Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Testamentary Guardians
A Testamentary Guardian is one who is appointed by a will of the natural guardians of the minor. The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. It is necessary for the testamentary guardian to accept ‘the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.
Section 9: The Hindu Minority and Guardianship Act, 1956:
Testamentary guardians and their powers.—(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.
(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.
(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both.
(5) The guardian so appointed by will has the right 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 rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.
(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
Under Section 9, of the Hindu Minority and Guardianship Act, a testamentary guardian can be appointed only by a will. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian for the natural or adoptive minor has now been conferred on both parents. There is nothing in the act which limits the choice of natural guardian to appoint any person as the guardian under a validly executed will. But the person so appointed must be one who is not suffering from any disqualifications like a minority, renunciation of the world or being a non-Hindu or insanity.
In Case of Legitimate Child:
Under old Hindu Law, a testamentary guardian appointed by father could function even though when the mother was alive. But according to Section 9 Subsections (1), (2) and (3), father can appoint guardian of his minor child, but even though the father has appointed a guardian if the mother is alive, she would be minor’s guardian, and she also can appoint under her will a guardian of her own choice. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father’s appointment will continue to be ineffective. If the mother does not appoint, father’s appointee will become the guardian. Thus where the father dies during the lifetime of his wife (minor’s mother) after appointing a guardian by will, the appointment of the guardian by the father will not become effective and the mother by virtue of the provisions in Section 6 of the Act will become the natural guardian of the minor. But where the widowed wife, i.e., minor’s mother dies without appointing any person as guardian by the will of the minor, the appointment made by the father will revive.
in Case of Illegitimate Child:
As per Section 9 Subsections (4) where the child is illegitimate, the biological mother of the child being a natural guardian can appoint a guardian by will even during the lifetime of her husband. In such case, the father has no right to appoint any person as the guardian.
In Case of Married Minor Girl:
Under Section 9 Subsections (6) the guardian of a minor girl will cease to be the guardian of her person on her marriage, and the guardianship cannot revive even if she becomes a widow while a minor.
Under Section 9 Subsection (5) the testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will.
Powers of Testamentary Guardian:
The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. Thus the powers of testamentary guardian and the natural guardian are the same (Section 8 of the the Hindu Minority and Guardianship Act, 1956) subject to the provisions of the law if necessary or found to be beneficial to the estate of the minor except that the power of a testamentary guardian to deal with property belonging to the minor is also subject to the restrictions imposed by the will.
Removal of Testamentary Guardian:
Section 39 of the Guardian and Wards Act lays down certain grounds on which a testamentary guardian could be removed. It may be noted here that the above section has not been abrogated by the present Act of 1956 hence it stands a good law even today. Thus a testamentary guardian could be removed on the following grounds as mentioned in Section 39 in the Guardian and Wards Act:—
- Abuse of his trust.
- Continuous failure to perform the duties.
- Incapacity to perform the duty.
- Ill-treatment or neglect to take proper care of his ward.
- Continuous disregard to any of the provisions of the Act.
- Conviction in case of an offence relating to lapses in the character.
- Keeping an adverse interest.
- Ceasing to reside within the local limits of the jurisdiction of the court, and
- Insolvency or bankruptcy.
In addition to the above, the Hindu Minority and Guardianship Act, 1956 mentions the following grounds:
- If he ceases to be Hindu, or
- Has completely and finally renounced the world by becoming a hermit or an ascetic.
Section 10: The Hindu Minority and Guardianship Act, 1956:
Incapacity of minor to act as guardian of property.—A minor shall be incompetent to act as guardian of the property of any minor.
Thus a minor cannot be appointed as testamentary guardian.
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