2023 YLR 854
Whether the father being legal guardian, can enter into agreement to sell on behalf of the minors when he has not obtained any certificate of guardian of property of the minors from the court; if not so, whether such agreement to sell if agreed between the parties, is executable?
The property of the minors, admittedly, could not be sold by anybody including the father who is the legal guardian of the minors except in some exceptional cases which have been stated in section 359 of the Guardian & Wards Act, 1890 that following persons are legal guardian and entitled to be the guardian of the property of a minor;
(1) The father.
(2) The executor appointed by the will of father’s will.
(3) The father’s father
(4) The executor appointed by the will of t he father’s father.
Further; section 362 of the Act ibid empowers the legal guardian to sell the immovable property of the minor under special circumstances mentioned in that. The father of the minors was never appointed as guardian by the court under section 29 of the Guardian & Wards Act, 1890. He has never applied for that. Furthermore; none of the circumstances were there to consider that he sold out the land to the petitioners as per their claim. This is also important that in the agreement to sell they have mentioned that father of the minors will get the certificate and permission for sale of the property and then, will complete the agreement to sell according to record, was pen down on 18.06.2003. Till the filing of suit, the respondents/plaintiffs have not brought on record anything that they ever gave any notice to father of minors for initiating the guardian certificate in order to execute the impugned agreement to sell themselves have also not filed any application before any court to force him for completion of the agreement to sell. According section 11 of the Contract Act, the minors are not competent to enter into the contract. And any contract which has been shown by the minors or on beh alf of the minors without any authority, would be invalid. Even, the person who is appointed as guardian of property of the minors, could not enter into the agreement to sell of the property of minors with anyone except when it is in the benefit of the min ors and that also requires the permission of the court. So, knowingly, the act of the petitioners made their version doubtful that they were paying the amount to a person who was even not authorized to enter into a contract and for three years till filing of the suit, they did not take any initiative to complete the said person for initiating to obtain the guardianship of the minors regarding the said property.
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