Section 8 of the Hindu Minority and Guardianship Act (HMGA), 1956 – It governs the powers, limitations and consequences of a guardian’s actions in respect of a minor’s property.
“Section 8. Powers of natural guardian.—(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,— (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) 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.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in subsection (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular— (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof; (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the Acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.”
It is divided into four substantive parts-Part I– General powers of a natural guardian; Part II – Restrictions on alienation of immovable property; Part III – Legal effect of unauthorized alienation; and Part IV– Standard to be applied by the Courts in adjudicating the application. Under sub-section (1), a natural guardian is permitted to perform all acts that are necessary or reasonable for the benefit of the minor or for the protection and proper management of the minor’s estate. This power is framed in broad terms, recognising that day-to-day management often requires flexibility. However, the statute is careful to make this authority expressly subject to the restrictions contained in sub-section (2), thereby making it clear that managerial powers do not extend to unfettered rights of disposition. Sub-section (2) draws a clear line when it comes to dealings with immovable property. It prohibits a natural guardian from selling, gifting, exchanging, mortgaging, or otherwise encumbering a minor’s immovable property without first obtaining the permission of the Court. The same restriction applies to leases that are long-term in nature, namely those exceeding five years or extending beyond one year after the minor attains majority. The requirement of prior judicial approval reflects legislative caution against transactions that could permanently affect the minor’s proprietary rights. The consequences of violating these restrictions are addressed in sub-section (3). A transaction entered into by the guardian without the requisite Court permission is not void ab initio, but voidable at the instance of the minor or any person claiming through the minor. This distinction is significant. It preserves the minor’s right, upon attaining majority, to either affirm the transaction or seek its avoidance, depending on whether it ultimately serves their interests.
Sub-section (4) guides the Court in deciding whether permission should be granted in the first place. The Court must be satisfied that the proposed transaction is either necessary or demonstrably for the benefit of the minor. Courts have consistently14 applied this standard with a degree of strictness, placing the burden squarely on the guardian to justify the transaction. Considerations of family’s convenience or the guardian’s personal obligations are, in our view, insufficient unless they can be shown to translate into a tangible advantage for the minor.
Section 8, therefore, embodies the principle that a natural guardian holds the minor’s property in a fiduciary capacity. The provision seeks to balance potentially competing interests.
An alienation of a minor’s immovable property made without the permission contemplated under Section 8(2) is not void ab initio but voidable at the instance of the minor or any person claiming through the minor.
The right to avoid unauthorized alienation accrues to the minor upon attaining majority and must be exercised within the period of limitation prescribed by law.
The requirement of prior permission under Section 8 is rooted in the welfare of the minor and must be applied purposefully, with reference to whether the transaction is necessary or demonstrably beneficial to the minor.
The requirement of judicial oversight when it comes to the protection of the interests of a minor, is an example of the doctrine of parens patriae as embedded with Section 8.
The doctrine of parens patriae, translates to “parent of the nation,” and emanates from the idea that the State bears a moral and legal responsibility toward those who are incapable of safeguarding their own interests.
The Guardians and Wards Act, 1890 exemplifies the classical parens patriae structure. Section 7 empowers Courts to appoint a guardian only where such appointment is necessary for the welfare of the minor while Section 17 directs the Court to be guided exclusively by welfare considerations rather than claims of right. Importantly, the Act provides for continuous judicial control even upon duly appointed guardians, particularly in matters involving the minor’s property. These provisions firmly establish the idea that guardianship is a Court-supervised responsibility.
A similar logic operates within the Code of Civil Procedure, 1908, especially Order XXXII. By prohibiting minors and persons of unsound mind from conducting litigation on their own, and by mandating the courts to appoint guardians ad litem, the Code requires active intervention on the part of the Court in furtherance of access to justice and ensuring that litigation does not become a site of exploitation or prejudice.
Modern welfare legislation makes the doctrine even more explicit. We take two examples. The Juvenile Justice (Care and Protection of Children) Act, 2015 is premised on the understanding that parental authority may fail, and that the State must be prepared to step in as a surrogate caregiver. The powers vested in Child Welfare Committees to remove children from harmful environments, place them in institutional or foster care, and supervise rehabilitation represent a direct exercise of parens patriae. The State here does not merely regulate family relations; it assumes responsibility for the child’s holistic well-being.
The Mental Healthcare Act, 2017 is another such example. The statute balances the autonomy of an individual vis-à-vis those circumstances in which informed consent becomes difficult/impossible. In such cases, Mental Health Review Boards, and Courts are authorised to appoint representatives, and take all steps as may be necessary in the interest of the person/patient. This framework exemplifies how parens patriae translates into ground reality.
In the Bharatiya Nagarik Suraksha Sanhita, 2023, parens patriae, can be seen across many Sections. For example, Section 35(7) restricts the arrest of elderly and infirm persons for less serious offences without the prior approval of a senior officer. Custodial safeguards such as Section 46 (no unnecessary restraint), requirements to inform persons of the grounds of arrest and their rights (Sections 47–48), and provisions for the medical examination of the accused (Sections 51–53) ensure dignity and welfare in custody. In addition to this, Section 398 provides for witness protection schemes, reflecting care for witnesses at risk during proceedings.
In assessing the merits of any transaction, the Court must evaluate the likely advantages against the risks. It must determine whether the minor will receive benefits that are secure, measurable and enforceable. At the same time, it must remain vigilant to possible negative effects such as diminution of value, delay in realization of benefits, or exposure to ventures that could prejudice the minor’s undivided share.
The court must ensure that adequate safeguards are in place to protect the minor’s interests. Such safeguards are not intended to restrict the legitimate rights of adult co-owners but to preserve the minor’s stake in the property in a manner.
The Court should be aware that not only the child in question but also adult co-owners possess lawful rights to derive reasonable benefit from the property. The presence of a minor should not unduly limit the ability of adults to engage in productive or economically beneficial transactions. The task of the Court is to reconcile these interests carefully, enabling everyone including adults to utilize the property in ways that do not undermine or impair the minor’s security or future options.
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