules made under this Act by the High Court directs; (c) that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the court directs; that the whole or any of the proceeds of the sale permitted shall be paid. into the court by the guardian, to be disbursed there from or be invested by the court on prescribed securities or to be otherwise disposed of as the court directs. (4) Before granting permission to a guardian to do an act mentioned in Section 29 the court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof, and shall hear and record statement of any person who appears in opposition to the application.´ Braham Singh vs Sumitra & Ors. on 1 August, 2011 8. It was also contended by the learned counsel for the defendants that defendant No. 1, despite being natural guardian of defendants No. 2 to 4 was not competent in law to enter into an agreement to sell their immovable property, without prior permission of the Court. In support of his contention, he has relied upon Section 8(2) of Hindu Minority and Guardianship Act, 1956, which, to the extent relevant, provides that the natural guardian of a Hindu minor shall not, without previous permission of the Court, mortgage, charge or transfer by sale, gift, exchange or

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otherwise, any part of the immovable property of the minor and any disposal of immovable property in contravention of this requirement, would be voidable at the instance of the minor or any person claiming under him 9. it is within the competence of the natural guardian of Hindu minor to enter into an agreement to sell the immovable property of the minor provided the transaction is for the benefit of the minor or in the realization, protection or benefit of his estate, but, the guardian cannot execute a sale deed in favour of the purchaser, without prior permission of the Court. Of course, such an agreement if entered into by the guardian on behalf of the minor would be voidable at the instance of minor, who will be entitled to show that the contract was not for his benefit but it is difficult to accept that a guardian cannot enter into an agreement to sell the CS(OS)No. 1208/2011 Page 9 of 17 immovable property of the minor even if such a transaction is for the benefit of the minor or in the realization, protection or benefit of his estate. 11. In Darbara Singh Vs. Karminder Singh and Ors. AIR 1979 Punjab & Haryana 215, a judgment relied upon by the defendant, the Court referring to the provisions of sub- Section 8(1) of Hindu Minority and Guardianship Act, which provides that the guardian can, in no case, bind the minor by a personal covenant, inter alia, observed as under: "The provision of sub-section (1) of Section 8 of the Act makes it expressly clear in unqualified terms that no personal covenant of the guardian shall be binding on the minor. It means only this that, when looked from the stand point that the aforesaid interdiction is added at the end of Section 8(1) by way of proviso to the clause that preceded it, a guardian though well within his right to enter into a contract for the benefit of the minor, but the said contract would not be enforceable against the minor even when it was entered for his benefit and would be voidable at his instance. Learned counsel for the appellant also placed reliance on a Single Bench decision of this Court reported in Paras Ram v. Bhal Singh 1973 RLR 37. The decision in Paras Ram's case does not go any farther than this that the provision of sub-section (1) of Section 8 of the Act does not prevent a guardian to enter into a contract regarding the property of a minor for his benefit without the prior permission of the Court but that is not the same thing as saying that such a contract would be binding upon the respondent. That was a case in which the decree was sought against the guardian and not against the minor and the decree was not the decree for specific performance but for the return of earnest money received by the guardian and damages envisaged in the contract, in the failure of the contracting party to fulfill its own part of the contract." There is no legal bar to the guardian entering into such a transaction provided it is for the benefit of the minor though he cannot complete the transaction by executing a sale deed/transfer deed in favour of the purchaser, without permission of the Court. Of course, such a contract being voidable at the instance of the minor, it would be open to him to show that the contract was not for his benefit and therefore does not bind him. 12. The learned Counsel for the plaintiff has referred to Roomal & Ors. v. Siri Niwas AIR 1985 Delhi 153, Sri Narayan Bal & Ors. v. Sridhar Sutar & Ors. AIR 1996 SC 2371 and Ansal Properties & Industries Pvt. Ltd. v. Anand Nath & Ors. ILR 1992 Delhi 540. In Roomal & Ors.

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(supra), the Court held that the guardian of a minor is competent to enter into an agreement to purchase property on his behalf and his authority and competence can be challenged only by the minor and not by the vendor, who is not the keeper of the minor. In Sri Narayan Bal (supra), it was held that Hindu joint family being a separate entity can dispose of the family property including undivided interest of the minor in it. In Ansal Properties & Industries Pvt. Ltd. (supra), the Court was not required to deal with the power of a natural guardian to transfer the immovable property belonging to the minor. The Court in this case was of the view that Hindu Minority and Guardianship Act, 1956 does not extend to the administration of an undivided interest of a minor in a joint family which can continue to be administered by a de facto guardian. This judgment also does not help the plaintiff in any manner. 13. For the reasons given in the preceding paragraphs I am of the view that since prima facie there was no valid and concluded contract between the parties, no case for grant of injunction against creation of third party interest in the suit property is made out. The application is accordingly dismissed. The observations made and the view taken in this order will not affect the final decision of the suit on merit.