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Powers of Natural Guardians (S. 8)

Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Powers of Natural Guardians

In the last article, we have seen meaning of the term natural guardian. In this article, we shall study the rights and power of a natural guardian under the Hindu Minority and Guardianship Act, 1956.

Rights of Natural Guardians:

The natural guardian of having the following rights in respect of minor children:

  • Right to custody
  • Right to determine the religion of children
  • Right to education
  • Right to control movement
  • Right to reasonable chastisement

These rights are conferred on the guardians in the interest of the minor children and therefore of each- of these rights is subject to the welfare of the minor children. The natural guardians have also the obligation to maintain their minor children.

Powers of Natural Guardian and Restrictions on Him:

Section 8: The Hindu Minority and Guardianship Act, 1956:

Powers of natural guardian:

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; 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 subsection (2) except in case of necessity or for an evident advantage to the minor.

  • As per Section 1 of the Act,  the natural guardian of a Hindu minor has the power to do all acts, which are mandatory or reasonable and proper for the benefit of the minor for the realization, protection or benefit of the minor’s estate, but the guardian can in no case bind the minor by a personal covenant.
  • As per Section 8 Subsection 2 Clause (a) of the Act, the natural guardian should get the prior permission of the court, to mortgage or transfer by sale, gift, exchange or any part of the immovable property of the minor.
  • As per Section 8 Subsection 2 Clause (b) of the Act, prior permission from the court is needed to lease any part of minor’s property for a term exceeding five years (5 years) or for a term extending one year beyond the date on which the minor attains majority.
  • As per Section 8 Subsection 3 of the Act, any disposal of immovable property by the natural guardian, in contravention of Section 8 Subsections (1) and (2) of the Act is voidable at the instance of the minor or any person claiming under him.
  • Section 8 Subsection 4 lays down that no court will grant permission to the natural guardian to do any of the acts such as Transfer of Property or Lease of a Property under Subsection 2 only in case of necessity or for an evident advantage to the minor.

Application for Obtaining Permission From Court:

Section 8: The Hindu Minority and Guardianship Act, 1956:

Powers of natural guardian (Contd):

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were 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 that Act within the meaning of section 4A thereof;

(b) the court shall observe the procedure and have the powers specified in Subsections (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 Acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

In Radheshyam v. Kisan Bala, AIR 1971 Cal. 341 case, the Court held that the Court can also enforce specific performance of a purchase agreement at the instance of natural guardian, if it is satisfied that the purchase is for the benefit of the minor, having regard to all the facts and circumstances of the case.

Section 5 of the Act, lays down the procedure to be followed by the guardian for obtaining the permission of the Court to transfer or lease a minor’s property.

  • The guardian needs to apply for permission to the city civil court, or a district court or a court empowered under the Guardians and Wards Act, 1890 (8 of 1890).
  • Submit the application to the concerned court within the local limits of whose jurisdiction any portion of the property of minor is situated.
  • An appeal reclines from an order of the court refusing permission to the natural guardian to do any of the acts of property transfer to the court to which appeals ordinarily lie from the decisions of that court.

Meaning of the term “Court” Under the Act:

Section 8: The Hindu Minority and Guardianship Act, 1956:

Powers of natural guardian (Contd):

(6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 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 jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.

Previous Topic: Concept of Natural Guardians Under the Act (Ss. 1 to 7, 12)

Next Topic: Testamentary Guardians (S. 9 and 10)

Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Powers of Natural Guardians

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