By Nazaqat Lal, Advocate & Solicitor
nazaqat_lal@hotmail.com | Oct 26, 2021
Introduction
Section 8 of the Hindu Minority and Guardianship Act, 1956 (“the Act”) provides that sale or transfer of immovable property of a minor requires the natural guardian of such minor to take prior permission of court. The section further casts an obligation on the court not to provide such permission except in the case of necessity or for an evident advantage to the minor. Disposal of a minor’s immovable property without court’s prior permission is voidable at the instance of the minor or any person claiming under him. The intention of the Legislature to protect the property and interest of minors till the time they attain majority is abundantly clear.
Section 12 of the Act states that no guardian shall be appointed for the minor’s undivided interest in joint family or HUF property where such property is under the management of an adult member of the family. The question that naturally arises from a combined reading of these two sections is whether Section 8 of the Act is applicable to sale or transfer of joint family property by a Karta wherein a minor’s undivided interest is involved. Alternatively, is prior court permission required by the Karta at the time of sale or transfer of joint family property that involves a minor’s undivided share? This question was answered in the negative by the Bombay High Court[1] and Supreme Court of India[2].
The Bombay High Court placed reliance on Sections 4 and 6 of the Act to answer the aforesaid question. Section 4 defines the term ‘guardian’ and Section 6 sets out the natural guardians in the case of a Hindu minor and the order of priority of persons who are entitled to be guardians to Hindu minors.
Analysis
The opening words of Section 6 are as under.
“6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— …” (emphasis supplied)
These words were interpreted and explained by the Bombay High Court as follows.
“7. …The words “excluding his or her undivided interest in joint family property” which have been put in brackets make it clear that undivided interest of a Hindu minor is excluded from the operation of the provisions of the Act and the subject-matter with which the Act deals is limited to guardians in respect of minor’s person or in respect of minor’s property other than his undivided interest in joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court. The concept of a guardian in respect of undivided interest in the joint family property is thus specifically excluded from the purview of the Act. The powers which a Hindu father therefore has, as a natural guardian of his minor sons under Hindu Law, are kept intact and are not in any way affected by the provisions of the Hindu Minority and Guardianship Act so far as the undivided interest of a Hindu minor in the joint family property is concerned.
- The restrictions contained in s. 8, therefore, do not apply in respect of the undivided interest of a minor in joint family property and consequently s. 8 does not debar the manager or karta of a joint Hindu family from alienating joint family property including the interest of minor without obtaining the previous permission of the Court, even if the manager or karta, happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course, the alienation would have to be justified under Hindu law but s. 8 does not require that any previous permission of the Court should be obtained before effecting such alienation. Under Hindu law a manager and karta of a joint Hindu family can alienate joint family property so as to bind the interest of minor coparceners in such property provided the alienation is either for legal necessity or for the benefit of the estate. If the manager and karta happens to be the father, he has certain additional powers of alienation under Hindu law and in exercise of those powers he can alienate joint family property so as to bind the interest of his minor coparceners in such property. These powers are not at all curtailed or affected in any way by the provisions of the Hindu Minority and Guardianship Act.”
The Supreme Court answered the question on similar lines.
“5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family of the property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated Under Section 8 where under his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family Property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before the disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor’s undivided interest in the joint family property, as provided Under Sections 6 and 12 of the Act, the previous permission of the Court Under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.”
The Act has drawn a distinction between joint family property in which a minor has undivided interest and other property of a minor. Consequently, the rules applicable to sale and transfer of both types of property are also different; the latter being more stringent. However, in both cases, necessity and benefit of the minor or estate, as the case maybe, are a sine qua non.
Conclusion
While the Legislature has kept the interest of minors paramount, it has to also ensure that joint family property remains easily transferable. If Section 8 was applicable to sale and transfer of joint family property, thereby, requiring prior court permission to sell or transfer joint family property in which a minor’s undivided interest was involved, it would become very difficult to effect sales and transfers of joint family property as at most times, there would be at least one minor in the Hindu undivided family.
[1] Sakharam Sheku Shinde v. Shiva Deorao Jamale [1973 SCC OnLine Bom 89 : (1974) 76 Bom LR 267]
[2] Narayan Bal & Ors. v. Sridhar Sutar & Ors. [AIR 1996 SC 2371 : (1996) 8 SCC 54]
