(1) 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 Section 8 is no way restricted than that was recognised under Hindu Law. (Nank Chand v. Ramchandra, A.I.R. 1981 SC 519).
(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 party 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.
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 retifiying 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 he does not choose to do so, the Court would refuse to avoid such a transfer. (Surta Singh v. Pritam Singh, A.I.R. 1983 P&H 114).
(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 evidence advantage of the minor.
(5) The Guardians and Wards Act (8 of 1890) shall apply to and in respect of an application for obtaining the permission of the Court under section 29 of that Act, and in particular:
(a) Proceedings in connection with the application shall be deemed to be proceedings under the Act within the meaning of section 4 A thereof;
(b) The Court shall observe the procedure and have the power specified in sub-sections, (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 act mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that Court.
(6) Sub-section (2) of section 8 of the Act prohibits all alienations by a natural guardian of a minor’s immovable property without the permission of the Court. Prior to the commencement of this act, such limitations were placed on the power of a guardian appointed by Court only. The natural guardian had the power in the management of the minor’s estate, mortgage or to sell any part thereof in case of necessity or for the benefit of the estate.
[Hanuman Prasad v. Mst. Babooee (1856) 6 M.I.A. 393,412], It is manifest from the Notes on Clauses pertaining to S. 8 that the declared intent and object of the enactment of S. 8 of the 1956 Act was to equate the legal position of the natural guardian of a Hindu minor with that of a guardian under the Guardians and Wards Act. (Surta Singh v. Pritam Singh, .A.I.R. 1983 P & H 114).
Sub-section (1) of section 8 permits all acts of a natural guardian which are necessary for the benefit of the minor besides the relization, protection or benefit of the minor’s estate. The three expressions “realization, protection and benefit of the estate” used in this sub-section were included within the meaning of the expression “benefit of the estate” used in the leading case Hanuman Prasad v. Mst. Babooee, decided by the Judicial Committee which laid down “Under the things to be included in that expression will come the preservation of the estate, defence against hostile litigation, the protection to it from injury or deterioration by inundation and such like things”.
To justify the mortgage or alienation by the natural guardian and to warrant permissior;of the Court of such an act under sub-section (4) there must be a case of necessity or an evident advantage to the minor. The, maintenance of the minor, the repairs to his property, the performance of his father’s funeral ceremonies and the payments of his debts are all necessities for which a guardian could validly transfer the minor’s property. After the commencement of the, Act this is to be this is to be done with the permission of the, Court which was not necessary before.
It is to notice that this section does not put any restriction of the purchase of property for the minor, and hence if out of the, income of the minor’s estate the natural quatrain purchases & property for the minor and there no question of permission o| court cab arise. Sale of properly of a minor for his marriage it| violation of the Child Marriage Act cannot be said for necessity or benefit of minor. [Pavitar Singh v. Bachittar Singh, 69 Punj L.R. 293].
Burden of proof:
Prior to the commencement of this Act when no permission of the court to alienate was necessary for a natural guardian to dispose of a minor’s property, the burden was to be held on the alienee and it was to be the same as that in tin case of an alienation by the manager of a joint family property In the case of a guardian appointed by the Court the Guardian and Wards Act prohibited alienation by him without the sanction of the Court; not even in cases of necessity.
Any alienation made without such a sanction was voidable at the instance of the minor and other persons affected thereby under sections 29 am 30 of that Act Where the Court had sanctioned the alienation the alienee could rely upon the order of the Court and need not have proved the actual legal necessity.
The same will now be the position in the case of a natural guardian also, since after the commencement of this Act which makes it incumbent upon him to obtain sanction of the Court before he can mortgage o alienate a minor’s property.
Where the mother of the minor sons acting as their guardian disposed of their shares in a property held by the minors and their father jointly even though the father of the minors, their natural guardian, was alive and not disqualified from acting as guardian, the alienation was void and that being so in the suit filed by the minors for partition and separate possession of their share in the joint property after ignoring the alienation made by their mother it was not necessary for the minors to claim for cancellation of the alienation. (P.T. Chathu Chettair v. K.K. Khanaran A.I.R. 1984 Ker 118).