What are the powers of a natural guardian of a Hindu ?

After the passing of the Hindu Minority and Guardianship Act,1956, the guardian of a Hindu

Minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for relation, protection or benefit of the minor’s estate. This provision makes it clear that the guardian is entitled to act so as to bind the minor if it is necessary or reasonable and proper for the benefit of the minor. The power thus conferred by sec.8 is no way restricted than that was recognized under Hindu law.[1]

In Subhashappa P. Meti v. Maroti L. Sawarkar,[2]  the Hon’ble Bombay High Court held inter alia that alienation of minor’s property by natural guardian (Mother) of the minor, without obtaining permission of court for such alienation, is void ab initio;

 

In another reported case, the Hon’ble Apex Court in Kumar v. Jahgirdar v. Chetana K. Ramatheertha,[3] held that in matter relating to the custody of the minor child the interest and welfare of the child is the paramount consideration and not the convenience or pleasure of the parents;.

 

 As per Sec.8 of the Hindu Minority and Guardianship Act,1956 - (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.

 

(2) 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.

 

However in Than Singh v. Barelal, the Hon’ble Bombay High Court held that, where the guardian acquires property for the benefit of the minor no permission of court is necessary;[4]

 

(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.[5]

 

(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.

 

A transfer of immovable property by the natural guardian of a Hindu Minor far from being void or being a nullity is in fact  one which fully binds the other party. The minor can always avail the benefit thereof and after rectifying or accepting the same  enforce the contract. Such a transaction is perfectly valid until duly avoided by the minor.

 Not only that, precedent is numinous that he can avoid the same only by  restoration of any benefits received under such a transfer  and if does not choose to do so, the court would refuse to avoid such a transfer.[6]

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[1] Nank Chand Vs. Ram Chandra, AIR 1981 SC 519

[2] AIR 2006 (NOC) 608 (Bom)

[3] AIR 2001 SC 2179

[4] AIR 1974 MP 24

[5] Iruppakutty Vs. Cherukutty, AIR 1972 Ker 71

[6] Surta Singh Vs. Pritam Singh, AIR 1983 P& H 114