Hindu Minority and Guardianship Act, 1956

The powers of the Karta , as well as those of the guardian, are said to be based on the following four verses of the Mitakshara . Vijnaneshwara lays down the general rule in the following verses:

Therefore, it is a settled point that property in the paternal or ancestral estate is by birth. However, the father has independent power of disposal over effects other than immovable property for indispensable acts of duty and purposes prescribed by texts of law, such as gifts through affection, support of the family, relief from distress, and so forth. Nevertheless, he is subject to the control of his sons and other family members regarding immovable property, whether acquired by himself or inherited from his father or other predecessors.

It is ordained that immovable property or bipeds acquired by a man himself should not be gifted or sold without the consent of all sons, including those born, those yet to be born, and those still in the womb, as they all require means of support. No gift or sale should, therefore, be made without their agreement.

Even a single individual may conclude a donation, mortgage, or sale of immovable property during a time of distress, for the sake of the family, or for pious purposes.

The meaning of the text is as follows: While sons and grandsons are minors and incapable of giving their consent to a gift or similar action, or while brothers are still minors and remain unseparated, even one capable person may conclude a gift, hypothecation, or sale of immovable property if:

• Calamity (Apatkale): Affects the whole family.
• Family Support (Kutumbarthe): Requires such action for the maintenance of family members.
• Indispensable Duties (Dharmarthe): Such as performing the obsequies of the father or similar unavoidable duties.

Among unseparated kinsmen, the consent of all is indispensably required, as no one individual is fully empowered to alienate joint family property. The estate is held in common. Thus, Vijnaneshwara recognizes the following exceptional cases where joint family property may be alienated:

• Apatkale: In times of distress.
• Kutumbarthe: For the sake of the family (often interpreted as for the maintenance of family members).
• Dharmarthe: For the performance of indispensable duties.

Legal Necessity
In 1856, the Judicial Committee of the Privy Council gave its opinion in Hunoomanpersaud v. Babooee Mumraj Koonweeree.

Lord Justice Knight Bruce made certain observations that are now considered the basis of the law.

The learned Judge observed:
The power of the manager for an infant heir to charge an estate not his own is, under Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. However, where in a particular instance the charge is one that a prudent owner would make to benefit the estate, the bona fide lender is not affected by prior mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in a particular instance is the primary consideration.

Notes:

1. Mitakshara, Chapter I, Section 1, Verse 27:
   Justice Radha Vinod Pal believes that this text lays down the power of the father as a co-owner and managing co-owner. However, the established interpretation, as recognized by the courts, is that it deals with the power of the Karta and, by analogy, the natural guardian. Refer to Budh Karan v. Thakur Prasad, AIR (1941) 5 All 38 (40) .

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