Hindu Minor�۪s Interest in Immovable Property

The Hindu Minority and Guardianship Act 1956 (“HM Act”) inter-alia governs a hindu minor’s interest in an immovable property, and the rights of the guardian of the minor to enter into a contract in respect of the minor’s property. Bar on Minors to enter into a contract The Indian Contract Act, 1872 (“Contract Act”) frames and validates the contract or agreement made between parties. Section 2(h) of the Contract Act defines a ‘contract’ as an agreement which is enforceable by law. Section 10 of the Contract Act stipulates that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Section 11 of the Contract Act stipulates that a person competent to contract:

• should have attained majority as per law (i.e., 18 years);
• should be of sound mind at the time of making a contract; and
• should not be disqualified from contracting by any law to which he is subject.

In view of the provisions of Section 11 of the Contract Act, a minor cannot enter into a contract. A contract on behalf of a minor can be entered only by the guardian of the minor, subject to such contract being in compliance with the provisions of the HM Act.

Contracts entered on behalf of a Minor

Section 8 of the HM Act deals with powers of the natural guardian, and inter alia provides that subject to the provisions of the said Section 8, a natural guardian of a minor:

• is entitled to do all acts which are necessary or reasonable and proper for the benefit of the minor or for realisation, protection or benefit of minor’s estate; but the guardian can in no case bind the minor by a personal covenant; and
   
• shall obtain previous permission from the court to mortgage, charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or  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.

Any contract or disposal of immovable property belonging to a minor, by a natural guardian, in contravention of the aforesaid provisions of the HM Act is voidable at the instance/option of the minor, on the minor attaining majority, subject to the limitation prescribed under the Limitation Act (defined below).

Rights of Minor on attaining Majority

The Limitation Act, 1963 (“Limitation Act”) inter alia provides the period within which proceedings/suits can be filed with respect to a claim.

Article 60 of the Limitation Act stipulates that a minor shall, within three (3) years from the date of attaining majority, be entitled to file a suit for setting aside the sale of immovable property by his/her guardian.

In a catena of decisions, the Supreme Court  has held that a suit to set aside sale of the minor’s interest in immovable property, in contravention of the provisions of Section 8 of HM Act, shall be filed as per Article 60 of the Limitation Act i.e. within three (3) years from the date of the minor attaining the age of majority.

The Supreme Court in the case Narayan v. Babasaheb[1] held that:

“once a transaction takes place in the name of the minor which is in contravention with the HM Act and which is not done for legal necessity, such transaction is voidable and unless such a transaction is sought to be impeached or set aside, the question of recovery of possession of that property does not arise. A close analysis of the language of Article 60 of the LA Act, would indicate that it applies to suits by a minor who has attained majority and further by his legal representatives when he dies after attaining majority or from the death of the minor. The broad spectrum of the nature of the suit is for setting aside the transfer of immovable property made by the guardian and consequently, a suit for possession by avoiding the transfer by the guardian in violation of Section 8(2) of the HM Act. In essence, it is nothing more than seeking to set aside the transfer and grant consequential relief of possession.  There cannot be any doubt that a suit by quondam minor to set aside the alienation of his property by his guardian is governed by Article 60 of the LA Act. To impeach the transfer of immovable property by the guardian, the minor must file the suit within the prescribed period of three years after attaining majority.  It is clear that where there is a case simply for setting aside the sale made by the natural guardian violating Section 8(1) and 8(2) of the HM Act, it is voidable. On bare reading of Article 60 of LA Act makes it clear and unequivocally gives a meaning that the provisions of the LA Act is to be interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which means the law is hard but it is law and there cannot be any departure from the words of the law”.

Conclusion

In view of the above, a minor’s property can be dealt with by the guardian of the minor, only in accordance with the provisions of Section 8 of the HM Act, failing which the same is voidable at the instance of the minor. For this, the minor, is required to file a suit seeking setting aside of the transfer of his property within three (3) years from attaining majority. The said suit should inter alia provide that the transfer was in contravention of the HM Act i.e. the transfer was not necessary or reasonable and proper for the benefit of the minor or was done without the permission of a competent court.

The views and opinions expressed in this article belong solely to the author and do not reflect the position of TLH, Advocates & Solicitors.

[1] (2016) 6 SCC 725