This article is written by Gauri Gupta. It aims to provide an in-depth analysis of Section 12 of the Hindu Minority and Guardianship Act, 1956. The article highlights the basics of the Hindu Minority and Guardianship Act, 1956, followed by an understanding of when a minor has an undivided interest in joint Hindu family property.  

Introduction 

The concept of guardianship is relatively modern. The Hindu Dharmashastras provided for the concept of joint Hindu families where parents were responsible for looking after their child and ensuring the safety of their bodily integrity and personal interest in the property. It was in 1956 that the Government of India enacted the Hindu Minority and Guardianship Act, 1956 to regulate matters pertaining to guardianship and custody of minor Hindu children. The Act extends to Indian territory and applies to Hindus domiciled within the boundaries of India, including Parsis, Jains, and Buddhists. Section 12 of the Hindu Minority and Guardianship Act, 1956 saves the inherent jurisdiction of the High Court to appoint the guardian of the minor’s interest in joint family property. It provides for appointing guardians in cases where joint family property is under the management of an adult. 

The article provides a historical background, explains the evolution of the concept and explains the different schools of law. Furthermore, it articulates the difference between guardianship and custody and elaborates on the ingredients of Section 12 of the Act with relevant case studies. 

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Historical background

The concept of guardianship has its roots in the holy scriptures, including the Hindu Shastras and the Quran. The rationale behind the concept is to protect the welfare of children. In India, various legislations have governed the concept of guardianship, including the Guardianship and Wards Act of 1890, the Hindu Minority and Guardianship Act of 1956 and various personal religious laws.

The concept of guardianship has always been associated with patriarchy, where the father is the sole guardian of the household, the property and his children. Females, especially mothers, did not enjoy independent legal status over the property or their children. In other words, due to the familial patriarchal structure in the Vedic scriptures along with the power of the Karta of the Joint Hindu family, the concept of guardianship had little relevance. 

However, during the colonial era, the courts started recognising the necessity of ensuring that mothers have legal status over their children and thus drew authority from MacNaghten and M/s Strange and formulated a list of guardians. This list included the father, mother, and elder brother, among other paternal and maternal relations, as the guardians of the child.

In an effort to modernise the Hindu legal tradition, three Hindu Bills were introduced during the leadership of Pandit Jawaharlal Nehru. These Bills, when enacted, came to be known as the Hindu Minority and Guardianship Act, 1956 (“Act”); the Hindu Succession Act, 1956 and the Hindu Marriage Act, 1955. The former was introduced to enhance the Guardians and Wards Act, 1890, which was introduced during the colonial era. 

Schools of Hindu Law

There are two schools of law governing Hindus: the Mitakshara law school and the Dayabhaga law school. 

Mitakshara school of law

The term “Mitakshara” is derived from the Yajnavalkya Smriti, authored by Vijnaneswara. It is observed in all parts of India and is subdivided into the Benaras, Mithala, Maharashtra and Dravida schools. As per this school, a son acquires interest in the ancestral property of the joint family by virtue of his birth. All the members of a Hindu family enjoy coparcenary rights during the lifetime of the father. The share is neither defined precisely nor can it be disposed of. Furthermore, as per the Mitakshara School, a wife cannot demand partition but has the right to a share in any partition that takes place between her husband and sons.

Dayabhaga school of law

Observed in the states of Bengal and Assan, Dayabhaga is derived from the text authored by Jimutavahana. As per this school of law, the son does not automatically acquire  a right in the ancestral property but acquires it upon the death of his father. Furthermore, sons do not enjoy coparcenary rights during the lifetime of their father. Their share is defined and can be disposed of. Wives cannot demand a partition since the father is the absolute owner of the property. 

Difference between guardianship and custody

Guardianship and custody are two important concepts of any matrimonial relationship. Although used interchangeably, they are two different concepts and assume great significance in day to day lives.

The term “guardianship” exists at law, whereas “custody” is granted as a matrimonial relief to a parent who seeks such custody of their child. It is pertinent to note that a guardian need not be a custodian, or a guardian of a child. Guardianship is a more comprehensive term and connotes wider rights than mere custody,

Applicability of Hindu Minority and Guardianship Act, 1956

Section 3 of Hindu Minority and Guardianship Act, 1956 applies to the following individuals within the territory of India:

  • Any person who is a Hindu by religion or is any of its forms or developments, including the Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
  • Any person who is a Jain, Buddhist, or Sikh by religion.
  • Any child of a Hindu, Budhhist, Jain or Sikh.
  • Legitimate or illegitimate child of Hindus, Buddhists, Jains, or Sikhs who are governed by the Act.
  • Any person whose parents are Buddhists, Hindus, Jains ,or Sikhs by religion.
  • Any child, legitimate or illegitimate, one of whose parents is a Hindu, Jain, Sikh, or Buddhist by religion and is brought up as a member of the tribe, family, group or community belonging to such parent.

The provisions of the Act apply to any person who is domiciled within the territory of India and is not a Muslim, Christian, Parsi or Jew by religion.

Definition of key terms under the Hindu Minority and Guardianship Act, 1956

Minor

Section 4(a) of Hindu Minority and Guardianship Act, 1956 provides that a minor is defined as an individual who has not completed 18 years of age.

Guardian

Section 4(b) of Hindu Minority and Guardianship Act, 1956 defines a guardian as a person who has completed 18 years of age and is taking proper and complete care of the minor, his property or both. It includes the natural guardian, the guardian appointed by the will of the minors’ father or mother, a guardian declared by the court, and any person empowered to act as the guardian relating to any court of wards.

Natural guardians

Section 6 of Hindu Minority and Guardianship Act, 1956 provides for those who are entitled to be the natural guardian in respect of a Hindu minor as well as his/ her property. This excludes the undivided interest of the minor in a joint family.

  • The natural guardian of a Hindu boy and an unmarried girl will be their father, and after the death of the father, their mother.
  • The custody of a Hindu minor will ordinarily be with the mother if he/ she has not completed 5 years of age. This implies that their natural guardian will be their mother. 
  • If the minor is an illegitimate boy or an illegitimate unmarried girl, then their mother will be their natural guardian, and after the death of the mother, their father.
  • The husband will be the natural guardian of a Hindu married girl.

Furthermore, the provisions of the Act will not be applicable if the person ceases to be a Hindu or the guardian has renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi.)

It is pertinent to note that the expressions father and mother do not include a stepfather and a stepmother. 

In the case of Arun Kumar vs. Chandrawati Agrwal (1978), the Allahabad High court observed that Section 6 of the Act excludes a Hindu minor who has a natural guardian as provided for under the Act for his undivided interest in joint family property. Therefore, this excludes a natural guardian as provided for under the Act for permission of the court to alienate the property of the minor. This implies that, as per Hindu law, a father or a natural guardian can alienate the minor’s interests in coparcenary property, subject to conditions including legal necessity, benefit of the estate, indispensable duty, etc.

Rights and liabilities of a natural guardian

Section 8 of Hindu Minority and Guardianship Act, 1956 provides for the following powers of the natural guardian:

  • The guardian can take all the necessary and reasonable steps for the benefit of the minor or his/ her estate. However, the guardian is not empowered to bind the minor by personal covenant.
  • The guardian cannot mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange or otherwise without the permission of the court.
  • The guardian is not empowered to lease the immovable property of the minor for a period of more than 5 years or where the lease ends one year after the minor attains majority.
  • The court does not empower the guardian to sell the immovable property of the minor unless the same is necessary for the benefit of the minor.

In the case of Manik Chandra vs. Rani Chadra (1981), the Supreme court of India observed that the terms “necessity” and “advantage” of a minor have a wide connotation and the courts are empowered to widen their scope depending upon the facts and circumstances of the case.

Furthermore, in the case of Vishwambhar & Ors vs. Laxminarayan (2001), the Supreme court held that selling a minor’s immovable property without obtaining prior permission from the court is voidable at the instance of the minor or any other person who is claiming the immovable property on behalf of the minor. 

The guardians have certain rights and liabilities, including the right to represent the minor in litigation, receive compensation for the legal expenses incurred by the minor from his/ her property, sue the minor after he attains majority to recover the expenses incurred by him, and refer the matters to arbitration if the same is in the best interest of the minor.

Further, since legally the guardian is a fiduciary, he is personally liable for the minor in case of breach of trust. The guardian is not entitled to any compensation unless the same has been specified in the will of the minor. A guardian does not have the authority to take possession of the minor’s property adversely and has the liability to render all accounts and manage the affairs prudently. 

Section 12 of Hindu Minority and Guardianship Act, 1956

The provision provides that in cases where the minor has an interest in the property of the joint family and such property is under the management of an adult member of the family, a guardian cannot be appointed for the minor with respect to that property. 

Section 12 of the Act has to be read with Section 6. The latter stipulates those who are entitled to be the natural guardian of a minor. 

Section 12 provides for the appointment of a guardian of a minor who has an undivided interest in joint family property which is under the management of an adult. It saves the inherent jurisdiction of the High court to appoint the guardian of a minor’s interest.

In other words, the provision provides that where the undivided interest of the minor is under the management of an adult member of the Hindu joint family, the guardian cannot be appointed with respect to that interest. However, in cases where the property of the minor is not under the management of the adult member, a guardian can be appointed.  The proviso provides that such an appointment can be made only by the High court exercising jurisdiction in the matter. 

Rules of Mitakshara School

Section 12 of the Act is closely confined to the Mitakshara School of Law. This is because the provision uses the expression “an undivided interest”. This implies that the interest of the coparcener is not ascertained and defined, unlike in Dayabhaga school of law, where their share is specified. 

Furthermore, the provision is considered to codify the old Hindu laws This is because the Karta of the joint family is the one with whom the entire management of the joint family property is vested. This includes the interests of the minors. 

Role of the Karta

The Karta of a joint Hindu family has a unique position under Hindu law. The powers of the Karta and the guardian were developed from the principle that if liability is incurred by one on behalf of another in the circumstances where it is justified, then the person on whose behalf the liability was incurred is liable. 

The Karta and the natural guardian could alienate the property for legal necessity and for the benefit of the estate. The only distinction is that the Karta can alienate the property in cases of indispensable duties, while the guardian has no such power. 

Karta’s power of alienation

The power of the Karta and the guardian of a minor is based on certain verses of the Mitakshara School of Law. The general rule laid down by Vijnaneshwara is as follows:

“Therefore, it is settled point that property in the paternal or ancestral estate is by birth, (although) the father has independent power of disposal of effects of other than immovables, for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection, support of family, relief from distress and so forth: but he is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessors; since it is ordained, though immovable or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift or sale should, therefore be made. “‘

Vijnaneshwara recognises certain exceptional cases where joint family property may be alienated. These include apatkale or the time of distress, kutumbarthe or for the sake of the family and dharmarthe or the performance of indispensable duties. 

Legal necessity

The Karta has the power to alienate the joint family property when the same is required for a legal necessity. This has been established by the Privy Council through various decisions.

In the case of Hunoomanpersuad Pandey vs. Mussamat Babooee Munraj Koonweree (1856), Lord Justice Knight Bruce made certain landmark observations that are now observed as the basis of law. He held that under Hindu law, the manager of an infant heir has a limited and qualified power to charge an estate that is not his own. The same can be exercised rightfully in the hour of need or for the benefit of the estate. However, in cases where a prudent owner would make a charge to ensure benefit to the estate, the bona fide lender is not affected by the mismanagement of the estate. The Privy Council used the term “guardian” to describe someone who is in management of the estate and has the power to alienate the properties of the minor for a legal necessity or for the benefit of the estate.

Furthermore, in the case of Sahu Ram Chandra vs. Bhup Singh & Others (1917), the Privy Council observed that the general principle is that the minor is at liberty to affect or dispose of the joint property if it is for purposes that dominate necessary purposes. 

These demonstrate the cases where the Karta has the power to alienate joint family property. Vijnaneshawara treated this as an exception to the fundamental rules of the Mitakshara School of Law. 

The general principle of law is that the Karta does not have the power to alienate the joint family property except in certain exceptional circumstances. These case laws provide for exceptional circumstances, including legal necessity and the benefit of the estate.

The Privy Council used the expressions “need” and “benefit of estate” in the case of Hanuman Prasad. They held that although these terms have not been precisely defined, Vijnaneshwara’s expressions, Apatkale, Kutumbarthe, and Dharmarthe were converted into legal necessity, benefit of the estate, and acts of indispensable duty, respectively.

In contemporary times, a Karta is understood as a prudent manager of everything that is done in the furtherance of a family’s advancement or to prevent losses. Furthermore, he cannot convert the family property into money without replacing it with more beneficial properties. For example, alienating family property to start a new business cannot be justified by the legal necessity or benefit of the estate, even in cases where it increases the income of the family. 

Indispensable duty

The term “indispensable duty” refers to the performance of those acts that are considered to be religious or pious. Vijnaneshwara gave an instance of the same being referring to dharmarthe, i.e., the obsequies of father and added the expression “or the like ”. This implies that the term would include all the indispensable duties of the father, including shradha, Upanayanama and the performance of other necessary ceremonies. 

As per Hindu law, performing the marriage of sons and daughters of the family is an indispensable duty of the father. Furthermore, performing religious duties and alienating debts are considered indispensable duties under Hindu law.

The Privy Council in Gangi Reddi vs. Tammi Reddi (1927) observed that if property is alienated for performing an indispensable duty, then such alienation is valid. However, it is necessary that the performance of the duty be obligatory and not of a personal nature.

Gifts of love and affection

The Karta has the power to transfer reasonable portions of immovable and movable property to a coparcener or a female of the joint family who is entitled to maintenance. When the father is the Karta of the joint family, he can alienate the property for two additional purposes, including gifts of affection and satisfaction of debts. 

In simpler words, the Karta of the joint family can alienate the joint family property for legal necessity, benefit of the estate, or indispensable duty, and if the Karta is the father, then for making gifts of affection and for discharging debts.

It is pertinent to note that the Karta is not the guardian of the minor, even though the undivided interest of the minor is under the care and control of the Karta. He has the power to alienate the joint family property, and his authority cannot be questioned, curtailed, limited or deferred. 

Power of a high court to appoint a guardian under Section 12 of Hindu Minority and Guardianship Act, 1956

The proviso to Section 12 of the Act provides that the High court has the jurisdiction to appoint the guardian of a minor who will be responsible for looking after his interest in the Hindu joint family. It is crucial to note that the proviso does not confer any new jurisdiction on the High court. This implies that if a particular High court did not have jurisdiction before the commencement of this Act, it will not have jurisdiction under the proviso.

Furthermore, Section 3 of the Guardians and Wards Act, 1890, preserves the jurisdiction of the High court with respect to minors. It provides for the general jurisdiction of the High court over minors who are living within such jurisdiction, irrespective of whether such a minor is a coparcener or not.

Case laws surrounding Section 12 of Hindu Minority and Guardianship Act, 1956

Dhanasekaran vs. Manoranjitham (1992)

In this case, the High court of Madras shed light on Section 12 of the Act and explained that no guardian shall be appointed for the minor in respect of an undivided interest in joint family property if the same is under the management of an adult member of the family. The court clarified that the adult member of the family can either be a male or a female member. In the absence of an adult member in the family for the management of the property, the restriction under Section 12 of the Act will not be applicable. However, in cases where the adult member of the family is available to manage the interests of the minor in the family, the court is prohibited from appointing a guardian for the minor’s undivided interest in the joint family property. In other words, the court explained that Section 12 of the Act imposes a prohibition against the appointment of a guardian for a minor by a court other than the High court in cases where the property is under the management of an adult member of the family. 

Smt. Preeti Arora vs. Subhash Chandra Arora and Another (2024)

In this case, the appellant approached the court under Section 8 of the Act, seeking permission from the court to sell the share of his daughters in the property to ensure a better future for her minor daughters. However, the Trial court rejected the same on the ground that there might be a possibility of letting out the property for rental income instead of sale to avail the required resources for ensuring the secure future of the minor daughters. However, the Allahabad High court observed that the application filed by the appellant was wrongly rejected. Furthermore, the High court observed that Section 8 of the Act does not apply in cases where the minor’s interest in joint family property is disposed of, as per Sections 6 and 12 of the Act. The High court thus allowed the appeal of the appellant and observed that an adult head of the Hindu family does not require permission from the court to dispose of the undivided interest of a Hindu minor in the joint family property. 

Conclusion 

The Act plays a crucial role in protecting and safeguarding the interests and rights of Hindu minors. The same is evident from the different provisions of the Act, which prevent any unauthorised individual from taking advantage of a minor’s property. The lawmakers established a strong mechanism by designating a guardian legally to secure the rights and possessions of a Hindu minor. What is pertinent is how the lawmakers also inserted Section 12 of the Act, which restricts the appointment of a guardian in case there is an adult member in the family to manage the interests of the Hindu minor in the undivided joint family property, thus, striking a perfect balance between establishing a framework that protects the minor under all circumstances.

The law surrounding guardianship acknowledges the vulnerabilities of minors and ensures physical and financial protection for them. 

Frequently Asked Questions (FAQs)

Section 12 of the Act is based on which school of law?

Section 12 of the Act is based on the Mitakshara school of law, which is derived from the Yajnavalkya Smriti, authored by Vijnaneswara. The same is evident from the terminology of the provision, as is evident from the use of the expression “an undivided interest,” which implies that the interest of the coparcener is not ascertained and defined, unlike in Dayabhaga school of law, where their share is specified. 

What does the expression “adult member of the family” under Section 12 connote?

The expression “adult member of the family” under Section 12 of the Act connotes that there is a restriction against the appointment of a guardian for a minor by a court other than the High court in cases where the property is under the management of an adult member of the family. This adult member can either be a male or a female, which implies that it need not necessarily be the father, but can be the mother of the minor as well. 

Who can alienate the joint family property of the minor and under what circumstances?

The Karta is empowered to alienate the joint family property of the minor. However, this is not absolute in nature and can be done only in cases of legal necessity, the benefit of the estate, or for the performance of indispensable duties.

References

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