Step-Parents and Guardianship: Interpretation under the Hindu Minority and Guardianship Act, 1956

 Introduction

The concept of guardianship is crucial in family law, especially concerning the welfare of minors. The Hindu Minority and Guardianship Act, 1956, is a significant statute that governs the appointment and rights of guardians for Hindu minors. One important question that often arises is whether the terms "father" and "mother" under this Act also include "step-father" and "step-mother." This article explores the legal interpretation of these terms with reference to Section 6 of the Act.

Legal Provision: Section 6 and Its Explanation

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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.

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What are powers and limitations of natural guardian of a Hindu minor ?

S 6 of Hindu Minority and Guardianship Act:- Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;

(c) in the case of a married girl—the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.—In this section, the expressions “father” and “mother” do not include a stepfather and a stepmother.

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Whether mother can validly relinquish portion of joint family property inherited by minor daughter after death of father?

A Karta is the manager of the joint family property. He is

not the guardian of the minor members of the joint family. What

Section 6 of the Act provides is that the natural guardian of a

minor Hindu shall be his guardian for all intents and purposes

except so far as the undivided interest of the minor in the joint

family property is concerned. This would mean that the natural

guardian cannot dispose of the share of the minor in the joint

family property. The reason is that the Karta of the joint family

property is the manager of the property. However, this principle

would not apply when a family settlement is taking place between

the members of the joint family. When such dissolution takes

place and some of the members relinquish their share in favour

of the Karta, it is obvious that the Karta cannot act as the

guardian of that minor whose share is being relinquished in

favour of the Karta. There would be a conflict of interest. In

such an eventuality it would be the mother alone who would be

the natural guardian and, therefore, the document executed by

her cannot be said to be a void document. At best, it was a

voidable document in terms of Section 8 of the Act and should

have been challenged within three years of the plaintiff attaining  majority.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8642 OF 2009

M. ARUMUGAM Vs  AMMANIAMMAL 

Deepak Gupta, J.

Dated: JANUARY 8, 2020.

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Whether Mother Can Alienate Minor Son's Property When She's Not His Natural Guardian?

 In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be

repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.

22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
SECOND APPEAL NO. 650 OF 2003

Rameshwar Babasaheb Paul, Vs  Shivaji  Eknathrao Paul,

CORAM : A. M. DHAVALE, J.

DATED : 21.01.2019.
Citation: AIR 2019 Bom 77

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Whether mother can dispose off undivided interest of minor in joint family property without permission of court?

 The principal question that has arisen in this case is as to whether the mother of the original plaintiffs could have executed the aforesaid sale-deed dated 30.03.1974 in respect of the suit property without seeking permission of the Court as contemplated under Section 8(2) of the aforesaid Act.

But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the Joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered."

12. This position of law has been followed by this Court in the case of Sandhya Rajan Antapurkar and others v. State of Maharashtra (supra), wherein it has been held as follows :-

"7. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father and after him the mother is natural guardian of Hindu minor in respect of minor person as well as in respect of the minor's property. The undivided interest of the minor in joint family property has been specifically excluded by this Section.

8. Section 8 of the Hindu Minority and Guardianship Act, 1956 prevents natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor without previous permission of the Court. This restriction on the natural guardian in relation to the property of the minor applies only to the separate or absolute property of the minor. It does not include the minor's undivided share in the joint family property, as, under Section 6, there cannot be a natural guardian in respect of such property which is specifically excluded."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 582 of 2006

Decided On: 04.05.2018

 Vasantrao Gulabrao Thakre Vs. Sudhakar Wamanrao Hingankar 

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5) MHLJ 121

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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

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Disposal of minor's property for legal necessity by natural guardian whether voidable?

Hindu Minority and Guardianship Act, 1956 - Sections 6 and 8-The necessity for a natural guardian to obtain permission or sanction from the Court before alienating the minor's property will not be attracted so far as the minor's undivided interest in the joint family property is concerned.

Section 8(3) of the Act lays down that 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. When Section 8 does not take within its ambit the minors undivided interest in the joint family property, Section 8(3) would not be applicable.

The recitals of legal necessity in a deed do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstance.

What the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.

The natural guardian of a minor has the necessary competence to deal with even the separate property of the minor. Nonetheless the natural guardian remains a guardian of the minor in other senses also. Natural guardian who has a share in the property along with the minors' undivided interest in the property is legally competent to alienate the property as a whole, either in the capacity of the minor's guardian or as a Manager.

Karnataka High Court

A. Chidananda (Deceased) By L.Rs. ... vs Smt. Lalitha V. Naik And Ors. on 19 January, 2006

Equivalent citations: AIR 2006 Kant 128, 2006 (2) KarLJ 67,2006(3)KCCR1403

Bench: H G Ramesh

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Whether Mother is natural guardian of minor as per guardian and wards Act?

Giving the opinion of the Court, Banerjee J asserted the predominance of the child’s welfare 
in all considerations. He considered the precedent of Gajre v. Pathankhan (1970 2 SCC 717) 
in which, although the father was alive, he was not taking any interest in the affairs of the 
child. In that case the mother was ruled to be the natural guardian of her minor daughter. 
He set out that the Hindu law and the Act held that the father is the natural guardian and 
after him the mother but in the above case, the Court held the opposite.  
The judgment in Gajre v Pathankhan considered that: 
“… a rigid insistence of strict statutory interpretation may not be conducive for the growth of 
the child, and welfare being the predominant criteria, it would be a plain exercise of judicial 
power of interpreting the law so as to be otherwise conducive to a fuller and better 
development and growth of the child.”  
Justice Banerjee noted that the judge in Gajre v. Pathankhan allowed the mother to be the 
natural guardian: 
“… but without expression of any opinion as regards the true and correct interpretation of the 
word ‘after’ or deciding the issue as to the constitutionality of the provision as contained in 
Section 6(a) of the Act of 1956.” 
He felt strongly that a long established law should not easily be set aside; that a key point 
was interpretation of the word “after”; and that: 
“… the word did not necessarily mean after the death of the father, on the contrary, it [means] 
‘in the absence off’ be it temporary or otherwise or total apathy of the father towards the child 
or even inability of the father by reason of ailment or otherwise.” 
He concluded that ascribing the literal meaning to the word ‘after’ cannot arise having due 
regard to the object of the Act and the constitutional guarantee of gender equality, since any 
other interpretation would render the statute void which ought to be avoided. 
SUPREME COURT OF INDIA

Ms Githa Hariharan and another v. Reserve Bank of India and another (AIR 1999, 2 
SCC 228) 
1) Reference Details 
Jurisdiction: Indian Supreme Court 
Date of Decision: 17 February 1999 

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