Source: Allahabad High Court

Why in News?

The bench of Justice Ashutosh Srivastava held that adult head of a Hindu family does not require permission of court to dispose an undivided interest of Hindu minor.

• The Allahabad High Court gave this observation in the case of Smt Preeti Arora v. Subhash Chandra Arora and Another.

What is the Background of Smt Preeti Arora v. Subhash Chandra Arora and Another Case?

• The plaintiff/appellant was a widow whose husband passed away, leaving her with three daughters and his mother.
• The plaintiff/appellant inherited a 70% share in a property after her husband's death, with the remaining 30% belonging to her three minor daughters.
• The plaintiff/appellant sought permission under Section 8 of the Hindu Minority and Guardianship Act, 1956 (HMGA) to sell the property for the betterment of her minor daughters' future.
• The trial court rejected the plaintiff/appellant's application for permission to sell the property, citing reasons including the possibility of letting out the property for rental income.
• Both parties, including the defendants/respondents, have consented to the sale of the property.
• The plaintiff/appellant has disclosed her intentions to sell the property and settle in Punjab, where she is currently working, for the betterment of her daughters' education and future.

What were the Court’s Observations?

• The court found that the application (4-B) filed by the plaintiff/appellant under Section 8 of the HMGA was wrongly rejected by the lower court.
• The court pointed out that the trial court's rejection of the application was based on incorrect grounds, such as the lack of disclosure regarding the property the appellant would purchase in Punjab and the possibility of letting out the property for rental income.
• The court emphasizes that Section 8 of the HMGA does not apply when disposing of a minor's undivided interest in joint family property, as per Sections 6 and 12 of the HMGA.
• Therefore, the court set aside the impugned order passed by the Additional District Judge, Saharanpur, and allowed the appeal.

What is Section 8 of the Hindu Minority and Guardianship Act, 1956?

• Authority for Beneficial Acts:
  • The natural guardian of a Hindu minor possesses the authority, subject to the provisions of this section, to perform all acts necessary or reasonable for the minor's benefit or the protection and realization of the minor's estate. However, personal covenants cannot bind the minor.
• Restrictions on Property Transactions:
  • Sub-section 2 states that without prior court permission, the natural guardian shall refrain from:
    • Mortgage, charge, or transfer by sale, gift, exchange, or otherwise, any part of the minor's immovable property.
    • Leasing any part of such property for a term exceeding five years or beyond the minor's attainment of majority by more than one year.
• Voidability of Unauthorized Disposal:
  • Any disposal of immovable property by a natural guardian in contravention of subsections (1) or (2) is voidable at the instance of the minor or any person claiming under them.
• Court Permission for Acts:
  • Court permission for the acts mentioned in subsection (2) shall only be granted in cases of necessity or evident advantage to the minor.
• Application of Guardians and Wards Act, 1890:
  • The provisions of the Guardians and Wards Act, 1890, shall apply to obtaining court permission under subsection (2) as if it were an application under section 29 of that Act. This includes:
    • Deeming proceedings as under the Guardians and Wards Act.
    • Observance of procedure and powers specified in subsections (2), (3), and (4) of section 31 of that Act.
    • The right to appeal from a court's refusal of permission to the natural guardian.
• Jurisdiction of Court:
  • The term "court" refers to the city civil court, district court, or a court empowered under Section 4A of the Guardians and Wards Act, 1890, within whose jurisdiction the immovable property subject to the application is situated. If the property lies within multiple jurisdictions, it refers to the court where any portion of the property is located.