HINDU MINORITY AND GUARDIANSHIP ACT HINDU MINORITY AND GUARDIANSHIP ACT
Hindu Minority and Guardianship Act, 195
Hindu Minority and Guardianship Act, 1956.²-The Hindu Minority and Guardianship Act,6.²-The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Act)
1956 (hereinafter referred to as the Act) does not codify the entire law of guarddoes not codify the entire law of guardianship applicableianship applicable to Hindus, but
to Hindus, but amendsamends andand supplements supplements the provisions of the Guardians and Wards Actthe provisions of the Guardians and Wards Act, 1890, in, 1890, in its application to Hindus only. Section 2 o
its application to Hindus only. Section 2 o f the Act clearly provides that the provf the Act clearly provides that the provisiisions of the Actons of the Act shall be
shall be in additionin addition to the Guardians and Wards Act of 1890. For the purpose of the appointmentto the Guardians and Wards Act of 1890. For the purpose of the appointment of a guardian by the
of a guardian by the Court, one has to Court, one has to look into the provisions of the Guardians and look into the provisions of the Guardians and Wards ActWards Act and the definition of a
and the definition of a minor in the Indian Majority Act. In respect of matters expressly dealtminor in the Indian Majority Act. In respect of matters expressly dealt with in the Hindu Minority and Guardianship
with in the Hindu Minority and Guardianship Act, the provisions of the Act, abroAct, the provisions of the Act, abrogate all thegate all the rules of guardianship hitherto applicable to t
rules of guardianship hitherto applicable to the Hindus by virtue of any text or he Hindus by virtue of any text or rule of Hindu lawrule of Hindu law or any custom or
or any custom or usage having the force of law, and usage having the force of law, and have overriding effect. These provisions alsohave overriding effect. These provisions also supersede any other law,
supersede any other law, if inconsisif inconsistent tent with them.with them. Age of Majority.²Section 4 of the Act
Age of Majority.²Section 4 of the Act defines the word µminor¶ as a person who defines the word µminor¶ as a person who has nothas not completed the age of eighteen years. The rules laid down by the Act or the rules applicable to completed the age of eighteen years. The rules laid down by the Act or the rules applicable to Hindus in so far as the Minority and Guard
Hindus in so far as the Minority and Guardianship is concerned is for purposes otianship is concerned is for purposes other thanher than marriage. According to both the Acts
marriage. According to both the Acts (i.e.(i.e. Indian Majority Act and Hindu Minority andIndian Majority Act and Hindu Minority and Guardianship Act) the age o
Guardianship Act) the age of majority is 18 years. According to Section .4(a) of majority is 18 years. According to Section .4(a) of the Actf the Act completion of 18 years will apply
completion of 18 years will apply in all cases.in all cases.
Act is not retrospective.²This Act is not retrospective. No
Act is not retrospective.²This Act is not retrospective. No LegislatiLegislation should on should be construed tobe construed to affect the vested rights retrospectively unless there is a clear prov
affect the vested rights retrospectively unless there is a clear prov isiision for ton for the same in the Acthe same in the Act itself
itself. In . In the Act we find no the Act we find no such provision for giving the Act a such provision for giving the Act a retrospective effect. So the Act isretrospective effect. So the Act is prospective and not r
prospective and not retrospectivetrospective.e.
Guardian²Meaning of.²A
Guardian²Meaning of.²A guardian means a person having the care of the person of another guardian means a person having the care of the person of another or of his property, or o
or of his property, or of both. Section 4 of the Guardians and f both. Section 4 of the Guardians and Wards Act also defines the wordWards Act also defines the word µguardian¶ to the same effect. Sect
µguardian¶ to the same effect. Section 4 (b) of Hindu Minority and Guardianship Act ion 4 (b) of Hindu Minority and Guardianship Act defines thedefines the word µguardian¶ as
word µguardian¶ as follfollows:ows:
³Guardian´ means a person having the care of the person of a minor, or of his property, or of ³Guardian´ means a person having the care of the person of a minor, or of his property, or of both his person and prop
both his person and property and includes² erty and includes² (i)
(i) a natural guardian;a natural guardian; (ii)
(ii) a guardian appointed by ta guardian appointed by the will of the minor¶s father or mother;he will of the minor¶s father or mother; (iii)
(iii) a guardian appointed or declared by a court; anda guardian appointed or declared by a court; and (iv)
(iv) a person empowered to act as such by or under any enactment relating to any Court of a person empowered to act as such by or under any enactment relating to any Court of Wards.
Wards.
There are four categories of guardians specifically referred to
There are four categories of guardians specifically referred to in this sectionin this section viz.,viz., the naturalthe natural guardian, testamentary guardian, a guardian appointed or declared by a court, and a person guardian, testamentary guardian, a guardian appointed or declared by a court, and a person empowered to act
GUARDIANSHIP OF THE PERSON
:-GUARDIANSHIP OF THE PERSON :- Guardianship as conceived originally was, in mostGuardianship as conceived originally was, in most systems, an extension of paternal power.
systems, an extension of paternal power. But in modern law, it essentially implies an idea of But in modern law, it essentially implies an idea of protection. Under the Hindu Minority and Guard
protection. Under the Hindu Minority and Guard ianship Act, 1956, S. 4(b), minor ianship Act, 1956, S. 4(b), minor means ameans a person who has not completed the age of eighteen years. A minor is considered to be a person person who has not completed the age of eighteen years. A minor is considered to be a person
who is physically and intellectually imperfect and
who is physically and intellectually imperfect and immature and hence needs someone¶simmature and hence needs someone¶s protection. In the modern laws of most
protection. In the modern laws of most countries, the childhood is accorded countries, the childhood is accorded protection inprotection in multifari
multifarious ways. Guardous ways. Guardian is ³a person having tian is ³a person having the care of the person ohe care of the person of the minor or of hisf the minor or of his property or of both person
property or of both person and property´.1 It may be emphasised tand property´.1 It may be emphasised that in the modern law,hat in the modern law, guardians exist essentially for the protection and care
guardians exist essentially for the protection and care of the child and to of the child and to look after its welfare.look after its welfare. This is expressed by saying that
This is expressed by saying that welfare of the child is of paramount consideration. Welfarewelfare of the child is of paramount consideration. Welfare includes both physical and
includes both physical and moral well-being.moral well-being.
Guardians may be of the
Guardians may be of the follfollowing kowing kinds :inds : 1. Natural guardians.
1. Natural guardians.
2. Testamentary guardians. 2. Testamentary guardians.
3. Guardian appointed or declared by the court. 3. Guardian appointed or declared by the court.
Under the lunacy law also, guardians can be appointed Under the lunacy law also, guardians can be appointed for lunatics or idiots even if they are
for lunatics or idiots even if they are majors. There are also guardians in litigation who aremajors. There are also guardians in litigation who are entrusted with the duty of prot
entrusted with the duty of protecting the interest of minor-plaintiff ecting the interest of minor-plaintiff oror minor-defendant. Theseminor-defendant. These guardians do not
guardians do not fall wifall within the purview othin the purview o f this work. There are two other types of this work. There are two other types of guardians,f guardians, existing under Hindu law,
existing under Hindu law, de factode facto guardians,guardians, i.e.,i.e., self-appointed guardians, and guardians byself-appointed guardians, and guardians by affinity,
affinity, i.e.,i.e., guardians of a minor widow.guardians of a minor widow.
Natural Guardians
:-Natural Guardians :- In Hindu law, only three persons are In Hindu law, only three persons are recognized as natural guardians,recognized as natural guardians, father, mother and husband. S. 6,
father, mother and husband. S. 6, Hindu Minority and GuardianshipHindu Minority and Guardianship Act.² Act.² Father.²´Father is the natural guardian of his
Father.²´Father is the natural guardian of his minor legiminor legitimate children, sons atimate children, sons and daughters.´nd daughters.´ Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural guardianship of his minor children u
the natural guardianship of his minor children unless he has been found unfit. nless he has been found unfit. The effect of thisThe effect of this provision has now been considerably wh
provision has now been considerably whittled down by judicial decisions and by S. ittled down by judicial decisions and by S. 13 of the13 of the Hindu Minority and Guardianship Act
Hindu Minority and Guardianship Act which lays down that welfare of the which lays down that welfare of the minor is of minor is of paramount consideration and father¶s right of guard
paramount consideration and father¶s right of guardianship is subordinate to the welfare of theianship is subordinate to the welfare of the child. The Act
child. The Act lays down that if father appoints a testamentary guardlays down that if father appoints a testamentary guard ian and the mother survivesian and the mother survives him, the appointment o
him, the appointment of testamentary guardian will be ineffective so long as the mother f testamentary guardian will be ineffective so long as the mother is alive.is alive. If the mother dies without appointing a
If the mother dies without appointing a testamentary guardian, the father¶s appointee willtestamentary guardian, the father¶s appointee will become the guardian. But,
become the guardian. But, if the mother dies after appointing a testamentary guardian, theif the mother dies after appointing a testamentary guardian, the mother¶s appointee will take over the guard
mother¶s appointee will take over the guard ianship of the child and the ianship of the child and the father¶s appointment willfather¶s appointment will be ineffective. The Act does not recognize the principle of joint guardians. The position of be ineffective. The Act does not recognize the principle of joint guardians. The position of
adopted children is at par
adopted children is at par with natural-born children.with natural-born children.
Where the father is alive but he is Where the father is alive but he is non-functioning natural guardian, the
J
Jijabai versus Pathan AIR 1971 SC 315ijabai versus Pathan AIR 1971 SC 315 Vaidyalingam, J. said that in the particular Vaidyalingam, J. said that in the particular circumstances of this case, µthe mother cou
circumstances of this case, µthe mother could be considered as the natural guardian old be considered as the natural guardian of her minor f her minor daughter. The particular circumstances of the case
daughter. The particular circumstances of the case were the father and mother owere the father and mother o f a minor childf a minor child had fallen out and t
had fallen out and t he mother was living separately from the father for ohe mother was living separately from the father for over twenty years. Thever twenty years. The mother had been look
mother had been looking after the affairs of her minor daughter ing after the affairs of her minor daughter and managing her properties.and managing her properties. The child was all along u
The child was all along under her protection and care. nder her protection and care. Thus, it seems that where the father failsThus, it seems that where the father fails to function or refuses to function or
to function or refuses to function or is incapable of functioning as guardian, the is incapable of functioning as guardian, the mother will bemother will be able to exercise all powers and functions of a natural guardian without being appointed guardian able to exercise all powers and functions of a natural guardian without being appointed guardian by the court.
by the court.
Githa Hariharan
Githa Hariharan v.v. Rese ReservrveeBank Bank of of India India andand Vandana ShivaVandana Shiva v.v. Jayanta Jayanta
Bandhopadhaya
Bandhopadhaya ,AIR 1999 SC 1149 ,AIR 1999 SC 1149 where under certain circumstances the mother has beenwhere under certain circumstances the mother has been held to be the natural guardian of the minor under certain circumstances and the word ³after´ has held to be the natural guardian of the minor under certain circumstances and the word ³after´ has been interpreted to mean ³in t
been interpreted to mean ³in the absence of¶ rather than ³after the he absence of¶ rather than ³after the liflife time´. It e time´. It is further heldis further held that absence would mean a
that absence would mean a bsence of father from the care of bsence of father from the care of minminor¶s person oor¶s person or property for r property for whatever reason. When a
whatever reason. When a minor brings a suit against the father to set aside improper minor brings a suit against the father to set aside improper alienation,alienation, the mother can act
the mother can act as a guardian of minor even was a guardian of minor even without seeking permissiithout seeking permission oon of court.f court.
M
M othotheer:-r:- The mother is the natural guardian of the The mother is the natural guardian of the minor illeminor illegitimate children even gitimate children even if the father if the father is alive. However, she is the natura
is alive. However, she is the natura l guardian of het minor legitimate children only if the l guardian of het minor legitimate children only if the father isfather is dead or otherwise is incapable of acting as guardian. Remarriage of the mother with a person of dead or otherwise is incapable of acting as guardian. Remarriage of the mother with a person of different faith cannot disqualify her to
different faith cannot disqualify her to be a guardian of her minor child, especially when tbe a guardian of her minor child, especially when t hehe child was being looked
child was being looked after extremely well by the mother. Proviso to clause (a) oafter extremely well by the mother. Proviso to clause (a) o f S. 6, Hinduf S. 6, Hindu Minority and Guardianship Act lays down t
Minority and Guardianship Act lays down that the µcustody of a minor who hat the µcustody of a minor who has not completedhas not completed the age of five shall ord
the age of five shall ordinarily be with the mother.¶ Thus, the inarily be with the mother.¶ Thus, the mother is entitled to the custody of mother is entitled to the custody of the child below five years, unless the we
the child below five years, unless the we lfare of the minor requires otherwise.¶ But this does notlfare of the minor requires otherwise.¶ But this does not mean that she is not
mean that she is not entitled to custody thereafter.entitled to custody thereafter. M
M other¶sother¶s right of guardianship is not lost on her right of guardianship is not lost on her conversion to another religion so long as she conversion to another religion so long as she isis able to provide a congenial, comfortable and happy home.
able to provide a congenial, comfortable and happy home.
The position of mother¶s guardianship of her The position of mother¶s guardianship of her adopted children is the same as t
adopted children is the same as that of her natural born children. It hat of her natural born children. It is submiis submitted that tted that it would be ait would be a better proposition of law if it is laid down that
better proposition of law if it is laid down that parents are equal and co-ordinate guardparents are equal and co-ordinate guardians of ians of their minor children.
their minor children.
Step-parents are not entitled Step-parents are not entitled to guardianship, unless they are specifically appo
to guardianship, unless they are specifically appo inted by the court. Once a inted by the court. Once a child goes inchild goes in adoption, natural parents cease to
adoption, natural parents cease to be natural guardians of the child. Natbe natural guardians of the child. Natural parents could beural parents could be guardians of the child only if so appointed by the adoptive parents or by the court.
guardians of the child only if so appointed by the adoptive parents or by the court.
Hu
Hu sb sband :-and :- In some systems of law, it is a curious development tIn some systems of law, it is a curious development t hat husband is considered tohat husband is considered to be the natural guardian o
be the natural guardian of his minor wife. The Hindu Minority and Guardianship Act, f his minor wife. The Hindu Minority and Guardianship Act, 1956, also1956, also lays down that husband
lays down that husband is the natural guardian of the person and is the natural guardian of the person and property of the minor wife. It isproperty of the minor wife. It is submitted that it is open to the Co
submitted that it is open to the Co urts not to give custody of a minor wife to urts not to give custody of a minor wife to a husband, if theya husband, if they are satisfied that it will not be for the we
are satisfied that it will not be for the welfare of the minor wife. This is the import of S. lfare of the minor wife. This is the import of S. 13 of the13 of the Act which lays down that
Act which lays down that welfare of the minor is of paramount cowelfare of the minor is of paramount consideratinsideration.on. It is submitted that it would be in the interest of the minor wife if it .
Rights of guardian of person:
Rights of guardian of person: The natural guardian has the The natural guardian has the follfollowing rowing rights in respect of minor ights in respect of minor children
children
(a) Right to custody, (a) Right to custody,
(b) Right to determine the religion of children, (b) Right to determine the religion of children, (c) Right to control education,
(c) Right to control education, (d) Right to control movement, (d) Right to control movement, andand (e) Right to reasonable chastisement. (e) Right to reasonable chastisement.
These rights are conferred on the guardians in the interest of These rights are conferred on the guardians in the interest of the minor children and therefore
the minor children and therefore exercise of each of these rights is subject to texercise of each of these rights is subject to the welfare of thehe welfare of the minor children.
minor children.
Custody and access : Custody and access :
Welfare of children.²It
Welfare of children.²It is a well established proposition of law that in all matters relating tois a well established proposition of law that in all matters relating to children, including access and custod
children, including access and custody, the paramount coy, the paramount consideratinsideration is the weon is the welfare of children.lfare of children. Better economic conditions of the
Better economic conditions of the father as against the maternal grandfather are cofather as against the maternal grandfather are co nducive to thenducive to the welfare of the child. Better
welfare of the child. Better financial conditifinancial conditions, ons, love for the child are relevant, but love for the child are relevant, but not the solenot the sole determining factors. The word ³ordinary´ does no
determining factors. The word ³ordinary´ does no t mean ³necessarily´. So t mean ³necessarily´. So welfare of the child iswelfare of the child is the only deciding factor.
the only deciding factor. Mother¶s remarriMother¶s remarriage is no age is no disqualifidisqualification to cation to grant her custody. If thegrant her custody. If the child is of the age o
child is of the age o f discretion, its wishes should also be consulted, though in the welfare of discretion, its wishes should also be consulted, though in the welfare o f thef the child its wishes may be disregarded. Though the ordinary rule is that a child below the age of child its wishes may be disregarded. Though the ordinary rule is that a child below the age of five should be co
five should be commimmitted to the tted to the custody of the mother, it does not custody of the mother, it does not mean that a child above thatmean that a child above that age would automatically be g
age would automatically be given over to I the custoiven over to I the custody of the father. Thus, in the wedy of the father. Thus, in the welfare of thelfare of the child above that age he/she may be committed to the custody of the mother. Ordinarily, children child above that age he/she may be committed to the custody of the mother. Ordinarily, children of tender years would not
of tender years would not be given in the custody be given in the custody of the father. Natural mother is preferable over,of the father. Natural mother is preferable over, the relations of the father. Where the g
the relations of the father. Where the g irl child was a little more than 12 irl child was a little more than 12 years old and intelligentyears old and intelligent enough to take her own decisions and wanted to live with the father the custody was granted to enough to take her own decisions and wanted to live with the father the custody was granted to the father. Mother cannot
the father. Mother cannot be deprived of custody just because she be deprived of custody just because she has remarried. A mother whohas remarried. A mother who says that she has been
says that she has been living and will continue to live with her friends and woliving and will continue to live with her friends and wo uld not minduld not mind begetting children from them, is not
begetting children from them, is not a fia fit person to have t person to have custody of the child ocustody of the child o f marriage. In thef marriage. In the welfare of the child, custody may be given to a third person. In this case, Supreme Court granted welfare of the child, custody may be given to a third person. In this case, Supreme Court granted custody to the mother
custody to the mother and grand-father. On account of continuous dand grand-father. On account of continuous disregard, father may beisregard, father may be denied the custody o
denied the custody of the child.f the child.
But while awarding custody of child to
But while awarding custody of child to anyone, the only touchstone anyone, the only touchstone isis interest and welfare of the child and
interest and welfare of the child and nothing else. Convenience and nothing else. Convenience and pleasure of parents is totallypleasure of parents is totally immaterial.
immaterial.
Powers of a natural guardian.²Section 8
Powers of a natural guardian.²Section 8 of the Act deals with powers oof the Act deals with powers of a natural guardian withf a natural guardian with respect to minor¶s person or property. Section 8
respect to minor¶s person or property. Section 8 runs as followsruns as follows ³
³Section 8² Section 8² (1) The natural guardian of a H(1) The natural guardian of a Hindu minor has power, subject to the proindu minor has power, subject to the provisivisions of ons of this section, to do all acts which are
this section, to do all acts which are necessary or reasonable and pronecessary or reasonable and pro per for the benefit of theper for the benefit of the minor or for the realization, protection or
minor or for the realization, protection or benefibenefit of the t of the minor¶s estate but the guardian can minor¶s estate but the guardian can in noin no case bind the minor by a personal covenant.
(2) The natural guardian shall not,
(2) The natural guardian shall not, without the previous permission of the court² without the previous permission of the court² (a) mortgage or charge o
(a) mortgage or charge or transfer by sale, gift, exchange or otherwise any part or transfer by sale, gift, exchange or otherwise any part o f the immovablef the immovable property of the minor, or
property of the minor, or (b)
(b) lease any part of such property for lease any part of such property for a term exceeding five years or a term exceeding five years or for a term extending morefor a term extending more than one year beyond
than one year beyond the date othe date on which the minor will attain majority.n which the minor will attain majority. (3) Any disposal of immovable property by a
(3) Any disposal of immovable property by a natural guardian, in contraventnatural guardian, in contravention of sub-sectionion of sub-section (1) or sub-section (2) is voidable at the
(1) or sub-section (2) is voidable at the instance of the minor or any person cinstance of the minor or any person c laiming under him.laiming under him. (4) No court shall grant permission to the natural gu
(4) No court shall grant permission to the natural gu ardian, to do any oardian, to do any of the acts mentioned inf the acts mentioned in sub-section (2) except in case of necessity o
sub-section (2) except in case of necessity or for an evident advantage to r for an evident advantage to the minor.the minor. (5)
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court
obtaining the permission of the court under sub-section (2) in all respect as if it were anunder sub-section (2) in all respect as if it were an application for obtaining the permission of the co
application for obtaining the permission of the co urt under Section 29 of the Act, urt under Section 29 of the Act, and inand in particular²
particular² (a)
(a) proceedings in connection with the application shall be deemed to be proceedings under that proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Sect
Act within the meaning of Section 4-A thereof;ion 4-A thereof; (b) the court shall observe the pro
(b) the court shall observe the pro cedure and have the pocedure and have the powers specified in subsections (2), (3)wers specified in subsections (2), (3) and (4) of Section 31
and (4) of Section 31 of that Actof that Act;; andand (c)
(c) an appeal shall lie from an oan appeal shall lie from an o rder of the court refusing permission to the natural guardian to rder of the court refusing permission to the natural guardian to dodo any of the acts mentioned
any of the acts mentioned in sub-section (1) of this section to the coin sub-section (1) of this section to the court to which appealsurt to which appeals ordinarily lie from the decision of that
ordinarily lie from the decision of that court.court. (6)
(6) In this section µcourt¶ means the City Civil Court oIn this section µcourt¶ means the City Civil Court o r a District Court or a court empoweredr a District Court or a court empowered under Section 4-A of the
under Section 4-A of the Guardians and Wards Act, 189Guardians and Wards Act, 1890, (8 of 1890) within the local limits of 0, (8 of 1890) within the local limits of whose jurisdiction the immovable property in respect o
whose jurisdiction the immovable property in respect o f which the application is made is situate,f which the application is made is situate, and where the
and where the immovable property is situate within the local limits of more than oimmovable property is situate within the local limits of more than o ne such court,ne such court, means the court within the local limits o
means the court within the local limits of whose jurisdiction any portion of the property is situatef whose jurisdiction any portion of the property is situate ³.
³.
This section deals with all the powers which a
This section deals with all the powers which a natural guardian maynatural guardian may exercise in respect of the perso
exercise in respect of the person and property of his ward. n and property of his ward. It also enumerates the powers, whichIt also enumerates the powers, which
Necessary or reasonable and proper acts for the benefit of the minor.²
Necessary or reasonable and proper acts for the benefit of the minor.² This part of theThis part of the section refers to the person of the
section refers to the person of the minor. A natural guardian has the power to minor. A natural guardian has the power to place such restraintplace such restraint on the minor in regard to his upbringing, education and health as may be necessary or
on the minor in regard to his upbringing, education and health as may be necessary or
reasonable, or proper for the benefit of the minor. The natural guardian has the power to delegate reasonable, or proper for the benefit of the minor. The natural guardian has the power to delegate his authority for the upbringing and educat
his authority for the upbringing and educat ion of his minor child to ion of his minor child to a tutor or school-master or aa tutor or school-master or a friend with a power to revoke t
friend with a power to revoke t he said delegation. The guardian has the said delegation. The guardian has the power to choose at he power to choose at hishis discretion the place of residence of
discretion the place of residence of minminor to or to save the minor from bad society. This section dosave the minor from bad society. This section do eses not apply to those
not apply to those alienations where the manager of the joint alienations where the manager of the joint family property alienates the jointfamily property alienates the joint interest of a minor in the family propert
interest of a minor in the family property for the benefit of the minor or ty for the benefit of the minor or the family need.he family need. The natural guardian can look after the property and
The natural guardian can look after the property andrealiserealise the income accruing from it. He canthe income accruing from it. He can do any act to
But he cannot enter into contract which may bind the minor personally. The contract entered into But he cannot enter into contract which may bind the minor personally. The contract entered into by the natural guardian for t
by the natural guardian for the interest of minor cannot be executed he interest of minor cannot be executed against him.against him. In
In M M anik Chand anik Chand v.v. Rain Chand Rain Chand AIR 1981 SC 519 :- SAIR 1981 SC 519 :- SC clearly laid down that after passing of C clearly laid down that after passing of the Act of
the Act of 1956,1956, the natural guardian has been empowered to do all such acts which arethe natural guardian has been empowered to do all such acts which are necessary for the welfare and bene
necessary for the welfare and benefifit ot of the cuikl. Such acts f the cuikl. Such acts may be necessary or reasonable for may be necessary or reasonable for the interest of the minor. He
the interest of the minor. He can even bind the can even bind the minor by a covenant if it is so minor by a covenant if it is so necessary. If henecessary. If he purchases a property on behalf o
purchases a property on behalf o f the minor, the minor would be f the minor, the minor would be fully bound to pay the salefully bound to pay the sale price. But the guardian cannot bind the minor by his personal covenant.
price. But the guardian cannot bind the minor by his personal covenant.
The expression ³legal The expression ³legal necessity´ may include payment o
necessity´ may include payment o f government revenue and debts of government revenue and debts o n minor¶s estate, minor¶sn minor¶s estate, minor¶s,, maintenance and marriage, cost of necessary litigation in recovering or preserving the estate of maintenance and marriage, cost of necessary litigation in recovering or preserving the estate of the minor etc. The co
the minor etc. The common ³necessaries´ of the minor are those things wmmon ³necessaries´ of the minor are those things w ithout which anithout which an individual cannot reasonably exist. Foo
individual cannot reasonably exist. Food, raiment, lodging and the like ; d, raiment, lodging and the like ; moral and religiousmoral and religious teaching and educat
teaching and education may constitute necessaries. Payment of taxes, repaion may constitute necessaries. Payment of taxes, repa irs of property andirs of property and performance of obligatory ceremonies for the benefit o
performance of obligatory ceremonies for the benefit o f minor maintenance of dependantf minor maintenance of dependant members of the household whom the
members of the household whom the minor is under legal duty¶ to support, can aminor is under legal duty¶ to support, can also be includedlso be included within the expressions necessaries o
within the expressions necessaries o f life.f life.
Benefit of the estate.²A transaction to be binding o
Benefit of the estate.²A transaction to be binding o n the family must be one which n the family must be one which not onlynot only confers a benefit upon t
confers a benefit upon the estate but is necessary for its good management.he estate but is necessary for its good management. Power to enter
Power to enter into contracts.²Sointo contracts.²So far as the question of the power of natural guardfar as the question of the power of natural guard ian to enter ian to enter into contract of loan on be
into contract of loan on behalf of the minor so as to half of the minor so as to bind the minor¶s estate is concerned therebind the minor¶s estate is concerned there was a conflict of judicial op
was a conflict of judicial opinion under the pre-Act law on the poinion under the pre-Act law on the po int. The Privy Council held thatint. The Privy Council held that the covenant o
the covenant of the mother of the minor while selling minor¶s property to f the mother of the minor while selling minor¶s property to indemnify theindemnify the purchaser who sued the
purchaser who sued the minor on attaining majority upon his personal undertaking against aminor on attaining majority upon his personal undertaking against a llll future claims of Governm
future claims of Government revenue on the property was nent revenue on the property was not binding on the minor. ot binding on the minor. For For example ,
example , A, A, as guardian of the estate oas guardian of the estate of a minor,f a minor, B, B, agrees to purchase immovable property fromagrees to purchase immovable property from C,
C, on behalf of on behalf of B. B B. B on attaining majority sues for specific performance.on attaining majority sues for specific performance. B B is not entitled tois not entitled to specific performance nor is
specific performance nor is C,C, But when guardian of a Hindu minor entered into a contract for But when guardian of a Hindu minor entered into a contract for sale of the minors property for pur
sale of the minors property for purposes considered under Hindu Lawposes considered under Hindu Law The Delhi High Court in
The Delhi High Court in Rumal Rumal v.v. Sriniwas,Sriniwas, has held that any contract executed by the guardianhas held that any contract executed by the guardian of the minor can be spec
of the minor can be specifically enforced by the minor or agaifically enforced by the minor or aga inst the minor. Under the law theinst the minor. Under the law the natural guardian has been e
natural guardian has been empowered to enter into the compowered to enter into the contract. If the contract is in the welfarentract. If the contract is in the welfare of the minor, it will be binding a
of the minor, it will be binding and will be enforceable.nd will be enforceable.
Compromise by natural guardian
Compromise by natural guardian.²A guardian is competent to enter into .²A guardian is competent to enter into a compromise ona compromise on behalf of his ward.69
behalf of his ward.69 In
In Bishun Deo Bishun Deo v.v. Seogeni Rai,AIR 1951 SC 285Seogeni Rai,AIR 1951 SC 285 the Supreme Court has held that the Supreme Court has held that it is notit is not necessary for the next friend or guardian of a minor to obtain the sanction of the court under necessary for the next friend or guardian of a minor to obtain the sanction of the court under Order 32, Rule 7, C.P.C., to begin negotiations for a compromise or even to. conclude a Order 32, Rule 7, C.P.C., to begin negotiations for a compromise or even to. conclude a provisional agreement with the opposite side with a
the court sanctions the conc
the court sanctions the concluded compromise as beneficial to the minor. Eveluded compromise as beneficial to the minor. Eve n where then where the mandatory provision of Order 32,
mandatory provision of Order 32, Rule 7 (i) is ignored, the resultant agreement or Rule 7 (i) is ignored, the resultant agreement or compromise iscompromise is not a nullity but is goo
not a nullity but is goo d unless the minor chooses to avod unless the minor chooses to avoid it. So the decree or order id it. So the decree or order may bemay be based thereon.
based thereon.
Acknowledgment of debt by guardian.²
Acknowledgment of debt by guardian.² A natural guardian of a minor as weA natural guardian of a minor as well as a guardianll as a guardian appointed by the court has power to acknowledge a debt or to pay interest on a debt so as to appointed by the court has power to acknowledge a debt or to pay interest on a debt so as to extend the period o
extend the period o f limif limitation protation provided the act is for the protectvided the act is for the protect ion or benefit of the minor¶sion or benefit of the minor¶s property. In Section 21(1) o
property. In Section 21(1) of the Indian Limitation Act, 1908, a f the Indian Limitation Act, 1908, a lawful guardian is included inlawful guardian is included in the expression ³agent du
the expression ³agent duly authorised in this behalf¶ occurring in Sections 19 and 20 ly authorised in this behalf¶ occurring in Sections 19 and 20 of theof the Indian Limitation Act, 1908. Guardian has no power to revive debt which has become barred by Indian Limitation Act, 1908. Guardian has no power to revive debt which has become barred by time.
time.
Family Arrangement.²
Family Arrangement.² The natural guardian has the power to enter into family settlement onThe natural guardian has the power to enter into family settlement on behalf of the minor pro
behalf of the minor provided it is in the nature of avided it is in the nature of a bona fidebona fide compromise of doucompromise of doubtful claims.btful claims.
Arbitration.²
Arbitration.² The natural guardian has power to The natural guardian has power to refer to arbitration disputes provided such arefer to arbitration disputes provided such a course is for the benefit of the
course is for the benefit of the family.family.
Power of alienation.²
Power of alienation.² The natural guardian of a Hindu minor has power in the management of The natural guardian of a Hindu minor has power in the management of the estate to sell or mortgage
the estate to sell or mortgage any part of the estate in case oany part of the estate in case o f necessity or for benefit of the estate,f necessity or for benefit of the estate, provided the natural guard
provided the natural guardian has taken permission of the Court ian has taken permission of the Court priprior to or to such alienation assuch alienation as provided in Section 8(2) of the Act. The Bombay High Court has held that it is only the natural provided in Section 8(2) of the Act. The Bombay High Court has held that it is only the natural
guardian who can move
guardian who can move an application for the permission of the an application for the permission of the court for transfer of immovablecourt for transfer of immovable property of minor. The
property of minor. The intending purchaser is incompetent and an applicatintending purchaser is incompetent and an applicat ion for permissiion for permission oon of f Court by him is not maintainable.
Court by him is not maintainable. In
In J J anardhan Pillaianardhan Pillai v/sv/s B.A. Radha,nma, B.A. Radha,nma, the court held that the court held that a sale of minor¶s property effecteda sale of minor¶s property effected by his natural guardian without o
by his natural guardian without obtaining the specific sanctions of the court btaining the specific sanctions of the court under Section 8(2) isunder Section 8(2) is an act which
an act which is prohibiis prohibited ted by law and is, therefore invalid. Hoby law and is, therefore invalid. Ho wever, in the suit filed by thewever, in the suit filed by the minor on attaining majority the plaintiff is entitled to recover po
minor on attaining majority the plaintiff is entitled to recover po ssessissession oon of the property. Thef the property. The invalidity of the sale does not mean that the plaintiff can keep the property and the consideration invalidity of the sale does not mean that the plaintiff can keep the property and the consideration money.
money. In
In Periyanayagam Periyanayagam v.v. Rajendran & others, Rajendran & others, the Court held that Sthe Court held that Section 8(3) of the Act declaresection 8(3) of the Act declares the effect of contravention of sub-section (2) o
the effect of contravention of sub-section (2) of Section 8 of the Act f Section 8 of the Act and states that any disposaland states that any disposal of immovable property by a
of immovable property by a natural guardian, in contravention of sub-section (1) or sub-sectionnatural guardian, in contravention of sub-section (1) or sub-section (2) of Section 8 o
(2) of Section 8 of the Act, is voidable at the instance of the Act, is voidable at the instance o f the minor or any person claiming under f the minor or any person claiming under him. The avoidance o
him. The avoidance o r repudiation need not necessarily be only by war repudiation need not necessarily be only by wa y of specifically prayingy of specifically praying for the relief with regard to setting aside a transaction
for the relief with regard to setting aside a transaction repudiated, but it can take repudiated, but it can take diverse forms asdiverse forms as well.
well.
Act must be done as guardian.²No
Act must be done as guardian.²No act done by a pact done by a person who is the guardian oerson who is the guardian of a minor bindsf a minor binds the minor, unless the act
the minor, unless the act was done by him in his capacwas done by him in his capacity as guardian. It is a question oity as guardian. It is a question of fact inf fact in each case whether a particular act done by a person was done by him in his capacity of guardian each case whether a particular act done by a person was done by him in his capacity of guardian
or, in his own behalf and o
or, in his own behalf and o n his own account. n his own account. In the former case the act binds the In the former case the act binds the minminor,or, provided it was otherwise within the power o
provided it was otherwise within the power o f the guardian, in the f the guardian, in the latter case it was not. Thelatter case it was not. The mere fact that the name o
mere fact that the name of the minor is not mentioned in a cof the minor is not mentioned in a contract or in a deed ontract or in a deed o f sale or f sale or mortgage, is not conclusive proo
mortgage, is not conclusive proof that the transaction was not entered into, on behalf of that the transaction was not entered into, on behalf o f thef the minor. In each case, the language of the document and the circumstances in which it was minor. In each case, the language of the document and the circumstances in which it was executed must be considered.
executed must be considered. Minors cannot be bound b
Minors cannot be bound by personal covenants.²It has been expressly laid doy personal covenants.²It has been expressly laid do wn in sub-sectionwn in sub-section (1) of Section 8 of the Act that the natural guardian shall in no case bind the minor by a personal (1) of Section 8 of the Act that the natural guardian shall in no case bind the minor by a personal covenant. Thus where a
covenant. Thus where a father enters into an agreement to sell the minor¶s property, and defather enters into an agreement to sell the minor¶s property, and de liverslivers actual possession of the same in pursuance o
actual possession of the same in pursuance o f that agreement, the said agreement is not f that agreement, the said agreement is not bindingbinding upon and enforceable against the minor even when it was entered into for his benefit. Such an upon and enforceable against the minor even when it was entered into for his benefit. Such an agreement would be voidable, and not void. The guardian has no power to bind the ward agreement would be voidable, and not void. The guardian has no power to bind the ward personally, by simple contract
personally, by simple contract e.g.,e.g., a pronote.a pronote. TESTAMENTARY GUA
TESTAMENTARY GUARDIAN RDIAN :- Meaning of :- Meaning of testamentary guardian.²The testamtestamentary guardian.²The testamentaryentary guardians of a minor are t
guardians of a minor are those guardians who are appointed by a whose guardians who are appointed by a w ill of the natural guardian,ill of the natural guardian, entitled to act as
entitled to act as a guardian for the minor. Needless to say that a guardian for the minor. Needless to say that a will becomes effective onlya will becomes effective only after the death of the t
after the death of the testator.estator. Section 9 of the
Section 9 of the Act runs as followsAct runs as follows :² :² ³(1) A Hindu father entitled to
³(1) A Hindu father entitled to act as the natural guardian of his act as the natural guardian of his minminor or legitimate children may,legitimate children may, by will, appoint a gu
by will, appoint a guardian for any of them in respect ardian for any of them in respect of the minor¶s person or in respect oof the minor¶s person or in respect of the,f the, minor¶s property [other than the undivided
minor¶s property [other than the undivided interest refinterest referred to erred to in Section 12] or in respect of in Section 12] or in respect of both.
both.
(2) An appointment made under
(2) An appointment made under sub-section (1) shall have no effect if the father pre-dsub-section (1) shall have no effect if the father pre-d eceases theeceases the mother, but shall revive, if the
mother, but shall revive, if the mother dies without appointing by will, any person as guardmother dies without appointing by will, any person as guard ian.ian. (3) A Hindu widow, entitled to
(3) A Hindu widow, entitled to act as the natural guardian of her act as the natural guardian of her minor legitimaminor legitimate children, and te children, and aa Hindu mother entitled to act
Hindu mother entitled to act as the natural guardian of her minor as the natural guardian of her minor legilegitimate children btimate children by reason of y reason of the fact that the father has beco
the fact that the father has beco me disentitled to act as such, may, by me disentitled to act as such, may, by will appoint a guardwill appoint a guardian for ian for any of them in respect o
any of them in respect of the minor¶s person or in respect of the minor¶s property [other than thef the minor¶s person or in respect of the minor¶s property [other than the undivided interest referred to in Section 12] o
undivided interest referred to in Section 12] o r in respect of both.r in respect of both. (4) A Hindu mother entitled to
(4) A Hindu mother entitled to act as the natural guardian of act as the natural guardian of her minor illegitimate children may,her minor illegitimate children may, by will, appoint a gu
by will, appoint a guardian for any of them in respect ardian for any of them in respect of the minor¶s person or in respect oof the minor¶s person or in respect of thef the minor¶s property or in respect of both.
minor¶s property or in respect of both.
(5) The guardian so appointed by will has the power to act as the minor¶s guardian after the death (5) The guardian so appointed by will has the power to act as the minor¶s guardian after the death of the minor¶s father or mother, as the case may be, and to exercise all the powers of a natural of the minor¶s father or mother, as the case may be, and to exercise all the powers of a natural guardian under this Act to
guardian under this Act to such extent and subject to such restrictions, if any, as are such extent and subject to such restrictions, if any, as are specified inspecified in this Act and in the will.
this Act and in the will.
(6) The right of the guardian so
(6) The right of the guardian so appointed by will shall, where the minor appointed by will shall, where the minor is a girl, cease on her is a girl, cease on her marriage.´
W
Who may appoint ?² ho may appoint ?² The Act recognises the right of the The Act recognises the right of the follfollowing persons to owing persons to appoint guardianappoint guardian of the person and separate property of a Hindu minor:
of the person and separate property of a Hindu minor: (1) The father, natural and adoptive;
(1) The father, natural and adoptive; (2) The mother, natural and adoptive; (2) The mother, natural and adoptive; (3) The widowed mother, natural and
(3) The widowed mother, natural and adoptive.adoptive.
Father.²
Father.² A Hindu father may by will appo AHindu father may by will appo int a guardian in respect of minor¶s person or oint a guardian in respect of minor¶s person or of f separate property or both, but
separate property or both, but not of undivided interest of the minor in the h-family propnot of undivided interest of the minor in the h-family prop erty. Theerty. The undivided interest of the minor
undivided interest of the minor in the joint-family propertyin the joint-family propertyf f must remain in the hands of must remain in the hands of K K arta.arta. But the father cannot supersede the mother to act as
But the father cannot supersede the mother to act as natural guardian by appo
natural guardian by appointing a testamentary guardian in case he predeceases inting a testamentary guardian in case he predeceases her but if theher but if the mother dies without appointing any guardian the appointment made by the father diall revive. If mother dies without appointing any guardian the appointment made by the father diall revive. If the father during the lifetime of his wife
the father during the lifetime of his wife (i.e.(i.e. minminor¶s mother) executes a or¶s mother) executes a will appointing anywill appointing any person as guardian of the
person as guardian of the minminor and dor and dies before his wife the pointment is of no ies before his wife the pointment is of no effect and mother effect and mother by virtue of the pro
by virtue of the provisivisions ons in Section 6 of the Act J in Section 6 of the Act J become the natural guardian of the become the natural guardian of the minminor butor but in case the widowed
in case the widowed mother of the minor dies without appomother of the minor dies without appoininting any persoting any person as guardian of then as guardian of the minor the appointment made
minor the appointment madeyythe father shall rethe father shall revive.vive.
W
Widow.² idow.² A A Hindu widow who is entitled to Hindu widow who is entitled to act as the natural guardian of her act as the natural guardian of her legilegitimate childrentimate children may by will appoint a
may by will appoint a guardian for any of them in respect oguardian for any of them in respect o f the minor¶s person or separatef the minor¶s person or separate property or both. Any appo
property or both. Any appo intmintment made ent made by her husband will be oby her husband will be of no effect on the face of thef no effect on the face of the appointment made by the w
appointment made by the w idow. The mother is the natural guardian of idow. The mother is the natural guardian of her illegitimate childrenher illegitimate children and can appoint a person to act as guardian in the lifetime of her husband. So the death of her and can appoint a person to act as guardian in the lifetime of her husband. So the death of her husband will make no d
husband will make no difference in so far as the appointment of guardifference in so far as the appointment of guardian for illegiian for illegitimatetimate children is concerned. In such a
children is concerned. In such a case the father has no case the father has no right to appoint any person as guardright to appoint any person as guardian.ian.
Mother.²
Mother.² A A Hindu mother entitled to act as the natHindu mother entitled to act as the natural guardian of her minor legitimate childrenural guardian of her minor legitimate children by reason of the
by reason of the fact that the father has become disentitled to fact that the father has become disentitled to act as such, because he has eact as such, because he has either ither ceased to be Hindu, or has become
ceased to be Hindu, or has become yati, sanyasi yati, sanyasi or or vanaprastha,vanaprastha, may by will, appoint a may by will, appoint a guardianguardian for any of them in respect
for any of them in respect of minor¶s person or separate property or both.of minor¶s person or separate property or both. Similarly a Hindu mother entitled to act
Similarly a Hindu mother entitled to act as natural guardian of her illegitimateas natural guardian of her illegitimate children may by will appo
children may by will appoint a guardian for any of theint a guardian for any of them in respect of the minor¶s person or inm in respect of the minor¶s person or in respect of the minor¶s separate property or
respect of the minor¶s separate property or in respect of both. In this case it is not in respect of both. In this case it is not necessary thatnecessary that the father must be incapable o
the father must be incapable o f acting as natural guardian because f acting as natural guardian because in the lifetime of mother of thein the lifetime of mother of the illegitimate children, the father has no right to act as guardian and the mother can even appoint a illegitimate children, the father has no right to act as guardian and the mother can even appoint a guardian to the exclusi
guardian to the exclusion of the father. on of the father. Father of an illFather of an illegitimate child has no power to appoint aegitimate child has no power to appoint a testamentary guardian of the child.
testamentary guardian of the child.
Powers of testamentary guardian.²
Powers of testamentary guardian.² The testamentary guardian has the rThe testamentary guardian has the r ight to act as theight to act as the minor¶s guardian after the death o
minor¶s guardian after the death of the natural guardian and to f the natural guardian and to exercise all the rights and powersexercise all the rights and powers of a natural guardian to
of a natural guardian to such extent and subject to such restrictions as are specified such extent and subject to such restrictions as are specified in the Act andin the Act and in the will. So the po
except that the po
except that the power of a testamentary guardian to deal with property bewer of a testamentary guardian to deal with property be longing to the minor islonging to the minor is subject to the restrictions imposed by the will.
subject to the restrictions imposed by the will.
Removal of the testamentary guardian.²
Removal of the testamentary guardian.² Under Section 39 of the Guardians and Wards Act, aUnder Section 39 of the Guardians and Wards Act, a testamentary guardian can be removed by the court. So it may he noted here that the Act does not testamentary guardian can be removed by the court. So it may he noted here that the Act does not abrogate the provisions of Section 39
abrogate the provisions of Section 39 of the Guardians and Wards Act of the Guardians and Wards Act and, therefore,and, therefore,
testamentary guardian can be removed in accordance with the provisions of Section 39 of the testamentary guardian can be removed in accordance with the provisions of Section 39 of the Guardians and Wards Act. So
Guardians and Wards Act. Some of the grounds for removal of a testme of the grounds for removal of a testamentary guardian asamentary guardian as mentioned in Section 39
mentioned in Section 39 of the Guardians and Wards Act are of the Guardians and Wards Act are as followsas follows (1) Abuse of his trust.
(1) Abuse of his trust.
(2) Continuous failure to perform the duties. (2) Continuous failure to perform the duties. (3) Incapacity to perform the dut
(3) Incapacity to perform the duty.y.
(4) Ill-treatment or neglect to take proper care o
(4) Ill-treatment or neglect to take proper care o f his ward.f his ward. (5) Continuous disregard to any of the
(5) Continuous disregard to any of the provisions of the Act.provisions of the Act. (6) Conviction in case of an
(6) Conviction in case of an offence for defect of character.offence for defect of character. (7) Having an adverse interest.
(7) Having an adverse interest.
(8) Ceasing to reside within the local limits of the
(8) Ceasing to reside within the local limits of the jurisjurisdiction of the codiction of the court; andurt; and (9) Insolvency or bankruptcy.
(9) Insolvency or bankruptcy.
In addition to the above, the H
In addition to the above, the H indu Minority and Guardianshipindu Minority and Guardianship Act mentions the Ilowing grounds:
Act mentions the Ilowing grounds: (i)
(i) if he has ceased to be Hindu, or if he has ceased to be Hindu, or (ii)
(ii) has completely and finally renounced thas completely and finally renounced the world by becoming a hermithe world by becoming a hermit (vanaprastha)(vanaprastha) or anor an ascetic
ascetic (yati(yati or or sanyasi). sanyasi).
Guardians Appointed by the Court
:-Guardians Appointed by the Court :- Under the.Under the. ShastricShastric Hindu law, the supreme jurisdictionHindu law, the supreme jurisdiction in respect of children was vested
in respect of children was vested in the King. The King, in exercise oin the King. The King, in exercise of this power, was enjoinedf this power, was enjoined to appoint nearest relations of the
to appoint nearest relations of the minminor as guardor as guardian, preference being given to ian, preference being given to relations onrelations on paternal side over relations on
paternal side over relations on maternal side. Now this power is exercised by courts umaternal side. Now this power is exercised by courts u nder thender the Guardians and Wards Act, 18
Guardians and Wards Act, 1890. The High Courts also have inherent 90. The High Courts also have inherent jurisdictijurisdiction to on to appointappoint guardians but this power is exercised sparingly. The
guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act Hindu Minority and Guardianship Act isis supplementary to and not in derogation to Guardians and Wards Act. The appointment of supplementary to and not in derogation to Guardians and Wards Act. The appointment of guardians of Hindu children is still regulated by e
guardians of Hindu children is still regulated by e Guardians and Wards Act, 189Guardians and Wards Act, 1890. Under the0. Under the Act, the jurisdiction is Conferred on the D
Act, the jurisdiction is Conferred on the Distriistrict Court. The Dct Court. The D istriistrict Court may appoct Court may appoint or declareint or declare in person as the guard
in person as the guardian whenever it considers it necessary in the welfare tian whenever it considers it necessary in the welfare t he child. Inhe child. In appointing a guardian, the Court takes in
appointing a guardian, the Court takes into consideration to consideration factors, including the age, sex, wifactors, including the age, sex, wishesshes of the child, the
of the child, the wishes of the parents and the personal law owishes of the parents and the personal law of the child. But before cof the child. But before commimmittingtting custody to the mother,
custody to the mother, it is not necessary to give a finding that tit is not necessary to give a finding that the father is unfit for the custodyhe father is unfit for the custody of the child.
of the child. The welfare of The welfare of children is of paramount consichildren is of paramount consideration.deration. The District Court has the power to appo
The District Court has the power to appo int or declare a guardian in respect oint or declare a guardian in respect of f person as well as separate pro
person as well as separate property of the minor. But it has no jurisdiction to apperty of the minor. But it has no jurisdiction to ap point a guardianpoint a guardian of minor¶s undivided interest in the
of minor¶s undivided interest in the M M itaksharaitakshara joint family property. However, if all joint family property. However, if all coparceners are minors, the court may appo
coparceners are minors, the court may appo int a guardian in respect of the entint a guardian in respect of the ent ire joint familyire joint family property Such an appointment will come to an end as soon as any one of them attains majority property Such an appointment will come to an end as soon as any one of them attains majority
The chartered High Courts have
The chartered High Courts have inherent jurisdiction to appoint guardians of the person inherent jurisdiction to appoint guardians of the person as wellas well as the property of minor children. This po
This is also the position under S.
This is also the position under S. 12, Hindu Minority and Guardianship Act. The g12, Hindu Minority and Guardianship Act. The g uardianuardian appointed by the court
appointed by the court is known as a certificated guardian.is known as a certificated guardian.
DE
DE FACTOFACTOGUARDIAN :-GUARDIAN :- Section 11, Hindu Minority and Guardianship Act.²ASection 11, Hindu Minority and Guardianship Act.²A de factode facto guardian means a self-appointed guardian. A
guardian means a self-appointed guardian. A de factode facto guardian is a person who takes continuousguardian is a person who takes continuous interest in the welfare of the
interest in the welfare of the minor¶s persminor¶s person or on or in the management and administration of hisin the management and administration of his property without any authority of law. H
property without any authority of law. Hindu jurisprudence has all along recognized the prindu jurisprudence has all along recognized the pr incipleinciple that if liability is incurred by one on
that if liability is incurred by one on behalf of another in a case wbehalf of another in a case w here it is justified, then thehere it is justified, then the person, on whose behalf the
person, on whose behalf the liability is incurred or, at least, his property, is liable,liability is incurred or, at least, his property, is liable, notwithstanding the fact that no
notwithstanding the fact that no authoriauthorization was made zation was made for incurring the liability. It was on thisfor incurring the liability. It was on this basis that the
basis that the de factode facto guardian enjoyed a unique poguardian enjoyed a unique positisition in Hindu on in Hindu law²a position which helaw²a position which he enjoys in no other system of law.
enjoys in no other system of law.
The term
The term µde facto guardian¶ µde facto guardian¶ as such isas such is not mentioned in any of the texts, but his existence has never been denied in Hindu law.
not mentioned in any of the texts, but his existence has never been denied in Hindu law. Sriramulu,
Sriramulu, Kania, J. said that Hindu law tKania, J. said that Hindu law tried to find a solution out of two ried to find a solution out of two difficuldifficult situationst situations one, when a Hindu child has no legal guardian, there would be no one who would handle and one, when a Hindu child has no legal guardian, there would be no one who would handle and manage his estate in law and t
manage his estate in law and thus without a guardian the child wohus without a guardian the child would not receive any incould not receive any incomeme from his property, and secondly, a
from his property, and secondly, a person having no title couperson having no title could not be permitted to inter-meddleld not be permitted to inter-meddle with the child¶s estate so as to cause
with the child¶s estate so as to cause loss to him. To make a person aloss to him. To make a person a de factode facto guardian, someguardian, some continuous course of conduct is necessary on his part. In other words,
continuous course of conduct is necessary on his part. In other words, de factode facto guardian is aguardian is a person who is n
person who is not a legal guardian, who has no authority iot a legal guardian, who has no authority in law to act as n law to act as such, but nonethelesssuch, but nonetheless he himself assumes the management o
he himself assumes the management of the property of the child as though f the property of the child as though he were a guardhe were a guardian.ian. De facto
De facto guardianship is a concept where past guardianship is a concept where past acts result in present status. The term literallyacts result in present status. The term literally means µfrom that which has been do
means µfrom that which has been done¶.ne¶. The
The de factode facto guardian was recognized in Hindu law asguardian was recognized in Hindu law as early as 1856. The
early as 1856. The Privy Council inPrivy Council in Hanuman Pd. Hanuman Pd. said that µunder Hindu law, tsaid that µunder Hindu law, the right of a bonahe right of a bona fide incumbrancer, who has taken from a
fide incumbrancer, who has taken from a de factode facto guardian a charge of land, created honestly, for guardian a charge of land, created honestly, for the purpose of saving the estat
the purpose of saving the estat e or for the benefit of the estate, e or for the benefit of the estate, is not affected by the want of is not affected by the want of union of the
union of the de factode facto with thewith the de jurede jure title¶. Wititle¶. With this case th this case developed, the law odeveloped, the law o f the power of thef the power of the de facto
de facto guardian. Inguardian. In Sriramulu¶sSriramulu¶s case, Mahajan, J. enunccase, Mahajan, J. enunciated the broad principles thus : if theiated the broad principles thus : if the estate of a person whether a
estate of a person whether a minor or absentee, or a joint proprietor, has been minor or absentee, or a joint proprietor, has been benefited by the actbenefited by the act of a person who does not hold proper authority but who is in the management of the estate, that of a person who does not hold proper authority but who is in the management of the estate, that act must be respected by the true owner and should not be repudiated merely on the ground of act must be respected by the true owner and should not be repudiated merely on the ground of want of authority. It is on t
want of authority. It is on this principle that the law of limited owner¶s (such ashis principle that the law of limited owner¶s (such as K K arta,arta, holder of holder of woman¶s estate,
woman¶s estate, M M ahant ahant andand de factode facto as well as natural guardians) power of alienation came as well as natural guardians) power of alienation came intointo existence in Hindu law.
existence in Hindu law.
Powers of
Powers of de factode facto Guardian :-Guardian :- Han uman Pd. Han uman Pd. is the authority on the guardian¶s power of is the authority on the guardian¶s power of alienation. A
alienation. A de factode facto as well asas well as de jurede jure guardian has power to guardian has power to alienate minor¶s property for :alienate minor¶s property for : (a) legal necessity, and
(a) legal necessity, and (b) benefit of estate. (b) benefit of estate.