The Powers of natural guardian can be kept under two heading:
1. Right regarding the body of minor
2. Right regarding the property of minor
Section 8(1) of the act says that the natural guardian can perform all those functions regarding the minor in which are for his benefits such as education, maintenance, custody, marriage, etc of the minor come under this heading. The guardian can enjoy these powers only for benefit and welfare of minor.
The Powers of natural guardian regarding property are following:
Transfer of property: Section 8(2) of the act says that the mortgage, sale, gift, exchange or other type of transfer of immovable property of minor shall be made only with the prior permission of court, not otherwise. If such transfer is made without the permission of court, then it shall be voidable at the option of the minor – Narendra Singh vs. Defender Singh AIR 1982 Punjab &Haryana 201 and Vishwanath vs Damodar, AIR 1982 Kolkata 199.
In case of A. Chidanand vs. Smt. Lalita B.Nayak AIR 2006 Karnataka 128
It has been pounded by the Karnataka high court that the property of minor can be transferred in the following two conditions by natural guardian (mother) in the capacity of head (Karta) of family:
1. For necessity of family, and
2. for replaying of previous debts
In case of M. Harish vs. Kumari Sandhu AIR 2012 Karnataka 1
It has been held by the Karnataka High Court that the share of minor member in the property of Joint Hindu family can be sold or disposed by head (Karta) of family legally required for growth of family for repayment of incurred debt. Such sell or disposal without permission of court will be binding on parties (Members of family).
In case of S.P. Metti vs. M.L. Savarkar AIR 2006 NOC 608 Mumbai
It has been held by the Mumbai High Court that the transfer of property of minor by natural guardian mother without permission of court will be ab initio void.
Sansadiya vs. Sarojini AIR 1990 NOC 138 Kerala
It has been that if undivided interest of minor in the property of Joint Hindu family is sold by the natural guardian, then the prior permission of the court shall not be required.
2. Lease of the property: Section 8(2) (b) of the act lays down that any natural guardian cannot lease the immovable property of minor more than 5 years or not more than one year after the minor attains the majority.
3. Right to contract: The guardian may contract for the minor, but cannot enter into a contract which makes the minor personally liable. A contract for purchase of property for the minor can be made by natural guardian and such contract can be specifically enforced.
Minor cannot be guardian of another minor: section 10 of the act clearly provides that no minor can be the guardian of property of another minor.
Powers of testamentary guardian:
A testamentary guardian shall have all the powers regarding the body and property of minor which are possessed by a natural guardian. Their powers and rights cannot be reduced or restricted section 9(5).
In case of M. Madav Rao vs. Yaadgiri AIR 2001 Andhra Pradesh 407
It has been held by the Andhra Pradesh High court that mother of a minor cannot claim for partition of property of joint Hindu family in the capacity of testamentary guardian.
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge