The words “necessary, reasonable and proper” used in clause (1) of Section 8 signify that the natural guardian can exercise necessary control over the health, upbringing and education of the minor for his benefit. He can delegate this right in these matters to the teacher of the minor or to his friend. But he would also have the power to revoke those rights.
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The guardian could also decide about the residence of the minor in order to avoid the possibilities of his bad company. This section does not apply to the alienations of undivided interest where such alienation has been effected by the karta for the benefit or for the necessity of the joint family.’ Where the guardian executes a contract apparently for the benefit of the minor but later on it comes out to his detriment, the contract would be enforceable.
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In Manik Chand v. Ram Chandra, the Supreme Court followed the view of Privy Council as laid down in Subramaryan v. Subba Rao, and settled the law on the power of guardian to sue for specific performance of a contract. The court observed, “after the passing of Hindu Minority and Guardianship Act, 1956 the guardian of Hindu minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for realisation, protection or benefit of the minor’s estate.
This provision makes it clear that the guardian is entitled to act so as to bind the minor if it is necessary or reasonable and proper for the benefit of the minor. The power thus so conferred by the sections in no way restricted than that was recognised under Hindu law. This applies even to a contract for purchase of immovable property.
As it is within the competence of the guardian, the contract is entered into effectively on behalf of the minor and the liability to pay the money is the liability of the minor under the Transfer of Property Act. It cannot be said that in a contract for purchase of property the guardian would be binding the minor by his personal covenant. Thus the contract entered by the guardian on behalf of the minor would be enforceable.”
In the above case a contract to purchase a house was executed by the mother on behalf of minors. At the time of agreement one thousand rupees was paid as earnest money and the balance was to be paid at the time of the registration of the sale deed. The vendor refused to carry out his part of the agreement and hence a suit for specific performance of the contract was filed on behalf the minor.
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The suit was dismissed by the High Court on the ground that as the contract was entered into on behalf of the minors a decree for specific performance could not be granted to the appellants for want of mutuality. The Supreme Court disagreed with the above view and held that the guardian was fully competent to enter into the contract if it was related to the interest of the minor.
The apex court while discussing the scope of Section 8 of the Act laid down that the section deals comprehensively with the nature and extent of power of natural guardians with respect to the alienation of immovable property of the minor’s, where the parents of the minor have sold away the immovable property belonging to the minor without any legal necessity or benefit to the estate and the court’s permission also has not been obtained to this effect, then irrespective of the registration of sale-deed, the sale by the guardian would not be regarded as sale and the alienation by sale would be void not voidable within the meaning of the section.
The Delhi High Court reiterated that subject to the restrictions enacted in the Hindu Minority and Guardianship Act on the powers of guardian of a Hindu minor he can be a “transferor” and a “transferee”. A contract entered into by a guardian of a Hindu minor for purchase or sale of immovable property is specifically enforceable by or against the minor.
Similarly where the mother files a suit for specific performance on behalf of her minor son while the father was alive and relations between the two were strained, the court held that if there was no conflict between the interest of the mother and minor, the mother retains the power to sue on behalf of the minor.
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It is a binding duty of the creditor to enquire as to whether the debt taken for him is meant for the benefit of the minor, and if he is satisfied with the bona fides after a reasonable enquiry, the debt parted with would create a charge on the property of the minor.
Where the minor has got unproductive property, which is sold away by the guardian with intent to purchase some productive property in its place, the sale would be binding on the minor. The test in such cases is not that there should be no alternative, but that whether the act was for the benefit of the minor in the known circumstances. The guardian occupies a fiduciary position. His decision to alienate should be objective the standard of care required would be more akin to that of a trustee than that of an owner.
The guardian can also take measures to recover the property of the minor where it has gone into the possession of some other person and in that process he is competent to incur appropriate expenses.