COMPREHENSIVE CHECKLIST TOOLKIT FOR DISTRICT JUDGE FOR APPOINTMENT OF GUARDIAN OF MINOR FOR WITHDRAWAL OF SERVICE BENEFITS OF THEIR DECEASED FATHER

 Guardianship Appointment & Service Benefits Withdrawal

Minor Child (Deceased Father) - Grandmother Applicant

PART A: PRE-ADMISSION CHECKLIST (SECTION 11 G&W ACT)

A.1 PRELIMINARY SCRUTINY (SECTION 10 G&W ACT)

•             ☐ Petition filed in correct jurisdiction: Application is before District Court having territorial jurisdiction over minor’s ordinary residence

•             ☐ Application in prescribed format: Petition contains all particulars required under Section 10, including:

–            ☐ Full name, age, religion of minor

–            ☐ Full details of deceased father

–            ☐ Status of mother (deceased/incapacitated/unfit)

–            ☐ Description of property/service benefits involved

–            ☐ Qualifications of grandmother-applicant

–            ☐ Causes necessitating guardianship

–            ☐ Affidavit of willingness to act (Form 2)

•             ☐ Court fee properly paid: Verification of appropriate court fee as per Guardianship Rules

•             ☐ Appointment not prohibited: Grandmother is not disqualified under Section 19 (e.g., not a non-believer in religion of minor in Hindu context)

Print Page

Video on Madras High Court judgment protecting Child Welfare and Preventing Misuse of Law

 This video analyzes the landmark judgment delivered by the Madurai Bench of the Madras High Court on November 13, 2025, in CRL RC(MD) No. 1148 of 2024. The judgment highlights critical legal principles on the finality of mutual consent divorce decrees, the doctrine of natural guardianship, and the protection of women's dignity under Article 21 of the Constitution. It firmly rejects the misuse of maintenance provisions as a tool for perpetuating matrimonial discord by family members and emphasizes that child welfare must remain paramount, with co-parenting guided by cooperation rather than confrontation. This analysis is invaluable for judges, advocates, and legal scholars focused on family law and child maintenance jurisprudence.

Print Page

Whether the title over suit property will be transferred if mother of minor who is owner of suit property has put signature on sale deed in her individual capacity?

  Once such evidence was adduced in terms of Section 68 of the Evidence Act, 1872, and the mandatory requirements prescribed Under Section 63 of the Indian Succession Act, 1925, were duly satisfied, the Will stood proved in the eye of law (See H. Venkatachala Iyengar v. B.N. Thimmajamma MANU/SC/0115/1958 : 1958:INSC:98 : AIR 1959 SC 443) and the same ought not to have been brushed aside lightly. As the Will was duly proved to be genuine, the participation of the first Defendant in the execution of the Sale Deed dated 18.01.1979 thereafter paled into insignificance. The owner of the property under the Will was Meghraj, the second Defendant, and he was neither a party to the said sale deed nor did his mother affix her signature therein in the capacity of being his guardian.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9035 of 2013.

Decided On: 29.02.2024

Savitri Bai and Ors. Vs. Savitri Bai

Hon'ble Judges/Coram:

Sanjay Karol and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation:  MANU/SC/0147/2024.

Print Page

Supreme Court: Sale Of Minor's Property By Guardian Can Be Avoided Only By Filing Suit To Set Aside Deed Within Period as mentioned Under Art.60 of Limitation Act

  We may notice one more judgment of this Court

relied on by the learned counsel for the appellants

that is G. Annamalai Pillai vs. District Revenue

Officer and others, (1993) 2 SCC 402. The question

which arose for consideration in the said case has

been noticed in paragraph 1 of the judgment in

following words:

“1. The short question for consideration in

this appeal is whether lease deed in dispute, which

was voidable in terms of Section 8(3) of the Hindu

Minority and Guardianship Act, 1956 (the Act) when

validly avoided, was effective from the date of the

lease deed so as to make the transaction void and

unenforceable from the very inception.” {Para 32}

33. The land in dispute was owned by one Janarthanan.

His father, Purushothaman executed a registered lease

deed in favour of appellant on 12.12.1971 on which

date the owner was minor. The appellant filed

application before Tehsildar to be registered as a

tenant which was contested by Janarthanan.

Janarthanan contended that his father has no right or

title to deal with land and lease by his father is in

contravention of Section 8 of Hindu Minority and

Guardianship Act, 1956. Tehsildar held that there was

no valid lease which order was confirmed by the High

Court against which judgment appeal was filed. In

paragraphs 5 and 6 following has been laid down:

“5. We have heard learned counsel for the

parties. We have been taken through the

orders of the Revenue authorities, judgment

of the learned Single Judge and of the

Division Bench of the High Court in writ

appeal. The Division Bench of the High

Court, in a lucid judgment, answered the

question — posed by us in the beginning —

in the affirmative and against the

appellant-Annamalai Pillai on the following

reasoning:

“We have already seen that clause (3) of

Section 8 of the Hindu Minority and

Guardianship Act, 1956, specifically makes

the transaction voidable. The lease

executed by the guardian in this case is

prohibited and in that sense it was

without any authority. On the legal

efficacy and the distinction between

valid, void and voidable agreements, we

find the following passage in Salmond on

Jurisprudence, Twelfth Edition at page

341:

‘… A valid agreement is one which is

fully operative in accordance with the

intent of the parties. A void agreement

is one which entirely fails to receive

legal recognition or sanction, the

declared will of the parties being

wholly destitute of legal efficacy. A

voidable agreement stands midway

between these two cases. It is not a

nullity, but its operation is

conditional and not absolute. By reason

of some defect in its origin it is

liable to be destroyed or cancelled at

the option of one of the parties to it.

On the exercise of this power the

agreement not only ceases to have any

efficacy, but is deemed to have been

void ab initio. The avoidance of it

relates back to the making of it. The

hypothetical or contingent efficacy

which has hitherto been attributed to

it wholly disappears, as if it had

never existed. In other words, a

voidable agreement is one which is void

or valid at the election of one of the

parties to it.’

This distinction has also been

judicially noticed in the Privy Council

judgment reported in Satgur Prasad v.

Harnarain Das and in the Division Bench

judgment in S.N.R. Sundara Rao and Sons,

Madurai v. CIT. The Division Bench held,

following the said Privy Council judgment as

follows:

‘When a person, who is entitled to

dissent from the alienation, does so, his

dissent is in relation to the transaction

as such and not merely to the possession

of the alienee on the date of such

dissent.

The effect of the evidence is,

therefore, to get rid of the transaction

with the result that in law it is as if

the transaction had never taken place.’

We have, therefore, no doubt that when the

fifth respondent avoided the lease executed

by his father, the fourth respondent, the

lease became void from its inception and no

statutory rights, could, therefore, accrue

in favour of the appellant herein.”

6. We agree with the reasoning and the

conclusions reached by the Division Bench

of the High Court and as such this appeal

has to be dismissed.”

34. Learned counsel for the appellants relying on the

above decision contends that sale by Balaraman when

has been avoided by release deed it became void from

the very beginning. There can be no quarrel to the

proposition laid down in G. Annamalai Pillai vs.

District Revenue Officer and others(supra). In the

present case there having been no repudiation of sale

deed on behalf of minor, the question of voidable

sale deed becoming void does not arise.

35. We are, thus, of the considered opinion that in

the present case it was necessary for the person

claiming through minor to bring an action within a

period of three years from the date of the death of

the minor to get sale deed executed by Balaraman set

aside. We, thus, conclude that the sale deeds

executed by Balaraman were not repudiated or avoided

within the period of limitation as prescribed by law.

Issue No.3 is answered accordingly.

36. In view of the foregoing discussions, we do not

find any merit in this appeal. The appeal is

dismissed accordingly.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1782 OF 2019

MURUGAN & ORS. Vs. KESAVA GOUNDER (DEAD)

THR. LRS. AND ORS.

Author: ASHOK BHUSHAN, J.

Dated: February 25, 2019.

Print Page

Whether the police can register an offence against a child nine year old in respect of accident?

 Central Government Act

Section 83 in The Indian Penal Code

83. Act of a child above seven and under twelve of immature understanding.—Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

 Misconception or ignorance of law is not an excuse, much less, for a police officer and in the peculiar facts, more so, having regard to the fact that the child was only 9 years of age. This action of the police i.e. of registration of FIR, has resulted in traumatizing a 9 year old boy. Despite Section 83 of the Indian Penal Code, the police have proceeded to register the FIR as against the petitioner’s son, a minor aged 9 years, at the behest of the respondent No.3. The action reflects complete non-application of mind by the concerned officer whilst registering the offence. {Para 15}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3062 OF 2022; 

`AK’ Vs State of Maharashtra

Coram: REVATI MOHITE DERE; J., S. M. MODAK, J.

Dated: 20th OCTOBER 2022

Print Page

Whether a father taking away a minor child from the custody of the mother can be held guilty for the offence of kidnapping?

Therefore what we have proved in this case is that the child was in the keeping of his mother who was a lawful guardian within the meaning of Section 361, Indian Penal Code and that the child was taken or enticed away out of her keeping. Section 361 says that "whoever takes or entices...is said to kidnap" and there can be no doubt that the word "whoever" will include P.W. l's husband. But this is not quite sufficient. The exception to Section 361 states as follows:

This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

7. Now, if a person who in good faith believes himself to be entitled to the lawful custody of a child cannot commit an offence under Section 361, Indian Penal Code, it seems to follow a fortiori that a person who is in fact the father of the child, and therefore in law entitled to the lawful custody of the child cannot come within the scope of Section 361, Indian Penal Code. In this case it can be said on behalf of the first accused that he did not merely in good faith believe himself to be entitled to the lawful custody of his child, but that he was beyond the possibility of any challenge entitled to the lawful custody of the child, and that therefore his act in taking the child from the keeping of his mother could not amount to an offence of kidnapping from lawful guardianship.

I am fortified in this opinion by the reasoning of Rankin, C.J., in the case in Saharali Mohammad v. Kamizuddin Mahammad (1930) I.L.R. 58 Cal. 897. The learned Chief Justice quoted with approval the decision in Emperor v. Sital Prasad (1919) I.L.R. 42 All. 146 as authority for the proposition that:

The explanation to Section 361 cannot be used* to mean that, as against a person, who, in fact, is the civil guardian of the minor, mere de facto guardianship can be set up so as to convict the real civil guardian of an offence under Section 361.
Madras High Court

In Re: Kanneganti Chowdarayya And ... vs Unknown on 22 February, 1938

Equivalent citations: (1938) 1 MLJ 670

Author: Burn

Print Page

Bombay HC: Sale of immovable property of minor child by de facto guardian is void

In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, notwithstanding the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of section 8.

17. The present case is squarely covered by the above judgment in the facts of the present case.

18. In Vishwambhar and others v. Laxminarayana MANU/SC/0374/2001 : AIR 2001 SC 2607, there was alienation of minors property by mother as guardian and the suit was filed by minor for recovery of possession from the purchaser. It was held that, the sales made by guardian were ab initio void and liable to be ignored. It was held that, the suit should have been for setting aside the sales. There was no such prayer initially and the plaint was amended but the amendment was barred by limitation of three years from the date of sale deed. In this case also, the father Dattatraya died and the minors were in care and custody of their widowed mother. She was managing the properties left by Dattatraya as guardians of the minors. She executed sale deeds in 1967. The declaration for setting aside the sale deed would be necessary if the sale deed is executed by natural guardian which would be voidable u/s 8. Such prayer will not be necessary if the sale is effected by de facto guardian. It is governed by Section 11 which declares the sale as void.

19. In this regard, I rely on Madhegowda v. Ankegowda MANU/SC/0739/2001 : AIR 2002 SC 215. In this case, the original owner Ninjegowda died leaving behind two daughters Sakamma and Madamma. While Sakamma was minor, Madamma acting as guardian sold her share by registered sale deed to Madhegowda on 24.04.1961. It was sold for collecting funds for marriage of Sakamma. The appellant was also put in possession of the property. Sakamma after attaining majority sold her share of the property to Ankegowda, predecessor of respondent nos. 1 to 9 therein, by a registered Sale Deed dated 1.7.1967. In the light of these facts, relying on Section 11 prohibiting de facto guardian from alienating the property of minor, it was held that,

"Section 11 had done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee would not acquire any title to the property.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 650 of 2003

Decided On: 21.01.2019

Rameshwar Vs.   Shivaji and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(5) MHLJ 945

Print Page

Whether it can be presumed that guardian was negligent if suit was proceeded exparte against minor?

 However the position may be different in a case where the fraud or negligence is alleged against the guardian. What amounts to negligence must depend on the facts of each case. What has to be considered is whether by reason of the conduct of the guardian the minor has been prejudiced and lost a valuable right. It was held by this court in Gangadharan v. Narayanan (MANU/KE/0058/1959 : AIR 1959 Kerala 169), that the mere fact that the guardian remained ex parte is not sufficient to establish negligence. It must further be shown that there was a real defence to the action. Once it is held that the minor was represented by the Guardian/mother and had become ex parte, and it is found that there is negligence on the part of the mother in prosecuting the case, the question is whether such a decree against the minor requires to be set aside. As already indicated, Order XXXII Rule 3A clearly indicates that no decree passed against a minor shall be set aside merely on the ground that the Guardian had an interest in the subject matter of the suit whereas it has to be shown that prejudice has been caused to the interest of the minor. Though in the case on hand, guardian ad litem has not been appointed by the Court, the mother represented the minor and had appeared, contested and filed objection on her behalf and on behalf of the minor, opposing the claim of the petitioner in the case. She had no interest adverse to that of the minor. But she did not prosecute the case and remained ex parte. She did not take any steps to set aside the ex parte decree on behalf of the minor within a reasonable period. Materials placed on record would show that the petitioner does not have a valid defence in that case especially in the light of the DNA report. What purpose will be served in reopening the matter is also not explained. Under such circumstances, we are of the view that condoning the delay of such a long period and setting aside the ex parte decree was unwarranted.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 540 of 2016 (R)

Decided On: 31.03.2017

Abdul Salam Vs. Chalil Sajitha and Ors.

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

Citation: AIR 2017 Kerala 151

Print Page

Whether prejudice will be caused to minor child if his father is not appointed as his guardian?

In the present case, what has happened is that an application for appointment of a guardian was filed in I. A. 242 of 1958 supported by an affidavit-Ex. A-3, The third defendant who was the natural father of the plaintiff was proposed as guardian and the affidavit in support of the application contained an averment that Ramaswami, the natural father, has no adverse interest against the minor and that he was a proper person to be appointed as guardian. The affidavit also contained an averment that in case Ramasami was not willing to act as guardian, a Court guardian may be appointed. The court issued notice on 28-2-1958 on the application and the application was posted to 3-3-1958. Ramaswami, the natural father was served with notice. The application was called on 3-3-1958 and Ramaswami expressed his willingness to be the guardian, Krishnammal, that is, the adoptive mother, also appeared on that day and expressed her willingness to be the guardian and Krishnammal would appear to have filed a vakalat also, dt. 3-3-1958 (Ex. A-2). It may be noted that although Krishnammal's name was not mentioned in the affidavit filed in support of the application, she appeared in Court and expressed her willingness to be appointed as guardian and in fact filed a vakalat representing as guardian. Ramamsami who had no interest adverse to that of the adopted son represented his son in the further proceedings and he filed an appeal against the preliminary decree on his behalf and as guardian of his son and in the second appeal in the High Court he represented the minor's interest. He put forward the adoption of the minor in the above proceedings and no contention was put forward by him contrary to the minor's interest. In the above circumstances, it cannot be said that any prejudice has been caused to the minor on account of the formal defect in not passing a formal order appointing him as guardian ad litem to the minor. A Full Bench of the Patna High Court in Ram Asray v. Sheonandan, AIR 1916 Pat 267 , held that where in a suit any application of guardian ad litem is made and the guardian nominated in the application is allowed to represent the minor at the trial, a mere omission to make a formal order of appointment as guardian is not fatal to the suit. In Nirmal Chandra v. Khandu Ghose MANU/WB/0115/1965 : AIR1965Cal562 a similar view was taken. Banerjee, J. observes as follows:

"The doctrine of substantial representation is a matter of substance and not of form. Where a minor who was effectively represented in a suit by a guardian although not formally appointed, suffers no prejudice on account of the informality, the absence of a formal order of appointment of a guardian is not fatal to the suit. In this view I find support from the following observations of the Privy Council in (1903) 30 Ind App 182 ."
10. Following the above decisions, I am of opinion that the minor's interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, and that there has been a substantial representation of the minor in the former suit.
IN THE HIGH COURT OF MADRAS

Second Appeal No. 1153 of 1968

Decided On: 04.02.1972

 Rangammal Vs. Minor Appasami and Ors.

Hon'ble Judges/Coram:
Raghavan, J.
Citation:AIR 1973 Madras 12

Print Page

What is doctrine of substantial representation?

In the present case, what has happened is that an application for appointment of a guardian was filed in I. A. 242 of 1958 supported by an affidavit-Ex. A-3, The third defendant who was the natural father of the plaintiff was proposed as guardian and the affidavit in support of the application contained an averment that Ramaswami, the natural father, has no adverse interest against the minor and that he was a proper person to be appointed as guardian. The affidavit also contained an averment that in case Ramasami was not willing to act as guardian, a Court guardian may be appointed. The court issued notice on 28-2-1958 on the application and the application was posted to 3-3-1958. Ramaswami, the natural father was served with notice. The application was called on 3-3-1958 and Ramaswami expressed his willingness to be the guardian, Krishnammal, that is, the adoptive mother, also appeared on that day and expressed her willingness to be the guardian and Krishnammal would appear to have filed a vakalat also, dt. 3-3-1958 (Ex. A-2). It may be noted that although Krishnammal's name was not mentioned in the affidavit filed in support of the application, she appeared in Court and expressed her willingness to be appointed as guardian and in fact filed a vakalat representing as guardian. Ramamsami who had no interest adverse to that of the adopted son represented his son in the further proceedings and he filed an appeal against the preliminary decree on his behalf and as guardian of his son and in the second appeal in the High Court he represented the minor's interest. He put forward the adoption of the minor in the above proceedings and no contention was put forward by him contrary to the minor's interest. In the above circumstances, it cannot be said that any prejudice has been caused to the minor on account of the formal defect in not passing a formal order appointing him as guardian ad litem to the minor. A Full Bench of the Patna High Court in Ram Asray v. Sheonandan, AIR 1916 Pat 267 , held that where in a suit any application of guardian ad litem is made and the guardian nominated in the application is allowed to represent the minor at the trial, a mere omission to make a formal order of appointment as guardian is not fatal to the suit. In Nirmal Chandra v. Khandu Ghose MANU/WB/0115/1965 : AIR1965Cal562 a similar view was taken. Banerjee, J. observes as follows:

"The doctrine of substantial representation is a matter of substance and not of form. Where a minor who was effectively represented in a suit by a guardian although not formally appointed, suffers no prejudice on account of the informality, the absence of a formal order of appointment of a guardian is not fatal to the suit. In this view I find support from the following observations of the Privy Council in (1903) 30 Ind App 182 ."
10. Following the above decisions, I am of opinion that the minor's interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, and that there has been a substantial representation of the minor in the former suit.
IN THE HIGH COURT OF MADRAS

Second Appeal No. 1153 of 1968

Decided On: 04.02.1972

 Rangammal Vs. Minor Appasami and Ors.

Hon'ble Judges/Coram:
Raghavan, J.
Citation:AIR 1973 Madras 12

Print Page

Whether court can presume that prejudice was caused to minor child if she was not properly represented in suit?

The correct view, I think, is that no irregularity by way of an omission to send a notice as required by Order 32, Rule 3 shall operate to render void the presumed representation of the minors in a suit, unless such an omission has in fact prejudiced their defence, and such prejudice is not a matter of assumption or presumption but of proof see Suresh Chunder Waru Choudhry v. Jugut Chunder Pal [1887] 14 Cal. 204, Bhagwan Dayal v. Param Sukh Das [1915] 37 All. 179, and in this Court the case reported in Nachiappa Chetti v. Chinniah Ambalan MANU/TN/0534/1916 : [1916] 4 L.W. 362 and particularly in Ramaswami Chetti v. Doraiswami 1923 Mad. 465. The ratio decidendi in Maruthamalai v. Palani [1913] 37 Mad. 235 is to the same effect. It is clear then that the lower Courts were not justified in setting aside the decree in O.S. No. 274 of 1917 without first considering the question whether in fact the minors had been prejudiced in their defence.

IN THE HIGH COURT OF MADRAS

Decided On: 06.02.1924

 K. Tirumalacharyulu alias Ramanujacharyulu and Ors.

Vs.

Ammisetti Venkiah and Ors.

Hon'ble Judges/Coram:

Wallace, J.

Citation:AIR 1924 Madras 763

Print Page

Whether decree against minor will be nullity if his guardian is not appointed by court?

Mr. Raghunathan drew my attention to Order 32, Rule 3 of the Code, which requires the Court to appoint a, proper person to be a guardian for the minor in a suit. Learned counsel pointed out that the mother in this case was not appointed by order of Court. I do not think this circumstance makes for any difference to my conclusion. Although the Court did not appoint the mother as guardian, it cannot be gainsaid that she is minor's legal guardian. It has been held that where the natural or legal guardian represents the minor a suit, the mere absence of a formal Court order appointing him or her as guardian ad litem will not vitiate the decree against the minor. See Rangammal v. Minor Appasami, MANU/TN/0227/1973 : AIR1973Mad12 . Raghavan J. in that case held that the decree passed against a minor in such a case is not a nullity.{PARA 7}

IN THE HIGH COURT OF MADRAS

Civil Revn. Petn. No. 1102 of 1977

Decided On: 18.03.1980

Saradamani Vs. Rajendran

Hon'ble Judges/Coram:

Balasubrahmanyan, J.

Citation:AIR 1981 Madras 217

Print Page

Whether exparte decree passed against minor can be set aside if he was represented by guardian?

The benefit of Sec. 6, in the normal circumstances, will apply only for filing of a suit or for the purpose of filing an application for execution. It cannot be extended to an application to set aside an ex parte decree when the minor is represented by the guardian. Even, in the case on hand, the applications are filed by the 1st respondent on behalf of the 2nd respondent, the minor. Order XXXII Rule 3A of the Code of Civil Procedure which was inserted by the 1976th amendment reads as under:

"3-A. Decree against minor not to be set aside unless prejudice has been caused to his interests.-(1) No decree passed against minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be ground for setting aside the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interest of the minor."

15. The above provision clearly indicates that a decree passed against the minor shall not be set aside merely on the reason that next friend or guardian for the suit of minor had an interest in the subject matter of the suit adverse to that of the minor. It is further to be proved that such adverse interest has caused prejudice to the interest of the minor.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 540 of 2016 (R)

Decided On: 31.03.2017

Abdul Salam Vs. Chalil Sajitha and Ors.

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

Citation: AIR 2017 Kerala 151

Print Page

Whether bar of limitation is applicable to minor child?

Then the only question to be considered is whether the bar of limitation will apply to a minor. Law of limitation applies to a minor as well unless a specific provision is available under the Limitation Act, prescribing any exemption as far as a minor is concerned. Section 6 of the Limitation Act, contemplates that where a person entitled to institute a suit or make an application for the execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified for the same in the third column of the Schedule. It is held in M.P. Steel Corpn. v. CCE, [MANU/SC/0484/2015 : (2015) 7 SCC 58] that Sec. 6 of the Limitation Act, 1963 is a pointer to the fact that courts always lean in favour of advancing the cause of justice where a clear case is made out for so doing.

14. In the objection filed to O.P. No. 403/2004, the 1st respondent had signed on behalf of the minor as guardian. Sec. 6(1) and the explanation of the Limitation Act reads as under:

"6. Legal disability - (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceases, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule."

"Explanation - For the purposes of this section 'minor' includes a child in the womb."

The benefit of Sec. 6, in the normal circumstances, will apply only for filing of a suit or for the purpose of filing an application for execution. It cannot be extended to an application to set aside an ex parte decree when the minor is represented by the guardian.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 540 of 2016 (R)

Decided On: 31.03.2017

Abdul Salam Vs. Chalil Sajitha and Ors.

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

Citation: AIR 2017 Kerala 151

Print Page

Whether court should rely on birth certificate even if its authenticity is not proved?

In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.

15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors., AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.

16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeachcable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. (Vide: Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282; Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796; Vishnu Vs. State of Maharashtra (2006) 1 SCC 283; and Satpal Singh Vs. State of Haryana JT 2010 (7) SC 500).

18. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein. (Vide: Updesh Kumar & Ors. Vs. Prithvi Singh & Ors., (2001) 2 SCC 524; and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868)."

Madhya Pradesh High Court

Rameshchandra & Ors. vs Kailash & Ors. on 14 September, 2017

Print Page

When muslim mother can accept gift on behalf of minor child?

A conjoint reading of Sections 155 with that of Section 359 goes to show that while the general rule is that a donor must divest himself of all the control of the property which is the subject matter of the gift. Delivery of possession has, therefore, got to be a concomitant of the gift. But, when a father gifts property to his child, the position is peculiar. While it is true that law does not find anything wrong for the father to gift his property to his child, the difficulty arises from a twofold position. Firstly, a minor may not be physically able to be in possession of the property except through his guardian and, secondly the father is himself the guardian of the property of his minor child. Delivery of possession by a Mahomedan father to his minor child is, for all practical purposes, delivery by right hand to the left hand. This is evidently the reason why the strict requirement of delivery of possession is not strictly insisted upon in the case of a bona fide gift by the father to his minor child. In a sense the requirement continues, but it is fulfilled in a somewhat different manner. Upto the date of the gift, the father is in possession of the relevant property on his own behalf and on and from the date of the gift he is in possession of the same, but only on behalf of the minor. Therefore, in view of the above provisions of law and the decision cited supra, in the instant case, delivery of possession by father to minor is for all practicable purposes, delivery by right hand to left hand.

50. The law intends to make a gift valid and legal as far as possible so as to give full justice to the desire of the donor. Where there was no other guardian of the property or person of the minor and the mother was the only other person who could look after the interest of the minor, acceptance of the gift by the mother was not illegal or invalid. In such cases, the benefit to the minor and the completion of the gift for his benefit was, the sole consideration.

51. The decisions referred to by the learned counsel appearing for the appellant are relating to gift by the person other than the father or a legal guardian, which falls under Sections 156 and not under 155 of the Principles of Mahomedan Law. In case of gift, which falls under Section 155 and on a combined reading of Sections 155 and 359 of the Principles of Mahomedan Law, this Court is of the considered view that when a father, who has been given the first preference to act as a guardian, himself has become the donor in respect of the property to his minor son. In such cases, where an exemption given under Section 155, the mother can accept on behalf of the minor son. In this view of the matter, the findings of the Trial Court are valid.

In the High Court of Madras

(Before RMT. Teekaa Raman, J.)

Shamshed Begum .v. Sadiq Basha

Decided on December 22, 2016, 

Citation: 2016 SCC OnLine Mad 16883,
 AIR 2017(NOC)1042 Madras.

Print Page

Whether minor driving motor cycle without licence is entitled to get compensation in case of accident?

 Heard the learned advocates appearing on behalf of
the respective parties at length. At the outset, it is required to
be noted that in a vehicular accident between the Motorcycle
No.GJ 2 AA 5546, which at the relevant time was being driven
by the original injured claimant-minor and one Jeep No.GJ 2 R
3829, driver of the Motorcycle-original injured claimant
sustained permanent partial disability to the extent of 7%. It
is also required to be noted that as such on appreciation of
evidence, the learned tribunal has held the driver of the Jeep
involved in the accident sole negligent in the accident. Under
the circumstances and normally once the driver of the
offending vehicle is held to be sole negligent for the accident
the original claimant is entitled to the compensation from the
driver-owner and the Insurer of the vehicle whose driver is held
to be sole negligent. As per settled proposition of law only that
much amount is required to be deducted and / or original
claimant is not entitled to the extent he is held contributory
negligent for the accident. However, in the present case, the
learned tribunal has deducted 70% i.e. 10% towards
negligence of the minor injured claimant and 60% towards
negligence of the father-owner of the Motorcycle permitting his
minor son to drive the Motorcycle though he was not holding
valid license to drive the Motorcycle. On the aforesaid ground
no amount of compensation could have been deducted and / or
denied to the original claimant, more particularly, when so far
as the accident is concerned the original injured claimant is
not held negligent / contributory negligent at all. 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2029 of 2008

MINOR SHAKTISINH ZALA.
V
ZALA RANVIRSINH RANUBHA & 4.
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 25/02/2016
Citation:2016(6) ALLMR(JOURNAL)7

Print Page

Whether minor girl can be sent to Nari Niketan against her wish?

The issue whether a minor, can be sent to Nari Niketan against her wish, is no longer resintegra and stands conclusively settled by a catena of decisions of this Court. In the case of Smt. Kalyani Chowdhary Versus State of U. P. reported in 1978 Cr. L. J. 1003 (D.B.), a Division Bench of this Court has taken the view that : 
"No person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home." 
In the case of Pushpa Devi Versus State of U. P. and others reported in 1994 HVVD (All) C. R. Vol. II page 259 a Division Bench of this Court has enunciated the same principle as hereunder: 
"In any event, the question of age is not very material in the petitions of the nature of habeas corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of the minor against her will, unless there is some other reason for it. 
ALLAHABAD HIGH COURT
HABEAS CORPUS WRIT PETITION No. - 47442 of 2015 

Rahul Kumar Singh And Another V State Of U.P. And 4 Others 
Coram:
Hon'ble Bala Krishna Narayana,J. 
Hon'ble Mrs. Vijay Lakshmi,J. 
Citation;2016 CRLJ(NOC)56 ALL

Print Page

Whether minor child can file motor accident claim petition after delay of 15 to 16 years?

It is certainly on the record that the accident has taken

place on 22.8.1983, the death of the deceased took place on

12.10.1983 and the claim petition has been filed on 20.9.1999

after a period of almost 15-16 years and there is a stand of the

claimant that he was minor at the time of the accident and on

attaining age of discretion after coming to know of it has

instituted the claim petition and, though, in view of the settled

position of law as laid down in Dhanna Lal vs. D.P. Vijayvargiya

1996 Volume (3) PLR 656 with the coming into force of the new

Act in 1988 and that the accident had taken place during the

operation of the old Act certainly limitation cannot bar filing of the

claim petition, especially, in the light of the welfare nature of the

Statute. In view of the provisions enshrined in Section 6 of the

Limitation Act, 1963 the claimant certainly can seek such a

remedy after he attains majority on 24.8.1998 as per his own

statement as AW1 by way of school certificate Ex.A1. He was two

and a half years of age at the time of this accident and this legal

handicap of minority ceases to operate. More so, as has been

argued by Mr. Gill neither this objection was taken before the

Tribunal nor issue was framed qua it. Thus, there is no legitimate

bar for the claimant to have sought such a relief.

IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH

FAO No.142 of 2005

 Date of Decision:09.05.2014

Nitin Wasil  V Parkash and others

CORAM:HON'BLE MR. JUSTICE FATEH DEEP SINGH

Citation;2016(1)ALLMR(JOURNAL)39

Print Page

What is distinction between visitation rights and custody right of one spouse over minor child?

By Judgment dated 02/08/2014, passed by this Court (Coram F. M. Reis, J.), in Writ Petition No. 79 of 2014, it was ordered that custody of the child would continue with the petitioner therein i.e. the petitioner herein, but the respondent being the mother would definitely have frequent visitation rights of minor child, which shall tentatively be for at least three days in a week. "Frequent" means occurring often or in close succession. Frequent cannot mean continuous.

The learned trial Court, however, by impugned order has fixed Saturday, Sunday and Monday of every week as the days for visitation of child by respondent but has further directed that the child shall be brought in the Court on every Saturday at 9.30 a.m. and handed over to the respondent, to remain with her till Monday and that she shall return the child in the court every Monday at 5.00 p.m. to the petitioner. The above means that the respondent is not allowed to visit the child as per the order of this Court but the child has been ordered to be handed over to the respondent to remain exclusively with her for three days between 9.30 a.m. of every Saturday to 5.00. p.m. of every Monday. Thus, though this Court by order dated 02/08/2014 ordered that the custody of child shall continue with the petitioner, however, on account of the impugned order, the custody of the child would remain with the petitioner only from 5.00 p.m. of every Monday till 4.00 p.m. of every Saturday, i.e. for four days.

 In other words, contrary to the order dated 02/08/2014 passed by this Court in Writ Petition No. 79 of 2014, and overreaching the said order, the impugned order has been made by the trial Court for sharing custody of child between respondent and petitioner i.e. three days custody to the respondent and four days custody to the petitioner. This is clearly illegal and hence impugned order dated 06/09/2014, warrants interference.

In terms of Black's Law Dictionary, Tenth Edition, visitation means a non-custodial parent's period of access to a child. visitation right means a non-custodial parent's or grandparent's Court ordered privilege of spending time with a child or grand child who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 576 of 2014

Decided On: 18.09.2014

Appellants: Arun Sharma Vs.

Roxann Sharma

Hon'ble Judges/Coram:
U.V. Bakre, J.
Citation;2015(2) ALLMR978 SC

Print Page