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Sale transfer of minor’s immovable property by natural guardian without permission of the court is not void but merely voidable: High Court of Delhi

Section 8(2) provides that the natural guardian shall not without the previous permission of the court, inter alia, transfer by way of a sale any part of the immovable property of a minor. 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. Such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act and the same was upheld by High Court of Delhi through the learned bench led by Justice Yashwant Varma in the case of ANIL KAPOOR & ANR. vs. UNION OF INDIA & ANR. [W.P.(C) 10713/2020] on 18.02.2022.

The facts of the case are that one Ugar Sain Mohan bequeathed his interest in the property to his four sons in terms of a Will. The submission of the aforesaid no objection is also not disputed by the respondents. One of the sons of the original lessee is stated to have died in 1991. He left behind a last will and testament bequeathing all his movable and immovable properties in favour of his wife. The three surviving sons as well as the widow are thereafter stated to have executed agreements to sell with respect to the subject property in favour of the petitioners here. This was done without seeking the permission of the competent Court with respect to the rights of the two minor children whose share also was liable to be recognized as existing one’s the father passed away.

The petitioner assails the validity of an order passed by the respondents pursuant to which their prayer for conversion of the subject property from leasehold to freehold has come to be rejected.

The petitioner’s counsel submitted that the view taken by the respondents clearly falls foul of the provisions made in Section 8(3) of the Hindu Minority and Guardianship Act, 1956 as it is a well settled a disposition that the transfer of the share of a minor is not void in the eyes of law.

In view of aforesaid facts and circumstances, the Court held that respondents are clearly incorrect and unjustified in viewing the transfer made by the widow in favour of the petitioners as being void because it is not the case that the two minors have either assailed or questioned the alienation made by the natural guardian.

The Court observed, “Section 8(2) provides that the natural guardian shall not without the previous permission of the court, inter alia, transfer by way of a sale any part of the immovable property of a minor. 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. Such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act.”

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Judgment reviewed by – Shristi Suman

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