Guardianship of a Minor's Person and Property

Who is the legal guardian of a minor in India?

A minor is anyone below 18. The law separates two kinds of guardianship. Guardianship of the person is about the child's upbringing: where the child lives, schooling, health, travel and daily care. Guardianship of the property is about what the child owns: a share in a house, money in a bank, insurance or compensation, shares and mutual funds. The same person often holds both, but not always, and the rules on property are stricter.

There are three kinds of guardian. A natural guardian is a guardian by law, without any order: for Hindus, the parents. A testamentary guardian is appointed by a parent's will. A court-appointed guardian, sometimes called a certificated guardian, is appointed by the court under the Guardians and Wards Act 1890. A person who simply takes care of the child, such as an uncle or grandparent, without being any of these, is a de facto guardian, and the law gives such a person no power over the child's property.

For Hindus, Buddhists, Jains and Sikhs, the Hindu Minority and Guardianship Act 1956 (HMGA) sets out who the natural guardians are and what they can do. The Guardians and Wards Act 1890 (GWA) applies to minors of all communities and governs court appointments. Muslim personal law has its own rules on guardianship, while court appointments for Muslim, Christian and Parsi minors also go through the GWA.

The provisions that decide most guardianship questions

A handful of sections answer most of the questions people bring to us. These are the ones to know.

Can the mother be the natural guardian while the father is alive?

Yes, in many situations. Section 6 of the HMGA says the father, and after him the mother. In Githa Hariharan v Reserve Bank of India (1999), the Supreme Court read 'after' to mean 'in the absence of', not 'after the death of'. So where the father is absent, is not taking interest in the child, has left the child in the mother's exclusive care, or is unable to act, the mother is the natural guardian and can act for the child, including in dealings with banks and authorities. The Guardians and Wards Act was amended in 2010 so that section 19 now refers to the father or mother, recognising both parents equally for that provision.

For a child born outside marriage, the mother is the first natural guardian under the HMGA. In ABC v State (NCT of Delhi) (2015), the Supreme Court held that an unwed mother applying to be appointed guardian need not be required to give notice to the child's father, and that she can obtain a birth certificate for the child on her own affidavit.

In practice, most institutions now accept the mother's signature for school admission, passports and bank accounts. Where a bank or authority still insists on the father's signature or a court certificate, a short letter explaining the legal position, with a copy of the relevant documents, often solves it. Where it does not, the mother can apply to court for a declaration or appointment.

Natural, testamentary and court-appointed guardians compared

When do you need a court order for guardianship of the person?

If at least one parent is alive and not unfit, you usually do not. Section 19 of the GWA stops the court from appointing a guardian of the person in that situation. Disagreements between living parents are dealt with as custody and access questions, not as appointments. Our post on visitation rights for a father covers the access side.

You do need an order where both parents have died, or where the surviving parent is genuinely unfit or has abandoned the child, and a relative is raising the child. Grandparents, an aunt or an elder sibling who has been looking after the child cannot sign consents, apply for a passport in the ordinary way, or deal with authorities as of right. A guardianship order gives them that standing. It also protects them against a later claim by another relative who wants custody.

In Delhi, a petition about guardianship of the person or custody of a minor goes to the family court with jurisdiction over the place where the child ordinarily resides. Ordinary residence means where the child actually lives, not the family's native place or the address on an old ration card. If the child has recently moved, the court will look at where the child has been living and why.

What can a natural guardian do with a minor's property?

A great deal, short of transferring immovable property. A parent can collect rent, pay taxes and maintenance charges, repair the property, deposit and withdraw money from the minor's bank account for the child's needs, invest prudently and sign ordinary documents. Section 8 allows anything that is necessary, reasonable and proper for the minor's benefit or for protecting the estate.

What a parent cannot do without the court's prior permission is sell, mortgage, charge, gift or exchange any part of the minor's immovable property, or lease it for more than five years or for a period that runs more than a year past the child's eighteenth birthday. Permission must come first. A sale done without it is not void, but voidable at the minor's instance: the child can have it set aside, usually by a suit filed within three years of turning 18. Buyers and banks know this, which is why they insist on the court order before registering a sale deed or sanctioning a loan.

Two other limits catch families out. A grandparent or uncle who is managing the child's property without being a natural, testamentary or court-appointed guardian cannot deal with it at all (section 11). And where the minor has an undivided interest in a Hindu joint family property managed by an adult member, no guardian is appointed for that interest (section 12); the karta deals with joint family property under the rules of Hindu law. Whether a property is joint family property or the father's self-acquired property, inherited by the widow and children as separate shares, is often the first question we ask.

Selling a minor's share in a flat: how court permission works

This is the most common guardianship matter in Delhi NCR. A father dies without a will, his flat passes to his widow, his children and sometimes his mother as Class I heirs, and the family later wants to sell or mortgage it. The adult heirs can deal with their own shares, but the minors' shares need the court's permission. The application is made under section 8 of the HMGA to the district court within whose jurisdiction the property is situated. In Delhi, these applications are generally heard by the District Judge in the district court complex for the area where the flat is.

The court grants permission only where the sale is for necessity or for the evident advantage of the minor. Necessity covers things like the child's education, medical treatment or maintenance where the family has no other means. Evident advantage covers a sale that clearly benefits the child: selling an old, unsafe property to buy a better one in the child's name, or selling at a good price where the property is producing nothing and the money can be secured for the child. The court is not looking for perfection. It wants to see that the child is not being made poorer to suit the adults.

When permission is granted, it almost always comes with conditions. The usual ones are that the minor's share of the sale price is put in a fixed deposit in the child's name until majority, or used to buy property in the child's name or jointly with the guardian, and that the guardian files proof of compliance with the court within a set time. When Advocate B.K. Singh drafts a section 8 petition, he sets out these safeguards in the petition itself, because a judge who can see exactly where the minor's money will go is far more willing to approve the sale.

How to apply for guardianship or sale permission in Delhi

The steps below apply to a guardianship petition under the GWA and to a section 8 HMGA application for permission. The court and some documents differ; the sequence is the same.

1. Identify the right court

   For guardianship of the person, the family court where the child ordinarily resides. For permission to sell, mortgage or gift immovable property, the district court where the property is. If the property is in Noida or Ghaziabad, the district court there.

2. Draft the petition with full disclosure

   State the child's details, the parents' status, who has been caring for the child, the property and its value, the reason for the application, and what will happen to the child's money. Name all near relatives who may have an interest. Concealment is the usual reason petitions get stuck.

3. Attach the documents and a valuation

   Death certificate of the deceased parent, legal heir or succession documents, the title deeds, a recent valuation, and for a sale, the proposed agreement or offer. The court wants to see that the price is fair.

4. Serve notice on relatives and publish if directed

   The court issues notice to near relatives and may order a public notice in a newspaper inviting objections. Relatives who consent can file affidavits saying so, which shortens the process.

5. Lead brief evidence

   The petitioner files an affidavit and may be examined briefly. Where the child is old enough to express a view, the judge may speak to the child in chambers.

6. Accept conditions and comply

   The order will usually set conditions: deposit of the minor's share, purchase in the minor's name, or a bond. Comply within the time given and file the compliance report, with copies of the deposit receipt or the new sale deed.

Uncontested petitions with complete papers are often decided in a few months. Petitions with objections from relatives, title disputes or a buyer who backs out take longer. Do not sign a sale agreement with a tight completion date before permission is granted.

Documents for a guardianship or section 8 petition

What does the court look at before appointing a guardian?

The minor's welfare comes first. Section 17 of the GWA tells the court to consider the child's age, sex and religion, the character and capacity of the proposed guardian, how closely related the guardian is, any wishes of a deceased parent, and any existing relationship between the proposed guardian and the child or the child's property. If the child is old enough to form an intelligent preference, the court may consider it. Section 13 of the HMGA says that for Hindu minors, the welfare of the child overrides everything else.

In practice, the judge asks simple questions. Who has actually been looking after the child, and how well? Does the proposed guardian have a stable home and a source of income? Is there any conflict of interest, for example a guardian who wants to buy the child's share of a property? Do other relatives object, and why? A grandmother who has raised a child for five years after the parents' death, with the school's records to show it, is in a strong position even if an uncle has more money.

The court may appoint different people for the person and the property where that serves the child, for example a grandmother as guardian of the person and a financially careful uncle as guardian of the property. It can also impose conditions, such as periodic accounts or a ban on withdrawing deposits without permission.

Bank deposits, insurance, compensation and shares in a minor's name

Money is handled more flexibly than land, but large sums still attract court control. A natural guardian can open and operate a minor's bank account and invest for the child. When a parent dies, banks and insurers often release small amounts to the surviving parent as natural guardian on indemnity, but for larger sums they may ask for a succession certificate, a guardianship order, or both. Ask the institution exactly what it requires before filing anything, because their internal limits vary.

Compensation awarded to a minor by a Motor Accident Claims Tribunal or a court is usually ordered to be kept in fixed deposit until the child turns 18, with only the interest released to the guardian for the child's upkeep. Withdrawing the principal early needs an application to the same tribunal or court, showing why the money is needed for the child, such as admission fees or medical treatment. Courts are strict about this, and rightly so.

Shares, mutual funds and similar investments that come to a minor by inheritance are transmitted to the minor's name with the guardian shown as such. A nominee is generally treated as a person who receives the asset on behalf of the legal heirs, not as its owner, so a nomination in favour of a relative does not defeat a minor heir's share. If you are dealing with nominations and succession together, take advice before you sign transmission forms.

What are the duties of a court-appointed guardian?

A court-appointed guardian holds the child's property in trust. Under section 34 of the GWA, the court can require the guardian to give a bond with or without sureties, file an inventory of the property within six months, and file accounts at intervals the court fixes. The guardian must keep the minor's money separate from their own, cannot buy the minor's property for themselves, and must deal with it prudently.

The court can remove a guardian who abuses the trust, fails to perform the duties, neglects the child or acquires an interest adverse to the child (section 39). Relatives who have concerns can apply to the same court. When the child turns 18, guardianship ends and the guardian must hand over the property and account for it. A guardian who cannot account for the child's money can be made to pay it back.

Guardianship for Muslim, Christian and other minors

The Guardians and Wards Act applies to minors of every community, so the court procedure is the same. What differs is who counts as a guardian without an order. Under Muslim personal law, the mother has custody (hizanat) of young children, but guardianship of property traditionally lies with the father, then his executor, then the paternal grandfather and his executor. A Muslim mother who wants to deal with her child's property after the father's death usually needs to be appointed by the court under the GWA.

For Christian and Parsi minors there is no separate statute on natural guardianship, and courts generally treat the parents as guardians and apply the GWA for appointments and property permissions. In all communities, the welfare of the child is the court's guiding test, and permission is needed before a guardian transfers the minor's immovable property.

Mistakes families make with a minor's property

• Selling first, applying later. Permission must be prior. An order obtained after the sale does not cure the defect, and the child can challenge the sale on turning 18.
• Signing on behalf of the minor through a relative. An uncle or grandparent without a court appointment cannot deal with the child's property.
• Executing a GPA for the minor's share. A power of attorney cannot give anyone a power the guardian does not have without the court's permission.
• Mixing the child's money with family funds. Courts expect the minor's share to be traceable. Keep it in the child's name.
• Understating the property's value. A low valuation invites objections and makes the court suspicious of the sale.
• Ignoring the other relatives. A parent-in-law or adult sibling who was not told often objects later, delaying the order by months.

What if the minor's property was sold without permission?

The sale is voidable at the minor's instance, not void. That means it stands unless the minor, or someone acting for the minor, challenges it. A minor can file a suit through a next friend while still a minor, or file it personally after turning 18. Under the Limitation Act, a ward who has attained majority has three years from the date of majority to sue to set aside a transfer made by the guardian.

If you are a buyer who has discovered that part of the property belonged to minors and no permission was taken, the safest course is usually to have the family apply for permission now, disclose the earlier transaction, and ask the court to approve a fresh conveyance of the minors' shares at a fair value. Courts can be receptive where the minors' interests are properly protected. If you are a young adult who has discovered such a sale, take advice well before the three years run out.

A point Advocate B.K. Singh often makes to buyers is that the title chain should be checked for minors' shares before any money changes hands. A mutation entry naming children as heirs is a clear warning that section 8 permission will be needed.

Adults who need a guardian

The GWA deals with minors. For adults who cannot manage their own affairs, other laws apply. Under the National Trust Act 1999, a Local Level Committee in the district can appoint a legal guardian for a person with autism, cerebral palsy, intellectual disability or multiple disabilities. The Mental Healthcare Act 2017 provides for a nominated representative for a person with mental illness. Where an adult is in a coma or otherwise incapacitated and none of these fits, families have approached the High Court for appointment of a guardian. These are separate procedures, and the right one depends on the condition and the decisions that need to be taken.

What to do this week

Work out which kind of guardianship you need. If a parent is alive and fit and the issue is only day-to-day decisions, you probably need no order at all, just a clear letter to the institution. If both parents have died and you are raising the child, a guardianship petition in the family court will give you standing. If you want to sell, mortgage or gift property in which a minor has a share, you need section 8 permission from the district court where the property is, before you sign anything binding.

Collect the documents listed above, get a fair valuation, and speak to every relative who has a share or may object. Write down exactly how the child's share will be protected. If the child receives maintenance from a parent who is alive, our post on maintenance under section 144 BNSS covers that separately, and for families where one parent lives abroad, see NRI matrimonial matters.

If you want an advocate to check whether court permission is needed and draft the petition, the team at B.K. Singh & Associates handles guardianship and section 8 applications in the Delhi, Noida and Ghaziabad courts. Share the details through our online enquiry page, or see our civil and property practice in Delhi.