The Worry Every Parent Carries
Imagine this: A father of two young children, aged 6 and 9, passes away suddenly after a road accident. He had bought a flat in the children's names and left behind a small fixed deposit. His wife, their mother, is now the natural guardian. She is grieving, under pressure from both sides of the family, and is being told by a brother-in-law to sell the flat because "the children don't need it right now." No one tells her that she cannot legally do this without going to court first. Three years later, the flat is gone. And when the children grow up, they have nothing.
This is not a rare story. It happens in families across India every year — not always because someone is dishonest, but because people simply do not know the law. And the law, in this case, is actually on the children's side. It is designed specifically to stop this from happening. You just need to know how to use it — and how to set things up before you are no longer around to protect your children yourself.
Who Becomes Guardian When You Are Gone?
Under the Hindu Minority and Guardianship Act, 1956 (HMGA), a "guardian" means a person having care of the minor or of the minor's property, or both. The law recognises four types of guardians: natural guardians, testamentary guardians (appointed by will), court-appointed guardians, and guardians under a Court of Wards.
For most Hindu families, the natural guardian is the father, and after him, the mother — under Section 6 of the HMGA. If the father dies, the mother automatically becomes the natural guardian of the child's property. The Supreme Court in Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149) clarified that the word "after" in Section 6(a) means "in the absence of" — not merely "after death." So even while the father is alive but absent or indifferent, the mother can act.
If both parents are dead or disqualified, no one becomes guardian automatically. The court steps in under the Guardians and Wards Act, 1890 (GWA). Under Sections 7 and 17 of the GWA, the court will appoint a guardian based on the welfare of the minor. The guiding principle under Section 13 of the HMGA is clear: the welfare of the minor is the paramount consideration.
There is one important exception: if the minor has an undivided interest in a Hindu Joint Family property and there is an adult Karta managing it, no separate guardian needs to be appointed for that share under Section 12 of the HMGA. But for a child's separate, individual property — a flat inherited from a grandparent, a fixed deposit, agricultural land given by the father's will — the full protection regime of Section 8 applies.
What Can a Guardian Actually Do with the Property?
A natural guardian's powers over a minor's property are defined and limited by Section 8(1) of the HMGA. The guardian can do all acts that are "reasonable and necessary for the protection, realisation or benefit of the minor's estate." The guardian cannot bind the minor by a personal covenant. In plain language: the guardian can manage, maintain, and protect the property — but cannot gamble with it, pledge it as security for a personal loan, or make deals that harm the minor's interest.
What counts as "necessary"? Courts have recognised that paying for the minor's maintenance, carrying out essential repairs to property, performing the deceased parent's funeral ceremonies, and paying off debts of the estate can be necessary expenditures for which the guardian may act. If a property is unproductive and can be exchanged for a productive one to genuinely benefit the child, that may also be justified — but only with court permission, which we come to next.
The Supreme Court in Manik Chand v. Ramchandra (AIR 1981 SC 519) confirmed that a natural guardian has legal authority to enter contracts on behalf of a minor, provided the conditions in Section 8 are met. But if those conditions are not met, the minor is not bound.
The Golden Rule: Court Permission Before Any Sale or Mortgage
This is the single most important protection the law gives your child's property. Section 8(2) of the HMGA states that a natural guardian cannot do any of the following without the prior permission of the court:
- Sell the minor's immovable property
- Mortgage or charge it
- Gift it
- Exchange it
- Lease it for more than 5 years, or for a term extending more than 1 year beyond the child's 18th birthday
The "court" here means the City Civil Court or District Court within whose jurisdiction the property is located — under Section 8(4) and (5). The court will only grant permission if it is satisfied that the transaction is either necessary (e.g., to pay for the child's education or medical treatment) or of "evident advantage" to the minor. This is not a rubber stamp. Courts take this responsibility seriously.
Importantly, Section 8(2) does not apply to a minor's undivided share in a Hindu Joint Family property — that is governed by customary Mitakshara law through the Karta. But it does apply to any property your child holds in their individual name — a flat, a plot, agricultural land, a savings account or FD as beneficial owner.
Even a well-meaning guardian who acts in the child's interests must take this step. A widowed mother who genuinely needs to sell the flat to pay for her child's schooling must approach the court first. As the Bombay High Court noted in Murlidhar v. Yallappa (AIR 1994 Bom. 358), a transaction by the father and guardian for benefit of the minor is enforceable — but only when Section 8's conditions are complied with.
What Happens If the Guardian Sells Property Without Permission?
The law is forgiving to the child, not to the guardian. Under Section 8(3) of the HMGA, any transaction in violation of Section 8(1) or 8(2) is voidable at the instance of the minor or any person claiming under the minor. This means when your child turns 18, they can go to court and get the sale set aside — even if the buyer has already moved in.
The Supreme Court has been clear on this: "Where the property of the minor was sold by his father as his natural guardian to a person without the permission of the court as required by Section 8 of the Hindu Minority and Guardianship Act, and the sale was not for legal necessity, the minor would be entitled to file a suit for setting aside the sale within three years after the minor attained majority."
The landmark case of Madegowda v. Ankegowda (AIR 2002 SC 215) goes further. In this case, after the father died, his major daughter sold the property purporting to act as guardian of her minor sister. The Supreme Court held that a sister is not a natural guardian and the sale was void — no separate suit was even needed to set it aside.
Similarly, in Pannilal v. Rajinder Singh (1993) 4 SCC 38, where the mother executed a sale that was attested by the minor's father, the court held the sale was voidable, not void — and the minor could challenge it upon attaining majority.
The right to challenge extends not just to the minor but also to anyone "claiming under" the minor — including heirs, assignees, or legal representatives — as held by courts interpreting Section 8(3).
The Power of Naming a Guardian in Your Will
This is the most powerful tool a parent has to protect a child's inherited property: a properly drafted will with a named testamentary guardian. Under Section 9(1) of the HMGA, a Hindu father may appoint by will a guardian for the person and property of his minor legitimate children. The mother can do the same — after the father's death or if the father is disqualified under the proviso to Section 6.
A testamentary guardian steps into the shoes of the natural guardian. Under Section 9(5), this guardian has all the rights of a natural guardian "to such extent and subject to such restrictions as are specified in the Act and in the will." This is significant — you can write restrictions into the will itself. For example, you can say that the testamentary guardian cannot sell any property without first getting court approval and notifying a named family trustee. The will becomes a binding instruction manual for how your child's estate is to be managed.
One critical point: the testamentary guardian still cannot sell the minor's property without the court's prior permission. Section 28 of the Guardians and Wards Act, which used to allow testamentary guardians to alienate property without court sanction, was rendered ineffective by Section 5 of the HMGA (overriding effect) as it is inconsistent with Sections 8 and 9(5). The Madras High Court confirmed this in Duraiswamy v. E. Balasubramanian (AIR 1977 Mad. 304) and Swanathan v. Argayarkanni (AIR 1964 Mad. 11).
The court retains supervision over the testamentary guardian just as it does over any other guardian. Under Section 39 of the Guardians and Wards Act, a testamentary guardian can be removed by the court if they mismanage the minor's estate or act against the minor's welfare — exactly the same power the court has over natural guardians.
One more thing to know: if the father appoints a testamentary guardian and then the mother survives the father, the father's appointee does not take effect — the mother, as natural guardian, takes over. But if the mother then dies without making her own will, the father's earlier appointment revives. This nuance is directly supported by Section 9 of the HMGA.
De Facto Guardians — The Unauthorised Well-Wisher Problem
A "de facto guardian" is someone — perhaps a grandparent, uncle, or close family friend — who starts managing the child's affairs without any legal authority. Before 1956, de facto guardians in Hindu law had some limited recognition. Section 11 of the HMGA ended this for property matters. It expressly prohibits any person acting as a de facto guardian from disposing of or dealing with a minor's property.
The case of Kondamudi Sriramula v. M. Pundari Kakshayya (AIR 1949 FC 218) explained that a de facto guardian is essentially a "de facto manager" — they may be acting in good faith, but they have no legal standing to sell or transfer the child's property. Any sale or transfer made by a de facto guardian is void. The alienee (buyer) gets nothing and cannot even claim a refund of their money, as confirmed in D. Gurumurthy v. Raghu Podhan (AIR 1967 Ori. 68).
This is relevant for child custody situations where a child lives with grandparents after both parents die. The grandparents may love the child dearly and manage all day-to-day affairs, but they cannot sell or mortgage the child's inherited land or flat without first being formally appointed as guardian by the court under the Guardians and Wards Act.
What Should I Actually Do Now?
If you are a parent reading this and your child stands to inherit property — or has already inherited it — here are the steps you should take:
- Make a will today. Even if you are young and healthy, a valid will naming a testamentary guardian for your child's property under Section 9 HMGA is the single most important step you can take. Don't wait. Name someone you trust completely — a sibling, a close friend, or a trusted family member.
- Name the testamentary guardian specifically for property. Be clear in your will that the named person is appointed as guardian of the minor's property, not just their person. Include any restrictions you want — such as requiring a second person's consent before any sale, or barring the sale of a specific property altogether.
- Register your will. While registration is not mandatory for a will to be valid, a registered will is harder to challenge. Visit the Sub-Registrar's office in your district with two witnesses. For wills and succession planning specific to your assets, consult a lawyer.
- Inform your nominee/guardian. The person you have named should know they have been appointed and what they must do. Give them a copy of the relevant portions of the will. Ignorance after your death helps no one.
- Tell your family clearly: no one can sell the child's property without court permission. Share this article if needed. The more family members who understand Section 8(2), the less likely it is that someone will act in ignorance and create a legal problem for your child.
- If your child has already inherited property, document it properly. Make sure the property is in the child's name in all records — property tax, mutation, bank FD records, etc. Any ambiguity in ownership makes it easier for someone to claim control.
- If you are the surviving guardian, go to court for permission before any transaction. If you genuinely need to sell or mortgage the child's property for their benefit — school fees, medical emergency — file an application under Section 8(4)-(5) before completing the deal. It is not complicated, but it must be done first.
- If someone is already mismanaging your child's property, act quickly. A minor's legal representative can approach the court to remove a guardian under Section 39 of the Guardians and Wards Act. Once the minor turns 18, they have 3 years to challenge any unauthorised transaction under Section 8(3).
Pinaka Legal regularly advises parents on setting up the right guardianship structure through wills and court applications. If you are unsure where to start, a consultation can help you put the right safeguards in place before it is too late.
Your Child's Property Is Legally Protected — If You Plan Ahead
The law does not leave a minor child helpless. The Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 together create a comprehensive protective framework. No one — not the surviving parent, not a relative acting informally, not a testamentary guardian named in a will — can sell, mortgage, or gift away your child's inherited property without the District Court's prior sanction. And if they do, your child can challenge it when they grow up.
But the law works best when parents plan. A child whose parent has made a will with a named, trusted testamentary guardian is far better protected than one who has not. The guardian knows what to do. The court knows who to supervise. The child's property does not sit in limbo while relatives argue.
You cannot protect your child from everything. But you can protect their property. The tools are there. Use them now.
Frequently Asked Questions
Can someone sell my child's inherited property without going to court?
No. Under Section 8(2) of the Hindu Minority and Guardianship Act, 1956, no guardian — whether natural or testamentary — can sell, mortgage, gift, or exchange a minor's immovable property without the prior permission of the court. If they do, the transaction is voidable at the minor's instance once they turn 18.
What is a testamentary guardian and how does it protect my child's property?
A testamentary guardian is a person you appoint in your will to manage your minor child's property after your death. Under Section 9 of the Hindu Minority and Guardianship Act, a father can appoint a testamentary guardian for his legitimate minor children. Even this guardian cannot sell property without court permission, so the court remains a safety net throughout.
Who becomes the guardian of my child's property after I die?
If the father dies, the mother becomes the natural guardian of the minor's property under Section 6 of the Hindu Minority and Guardianship Act. If both parents are dead or unfit, the court appoints a guardian under the Guardians and Wards Act, 1890. You can also pre-appoint someone trustworthy through a properly drafted will as a testamentary guardian.
Can the court remove a guardian who is mismanaging my child's property?
Yes. Under Section 39 of the Guardians and Wards Act, 1890, the court has power to remove any guardian — natural or testamentary — who misuses or neglects the child's property. The guardian must account for all income and expenditure relating to the property whenever the court asks. Mismanagement is taken seriously by courts.
Does the guardian need court permission for every act involving my child's property?
Not for every act. Permission is specifically required for sale, mortgage, gift, exchange, or lease of more than 5 years. For ordinary management — collecting rent, essential repairs — the guardian can act without approaching court. Section 8(1) of the HMGA allows all reasonable and necessary acts for the protection or benefit of the minor's estate.
What happens if the guardian sells my child's property without court permission?
The sale is voidable — meaning your child can challenge it after turning 18. Under Section 8(3) of the Hindu Minority and Guardianship Act, the minor or any person claiming under the minor has the right to set aside such a transaction. The Supreme Court has confirmed this right. The child must typically file suit within 3 years of attaining majority.
Can my sister or brother manage my child's property if I die?
Not automatically. A sister or brother is not a natural guardian under the law — the Supreme Court confirmed in Madegowda v. Ankegowda (AIR 2002 SC 215) that a sister is not a natural guardian and any property sale by her acting as guardian is void. If you want a sibling to manage the property, appoint them formally in your will as a testamentary guardian, or have the court appoint them under the Guardians and Wards Act.
Is a de facto guardian allowed to manage or sell my child's inherited property?
No. Section 11 of the Hindu Minority and Guardianship Act, 1956, expressly bars any person acting as a de facto guardian from disposing of or dealing with a minor's property. Any sale or transfer made by such a person is void. Even if they acted with good intentions, the law does not give them authority to deal with the child's property.
What court do I approach to get a guardian appointed for my child's property?
An application for appointment of a guardian of a minor's property is filed in the District Court where the minor ordinarily resides, under Section 9 of the Guardians and Wards Act, 1890. Sections 7 and 17 of the same Act govern how the court will consider and declare the guardian, always keeping the minor's welfare as paramount.
Can I protect my child's property from mismanagement even before I die?
Yes, absolutely. The best time to act is now. Draft a proper will naming a trustworthy testamentary guardian specifically for your child's property. You can include restrictions in the will limiting the guardian's powers. If you own real property, registering the will strengthens the position. Consulting a family law lawyer to structure this correctly is strongly recommended.
Does a guardian have to keep accounts of my child's property?
Yes. The Guardians and Wards Act requires a court-appointed guardian to maintain accounts and submit them to the court as directed. Even a natural or testamentary guardian who comes under court supervision can be required to account. Courts take mismanagement of a minor's estate seriously and can order restitution of any amounts wrongfully dealt with.
How to protect my minor child's inherited property after death — what is the first step?
The first and most important step is to make a valid will naming a testamentary guardian for your child's property under Section 9 of the Hindu Minority and Guardianship Act. Without this, whoever becomes the natural guardian (usually the surviving parent) will manage the property, and if there is no surviving parent, the court will appoint someone without your input. Planning ahead through a will gives you control over who that person is.
For more articles on Indian law, visit the Pinaka Legal Blog.
Written by the Pinaka Legal Editorial Team. For legal queries, call +91 8595704798 or email info@pinakalegal.com.