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
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.):
- mortgage or charge, or transfer by sale, gift, exchange or otherwise,
any part of the immovable property of the minor, or
- 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
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.