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Can a Minor become party to the Transfer of Property An Analysis

Through this article, an attempt is made to discuss the legal position of a minor (a child under the age of 18 or 21 in case a guardian is appointed) as a party to the transfer of any property. The discussion is based on provisions of Contract Act 1872, Transfer of Property Act 1882, Registration Act 1908 and various judicial pronouncements.

Position of Minor under Contract Act 1872:

Sale to a minor is voidable. If an infant chooses to avoid sale in his favor, the transaction will be void- ab-initio. Consequently, the minor is entitled to recover money which he paid to the vendor as consideration on condition that property is restored to the vendor.

Minor can be a promisee. Nothing in the contract act prevents an infant from being a promisee. Where consideration passes from a third party or ‘competent’ consideration passes from minor, minor can enforce the promise of the adult promisor. If the consideration for the promise is the transfer of property by a minor, the promise would be unenforceable. Minor is wholly incompetent to transfer of property.

Minor can be admitted to the benefit of the partnership.

Position of Minor under Transfer of Property Act 1882:

Cognate reading of section 6,7, & 58 of Transfer of Property Act along with section 11 of the Contract Act entails that a minor can be a transferee but not transferor. Section 7 of the Transfer of Property Act does not declare that transfer by a person incapable of contracting is wholly void nor does it prohibits it. A person who are incapable of contracting are capable of transferring. If the section is construed as enacting transfer by an incompetent person as wholly void, it would lead to a result that minors cannot even purchase anything for cash and every shopkeeper has to deal with the public at its peril.

According to Section 7 of the Transfer of Property Act, every person who is competent to contract and entitled to the transferable property, or authorized to dispose of property is competent to transfer such property. Hence, every person competent to contract and having ownership can transfer property.

According to the Indian Contract Act, a person is competent to contract when he is a major and of sound mind and is not disqualified from contracting by any law to which he is subject. But a minor can be a transferee as there is nothing in the Transfer of Property Act to disqualify a person, who is a minor to be a transferee. Thus, a mortgage can be validly executed in favor of a minor who has paid the consideration (Hari Mohan v. Mohini, 22 C.W.C. 130, Raghava v. Srinivasa, 1917 60 Mad. 308).

Persons who reauthorized to transfer property can also transfer property validly. Although, a minor is not competent to be a transferor yet a transfer to a minor is valid. However, there are exceptions to this: If a person holds himself out is the owner with the consent of the owner i.e. doctrine of holding out or if a person represents to be the owner i.e. doctrine of feeding the grant by estoppel.

Position of a minor where legal guardian is appointed:

Section 8(2) of The Hindu Minority And Guardianship act, 1956; the natural guardian shall not, without the previous permission of the court (Civil Court or District Court or Court empowered under section 4A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the (8 of 1890 ) immovable property in respect of which the application is made is situated, and where the immovable property is situated 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 situated.):
  1. mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or
  2. 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.
Any disposal of immovable property by a natural guardian, in contravention of subsection (2) is voidable at the instance of the minor or any person claiming under him. 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.

In the case of Palaniappa Goundan v. Nallappa Goundan & Ors., AIR 1951 Madras 817, it was held:
Where an ex-minor transfers property unauthorisedly sold by his guardian during his minority he transfers not a mere right to use but his interest in the property, though a suit may be necessary to avoid the transfer by the guardian & recover possession of the property from his alienee. Conversely, the liability of the transferee from the guardian is not a liability to pay damages for the unauthorized act of the guardian but is a liability to restore the property to the rightful owner or his transferee."

Thus from the above discussion, it is amply clear that though the provisions pertaining to the transfer of property apparently appear to be intricate, it can be simplified if read along with decided case laws.

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