(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary and reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate’s 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. (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 Guardian 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 particular— (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 sub-sections (2), (3) and (4) of Section 31 of the Act; (c) An appeal shall lie from an order of the court refusing permissions 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 decisions of that court. (6) In this section ‘court’ means the City Civil Courts or District Courts or a court empowered under Section 4-A of the Guardians and Wards Act, 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 whose jurisdiction any portion of the property is situate.” The section enumerates two categories of powers which a natural guardian may exercise: one relates to absolute powers in respect of the persons and property of his word, the other relates to such powers which such guardian may exercise subject to the sanction and control of the court.
The manner, the method and the form of obtaining the sanction of the court in such matters which the guardian may do, subject to the permission and control of the court, are also herein mentioned. The section excludes a Hindu minor having a natural guardian as defined by the Act for his undivided interest in a joint family property. This would therefore, exclude a natural guardian as understood by the Act applying for permission of the court to alienate property of the minor under Section 8(2) of the Act. The result would be that so long as the Hindu law shall apply, a father or a natural guardian could alienate a minor’s interest in the coparcenary property subject to the well known conditions regarding benefit to the estate and legal necessity. Legal necessity has to be proved and cannot be inferred from mere recitals in the deeds, where however due to lapse of time, direct evidence has become scanty, and then such recital assumes importance and may fill the inevitable lacuna in the evidence. It is worthwhile to note that under old Hindu law, i.
e., before the commencement of the present Act, the powers of natural guardian were quite extensive. In this respect an important judgment was delivered by the Privy Council in which it was clearly laid down that only in the case of legal necessity a natural guardian could mortgage or sell the property of a minor, or lay charge on it or alienate it in any other way, although such powers are not unlimited. The main object of this pronouncement was to clearly delineate that it is only in the cases of extreme necessity or in the matter of benefit to the state that the minor’s property could be alienated and this was considered to be the privilege of the natural guardian only. The Madras High Court while considering the incidents of legal necessity in Gopal Krishna Shah v. Krishna Shah, laid down, “where the mother sold away the house belonging to minor which was charged with mortgage debt and redemption whereof had become impossible, it would be regarded as a case of legal necessity.
The guardian would be competent enough to alienate the property of the minor in the case of legal necessity and benefit to the estate of minor. The burden of proof is on the purchaser to establish legal necessity. The determination of legal necessity will be done according to facts and circumstances of each case. The maintenance of minor’s repairs of his immovable property, performance of funeral rites of his father, payment of father’s debts are the various incidents of legal necessity.
In Ramlu v. Pundrika Kashyap, the Federal, court laid down the following principles: 1. Any debt incurred by the guardian not for the necessity of the minor or for the benefit of his estate would not be binding upon the minor. 2.
Any debt intended for the necessity of the minor or for his benefit would be binding upon minor. 3. Where the guardian has incurred any liability through the negotiable instruments, that would be against the estate of the minor. In P.T. Chathu Chettiar v. Kariat Kannummal Kanaran, the court observed that when the father is alive and is not disqualified to act as the guardian of the minor, it is incompetent for the mother to interpose herself as guardian of the minor.
Any alienation or disposal of the property by the mother acting as guardian of the minors is unauthorised and totally devoid of any effect. Where in the instrument of alienation the father of the minor has been mentioned and he has signed in the capacity of a witness, that does not validate the alienation. Any alienation without the prior permission of the court would be voidable at the option of minor.
In the present case the alienation by mother was held to be void as she was incompetent to do it during the life time of the father of minor. In Nazuliamma Bhavani v. Gopal Krishna Nair, the Court’s setting aside that sale of minor’s property by Natural Guardian in contravention of provisions of Section 8(2) is not void but merely voidable at instance of minor.
Suit must be filed by minor to set aside sale transaction under the prescribed period of the Act. Where the minor’s property has been alienated by the natural guardian in absence of prior permission of the court, and the minor on attaining the majority voluntarily ratifies the alienations, it become valid. In Amiratha Kutumban v. Sonvath Kutumban, the court observed that the right to get the alienation, made by the minor’s guardian, set aside is not a personal right.
The alienee cannot be held disqualified to challenge the validity of such alienation under Section 8(3) of the Act. The expression used in Section 8(3) “intended to include all such persons, who possess the right to get the alienation made by the minor’s guardians, set aside.