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Limitation of Powers of Natural Guardian under the Hindu Minority and Guardianship Act, 1956

Where the minor and his mother constitute a joint Hindu family each with a moiety undivided interest in the house belonging to the family, the mother in absence of the father, can alienate even minor’s half share in the house under the personal law. Section 8 of the Act will not apply to such alienation. The alienation is only voidable and on attaining the majority the minor may accept the sale or repudiate it.

The court will grant permission only in cases of (1) necessity, or (2) an evident advantage of material nature to the minor. Either of the two has to be proved. Mere recital of a document is not sufficient to draw an inference of necessity. Where direct evidence is not available on account of passing of long time, then recitals become very important. It has to be established that alienation of the property of minor was the only option left out to fulfill the needs of the family.

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The Act throws upon the court the entire responsibility for granting permission to the guardian to do any acts mentioned in Section 8(2) and it is undoubted that the court must exercise the utmost circumspection before granting the permission. The court must hold due enquiry before permission is granted and determine whether the proposed transaction would be for the minor’s benefit.

The section does not apply to the shares of a minor in an undivided Hindu family. Under the Act not unlike the old Hindu law two things are to be ascertained, firstly, whether all the acts done by the guardian are necessary and performed by him on behalf of the minor, secondly, whether they are for the benefit of the minor.

But the present Act gives the power of alienation only after obtaining the permission of the court which fact did not exist under old Hindu law. But the karta of joint Hindu family enjoyed absolute power to alienate undivided interest of the minor.

In Sri Narayan Bal and others v. Sridhar Sutar the Supreme Court had held that where a joint Hindu family property in which minor had an undivided share is sold or disposed of by the Karta, previous permission of Court before such disposition is not required as Section 8 is not applicable.

Section 8(6) of the Act defines the word ‘court’ and the following courts are empowered to grant permission for transfer of immovable property:

(a) The District Court;

(b) The City Civil Court;

(c) A court empowered under Section 4-A of the Guardian and Wards Act, 1890.

An application for permission can be filed in any of the courts within whose local jurisdiction the property in respect of which the permission is sought is situated. If the property is situate within the jurisdiction of more than one court then all such courts will have jurisdiction and the guardian may choose any of such courts.

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