In this article, we shall study two more types of guardians under the Hindu Minority and Guardianship Act, 1956 (i) de facto Guardian and (ii) Guardian appointed by Court.

De Facto Guardian:

A de facto guardian is a person who takes continuous interest in the welfare of the minor’s person or in the management and administration of his property without any authority of law as though he was a guardian. De facto guardianship is a concept where past acts result in present status. The term literally means ‘from that which has been done’.  The term ‘de factor guardian’ as such is not mentioned in any of the texts, but his existence has never been denied in Hindu law.  

The de facto guardian was recognized in Hindu law as early as 1856. The Privy Council in Hanuman Prasad Singh v. Bhaguati Prasad Singh (1897) ILR 19 All 357 case, said that ‘under Hindu law, the right of a bonafide incumbrancer, who has taken a de facto guardian a charge of land, created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title

In Sriramulu v. Pundarikakshyya 1949 F.C.218 case, Kania J. said that Hindu law tried to find a solution out of two difficult situations : one, when a Hindu child has no legal guardian, there would be no one who would handle and manage his estate in law and thus without a guardian the child would not receive any income for his property and secondly, a person having no title could not be permitted to intermeddle with the child’s estate so as to cause loss to him. The Hindu law found a solution to this problem by according legal status to de facto guardians.

Section 11: The Hindu Minority and Guardianship Act, 1956:

De facto guardian not to deal with minor’s property.—

After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.

Section 11 of the Hindu Minority and Guardianship Act, 1956 prohibits a de facto Guardian to deal with minor’s property. According to Section 11 of the Act, no person shall be entitled to dispose of, or deal with, the property of Hindu minor merely on the ground of his or her being the de facto guardian of the minor.  It is now well settled that de facto guardian does not have the right to assume debt, or to gift a minor’s property, or to make reference to arbitration.

In Nathuni Mishra v. Mahesh, AIR 1963 Pat. 146 case, the Court held that Section 11 of the Hindu Minority and Guardianship Act, 1956 cannot be pleaded as a bar to the disposal of the joint family property by the Karta (the manager) of a joint family for legal necessity.

Guardian Appointed by the Court:

Section 13 of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 have provisions that the Court may appoint a guardian in certain cases.

Section 13: The Hindu Minority and Guardianship Act, 1956:
Welfare of minor to be paramount consideration.—

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

Where the court is satisfied that it is for the Welfare of minor, then it is empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act is supplementary to and not in derogation to Guardians and Wards Act. Section 13 Subsection (1) of the Hindu Minority and Guardianship Act, 1956 provides for the appointment of a guardian by the empowered Court with intention of the welfare of the minor as the paramount consideration.

The term ‘welfare’ should be understood in a very wide sense and includes not only the material and physical wellbeing of the minor but every factor connected with the moral and religious welfare, education and upbringing of the minor.

Section 17 of the Guardians and Wards Act, 1890 deals with the matters to be considered by the Court in appointing a guardian. In determining as to what will be for the welfare of the minor, the age, the sex, personal laws, the character and capacity of the guardian, his nearness of kin to the minor, the wishes (if any) of the minor’s deceased parent and previous and existing relations of the minor with the proposed guardian. If the minor is old enough to form an intelligent preference, the Court may also consider such preference.

The guardian appointed by the court is known as a certificated guardian. Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890.

There are very few acts which the guardian appointed by the court can perform without the prior permission of the court. In the ultimate analysis, his powers are co-extensive with the powers of the sovereign and he may do all those things (though with the permission of the court) which the sovereign has power to do. A certificated guardian from the date of his appointment is under the supervision, guidance, and control of the court.

In Bimla v. Subhash, 1992 Pat 96 case, the Court held that under the Guardians and Wards Act, 1890, the jurisdiction of appointing guardians is conferred on the District Court. The District Court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.

In Mohini v. Virendra, AIR 1977 SC 1359 case, the Court held that in appointing or declaring a person as the Guardian of a minor Welfare of the minor shall be the paramount consideration.

In Kumar v. Chetana, AIR 2001 SC 2179 case, the Court held that in matters related with the custody of a minor child, what is important is interest and welfare of a child and not a convenience or pressure of the parents.

In Onkar Walia v. Urmila Devi, AIR 1985 HP 100 case, the mother of a male child filed an application against the child’s father for custody of the child. As the child was below five years of age and as father has ceased to be a Hindu, the Court gave custody of the child to mother. The Court reiterated the principle that the mother is entitled to custody of such a child, in the absence of any exceptional circumstances as would disentitle her to such custody.

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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:—

1. Abuse of his trust.
2. Continuous failure to perform the duties.
3. Incapacity to perform the duty.
4. Ill-treatment or neglect to take proper care of his ward.
5. Continuous disregard to any of the provisions of the Act.
6. Conviction in case of an offence relating to lapses in the character.
7. Keeping an adverse interest.
8. Ceasing to reside within the local limits of the jurisdiction of the court, and
9. Insolvency or bankruptcy.

In addition to the above, the Hindu Minority and Guardianship Act, 1956 mentions the following grounds:

1. If he ceases to be Hindu, or
2. 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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Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Testamentary Guardians

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