Hindu Minority and Guardianship Act, 1956

 Hindu Minority and Guardianship Act, 1956

 Guardian

 Guardians may be divided into three classes, namely,

i) natural guardians

ii) testamentary guardians, and

 iii) guardians appointed under the guardians and wards Act, 1890 and the present Bill is supplemented to the guardians and wards Act, 1890, and deals with natural guardians and testamentary guardians incidentally abolishing de facto guardians.

 

Q. 14 (a). What do you understand by the term "Natural Guardian" under the Hindu Minority and Guardianship Act, 1956? What are his powers?

Or

Who are the natural guardians under the Hindu Minority and Guardianship Act? Discuss their powers also?

Or

What do you understand by 'natural guardians' under the Hindu Minority and Guardianship Act, 1956? Examine their powers as contained in this Act.

 

Ans. Who are natural guardians.- A natural guardian is one who becomes so by reason of his natural relationship with the minor. In other words a natural guardian is a person having the care of the person of a minor or of his property or of both his person and property by virtue of his natural or fictional relationship with the minor.

Under Section 4 (c) of the Hindu Minority and Guardianship Act "natural guardian" means any of the guardians mentioned in Section 6. Section 6 of this Act provides that the natural guardians of a Hindu minor, in respect of the minor person as well as in respect of the minor's separate property are the father and after him the mother. The natural guardian of a minor wife is her husband.

 

Father. The father is the natural guardian of his minor legitimate son as well as his minor legitimate unmarried daughter. An adopted child is deemed to be the child of his or her adoptive parents for all purposes, and this includes the purpose of guardianship, also. Therefore the natural guardianship of an adopted child who is a minor person, on adoption are the adoptive father and after him the adoptive mother. In the case of legitimate children's guardianship father has been preferred to mother, but in case of illegitimate children the mother has got the upper hand in natural guardianship.

 

Mother. After father mother is the natural guardian of her minor legitimate son and minor legitimate unmarried daughter. During the lifetime of the father, the mother is the natural guardian of her said children if father renounces the world or is converted to another religion.

In Githa Hariharan v. Reserve Bank of India, AIR 1994 SC 1149 the Supreme Court held that the word 'after' in Section 6 (a) of the Hindu Minority and Guardianship Act means 'in the absence of. If the father is not in charge of actual affairs of the minor, either because of his indifferences, or by virtue of mutual understanding between the parents, or because of some physical or mental incapacity, or because he is staying away from the place where the mother and minor are living, then in all such situations, the father can be considered 'absent' under the provisions of Hindu Minority and Guardianship Act and the mother, who in any case is a recognised natural guardian, can act validly on behalf of the minor as the guardian. The predominent consideration in every case, however, would be the welfare of the child.

 

The custody of a legitimate child upto the age of five years shall ordinarily be with the mother.

In the case of an illegitimate son or an illegitimate unmarried daughter, the mother is the natural guardian, and after her the putative father. The position of an adopted child is at par with natural born-child. In other words, after the adoptive father the natural guardian of the adopted child is his or her adoptive mother. If a child is adopted by an unmarried woman, she will be the adoptive mother of the child, and the husband whom she subsequently weds will be in the position of the step-father of the child. The only natural guardian of such child will be the adoptive mother.

The step-father and the step-mother are not the natural guardians of the step-child.

Husband. Husband is the natural guardian of his minor wife, however young she may be. If the husband himself is a minor, he cannot be the natural guardian of wife's property, because Section 10 of the Act prohibits minor to act as guardian of property. However, this provision of Section 10 of the Act does not prevent a minor husband to be natural guardian of person of his minor wife or minor child.

In Munnediyil Perevakutty v. Kuniyedath Chalit Velayudham (1992 Ker 290), the Kerala High Court referred relevant principles in deciding the custodian of a minor as under:

i)                    there is a presumption in favour of the natural guardian whose claim should ordinarily be accepted;

ii)                    the claim should be rejected if he or she is not fit to be the guardian or if giving custody is not conducive to the child's welfare;

iii)                  capacity of the custodian to supply the necessities of the minor, to keep the minor in good health and to educate the minor,

iv)                  while the economic condition of the guardian is important, no less important is the fact that which of the rival claimants for the custody of the minor shows greater concern for the welfare of the child.

 

Normally, when the father is alive he is the natural guardian and is entitled to the custody of the minor children though in the case of a child under 5 years the mother has the right to custody of the minor by reason of the proviso.

 

Father's right to the custody of the minor children is neither an absolute nor an indefeasible one. The welfare of the child is the paramount consideration. The mother is to be given the custody of the minors if their welfare or interest should require it, even if the father is otherwise fit to act as guardian.

 

In Kumar V.Jahgindar v Chetana Ramatheertha (AIR 2004 SC 1525), the child in question was female of 9 years, and since her mother was married second time to a famous cricketer, she may leave the countr on tour with her husband during school days or vacation period of the child without taking the child with her, and the court held that instead of leaving the child to the care and custody of some other members of the family, the custody of the child, during her absence from her home, should be given to the natural father.

 

The mother has the right over the custody of child below the age of 5 years. But that right of the mother is not an absolute or indefeasible one. In Mohan v Sandhya (1993 Mad 59) it was observed that where the wife withdrew deliberately from the society of her husband, minor child less than 5 years of age was allowed to be in the custody of a father as he was from a respectable family and had sufficient means

 

In Varalakshmi v. Kanakadurga Prasad ((1989) 1 HLR 582 (AP)) it was held that the mother cannot be given custody though the child was less than five years where the minor was already living happily with father and it was not wise to disturb the existing state of affairs.

De Facto Guardian (Sec 11)

 

The Latin phrase 'de facto' means 'actual; in fact'. A de facto guardian means a self-appointed 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.

 

Hindu law, besides the three usual classes of guardians viz, a natural guardian, a testamentary guardian and a guardian appointed by the court recognized a de facto guardian as a fourth class of guardian.

 

A guardian de facto is a person who is neither a natural guardian nor a testamentary guardian nor a guardian appointed by a court but who actually manages the property of the minor and looks after person of the minor continuously for some time e.g. uncle or elder brother one solitary act of a person relating to the person or the property of a minor will not make a person a de facto guardian.

 

The Hindu Minority and Guardianship Act, 1956 does not recognize de facto guardians. Only the father of the minor and in his absence the mother of the minor is a natural guardian. The father and mother may appoint testamentary guardians for the person and property of minors. The law does not require any other person as a guardian or a de facto guardian Section 11 of the Act clearly states that after the commencement of the 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 fact guardian of the minor.

 

Powers of Natural guardian

 

The natural guardian of a Hindu minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate.

 

Old Hindu Law. Under the old Hindu Law, he could transfer any portion of the minor's property by mortgage or sale in case of necessity or for the benefit of the estate. In Hunooman Prasad Pandey v. Mst. Babooee. (1856) 6 MIA 393 the law was declared by the Privy Council thus:

 

"The power of the manager for an infant heir to charge on estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate."

The principle laid down in Hunooman Prasad Pandey v. Mst. Babooee was that the natural guardian could burden the minor's estate only in case of legal necessity or for the benefit of the estate.

 

Modern Hindu Law. The law enunciated in Hunooman Prasad's case has now after a century been modified by Section 8 of the Hindu Minority and Guardianship Act, 1956. Sub-section (1) of Section 8 lays down:

 

"The natural guardian of a Hindu minor has power, subject to the provisions of the section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant."

 

After passing of the Hindu Minority and Guardianship Act, 1956, the natural guardian has been empowered to do all such acts which are necessary for the welfare and benefit of the child. [Madhegowda v. Anke Gowda, (2001) 45 ALR 820 SC]

 

Sub-section (1) of this section lays down the rule relating to the general powers of a natural guardian. The natural guardian's power is made subject to the provisions of this section. Section 8 (2) of the Act provides limitation on the general powers of the guardian in dealing with the immovable property of the minor. Section 8 (2) reads:

 

"The natural guardian shall not without the previous permission of the Court

 

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or

 

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority."

 

Power relating to movable property. The natural guardian has power to pledge, sell or burden the movable property of the minor for the legal necessity of the minor or for the benefit of the minor's estate. The prior permission of the Court is not necessary for the transfer of the movable property. The Hindu Minority and Guardianship Act does not alter the natural guardian's power in respect of movable property of the minor.

 

Power relating to immovable property. In reference to minor's immovable property the power of natural guardian has gone under drastic change. Sub-section (2) of Section 8 provides that the natural guardian shall not, without the previous permission of the Court mortgage or charge, transfer by sale, gift, exchange or otherwise or lease any part of the immovable property of the minor. The exception, however, is given in case of lease for a maximum period of five years and which must not go one year beyond the date on which the minor will attain majority.

 

Power in respect of contracts.-Minor's contract is void. But if the contract is entered into on behalf of the minor by his guardian or by a manager of his estate that can be specifically enforced by or against the minor, if the contract is one which is within the competence of the guardian to enter into on his behalf so as to bind him by it, and further if it is for the benefit of the minor. But if either of these two conditions its wanting, the contract cannot be specifically enforced at all.

 

In Manik Chand v. Ram Chandra, AIR 1981 SC 519 the Supreme Court held that the contract entered into by the guardian on behalf of the minor for the purchase of immovable property is enforceable because the contract entered into was for the benefit of minor.

 

Power to compromise.-The natural guardian has the power to make reference to arbitration and to enter into a compromise on behalf of the minor. But if the minor's interest has not been protected and the guardian was found to have committed gross negligence, the compromise decree may be set aside, as it was held by the Supreme Court in case of Dhirendra Kumar v. Sugandhi Bai, 1988 RD 391 (SC).

 

Acknowledgement of debt.-A natural guardian has the power to acknowledge a debt or to pay interest on a debt so as to extend the period of limitation provided the act is for the protection or benefit of the minor's property. But he cannot revive a time-barred debt.

 

Family arrangements.-The natural guardian has the power to enter into family settlement on behalf of the minor provided it is in the nature of a bona fide compromise of doubtful claims.

 To make a reference to arbitration: The natural guardian has power to refer to arbitration disputes provided that such a course is for the benefit of the property of the minor but the mother has no right to refer a matter to the arbitration if the father is alive.

 To sue on behalf of minor: If for the purpose of recovering an amount due to the estate a suit has to be filed, he can institute the suit and incur the expenses of the litigation necessary to realize the debt due.

 Power of alienation: The natural guardian of Hindu minor has power in the management of the estate to sell or mortgage any part of the estate in case of necessity or for the benefit of the estate with the permission of the court.

 

Disabilities Relating to the natural Guardian

In certain situations, a natural guardian will have disabilities to act as a guardian. According to section 6 of the Act:

i)                    disabilities arising from apostasy (sec 6(a) proviso

Apostasy means the total renunciation of one's religion by embracing other religion or no religion at all. Change of religion or cessation of being a Hindu at once imports disability in a person from being the natural guardian of his minor child. However such a disability could be cured by getting an appointment made by the court.

 

Where a Hindu father converted to Islam and married to a Muslim girl, he ceases to be natural guardian in matters of legal right. In Vijaya Laxmi v. Inspector of Police (AIR 1991 Madras 31) it was observed that it would not be in the interest of minor child that a convert should continue as a natural guardian and exercise the power of a natural guardian as such course is detrimental to the interests of the child.

 

Section 6, proviso (a) of the Act completely debars a father from acting as the natural guardian after his conversion to another religion. In Albrecht (Dr) v. Bathee Jellamma (22 MLJ 247) it was observed that "A Hindu father who becomes a Christian is prima facie entitled to say in what religion his infant child should be brought up; but his wishes are not conclusive and the court may, where it would be injurious to the minor by giving effect to the father's wishes prevent him from altering the son's 'religion'.

ii)                   disabilities arising from civil death (sec 6 (b) proviso

According to proviso (b) to section 6 of the Act, no person is entitled to act as a guardian if he has completely and finally renounced the world by becoming a hermit or ascetic. The renunciation to operate as a disqualification must be both complete and final. The proviso (b) to section 6 of the Act would apply not only to the father and the husband but also to the mother who is also a natural guardian. Obviously, the legislature felt that it was not desirable to entrust guardianship to a person who has renounced the world. The mere fact that a person declares that he has become a sanyasi would not be sufficient to make him a perfect sanyasi. He has to perform certain ceremonies to become a sanyasi.

iii)                 disabilities owing to minority (sec 10)

Section 10 of the Hindu Minority and Guardianship Act, 1956, provides that a minor cannot be a guardian of his property. Although this provision will not be applied to joint family property, a minor may be a Karta in joint family as the Hindu Law does not prohibit it

 

iv)                  where the guardianship is prejudicial to the welfare of the minor (sec 13(2))

Under section 13 of the Hindu Minority and Guardianship Act. 1956, a court can appoint a guardian or declare any person as guardian of a Hindu minor. While appointing a guardian, the welfare of the minor shall be the paramount consideration.

In Reddy (CS) v. Yamma Reddy (1975 Kant 134) the court has observed that where there is a guardian the person who seeks to have the custody of the minor, has a heavy burden on him to show that the welfare of the minor demands that the custody shall be with him or her in preference to the natural guardian.

 

In Raj Kumar Mohant v. Indra Kumari (1972 MPLJ 775), the court stated that the term 'welfare' must be understood in its widest sense so as to embrace the material and physical well-being, the education and the upbringing, the happiness and moral welfare of the child.

Where the custody of a natural father cannot promote the welfare of the minor equally or better than the mother then the natural father can claim custody of minor. In Smt. Gangabai v Bherula, (AIR 1976 Raj 153) the court observed that he would not permit a person to act as a minor's guardian, if the court is of the opinion that his or her guardianship is not for the welfare of the minor and the custody of minor cannot be entrusted to the father, simply because he is a natural guardian. In Bhagwatibai v Yadava Krishna (AIR 1969 MP 23), it was observed that where a natural guardian has been wrongfully deprived of custody of his or her child the same can be restored through the writ of habeas-corpus,

Distinction between De jure Guardian (natural guardian) and D_{e} Facto Guardian

 

i) while the natural guardian is a de jure guardian and is recognized by the law, de facto guardian is not recognized by the law

 

ii) where as Sections 6 to 8, of the Act provide the definition, appointment and powers of natural guardian, section 11 of the Act abolishes the system of de facto guardianship

 

iii) the natural guardianship had been recognized by both old Hindu Law and the present Act of Hindu Minority and Guardianship Act, 1956, and the de facto guardianship was in vogue in old Hindu Law only.

 

iv) The natural guardian can alienate the minor's property subject to certain conditions, where as the de facto guardian has no power of alienation of minor's property

 

v) The natural guardian can perform contracts for the benefit of the minor where as the de facto guardian is not entitled to contract for minor

 

vi) The natural guardian has the right to acknowledge debt on behalf of the minor, to make reference to arbitration, or to make a gift of minor's property but the de facto guardian has no right to acknowledge debt on behalf of the minor, to make reference to arbitration or to make a gift of minor' property.

Distinction between the de facto guardian and Testamentary guardian

 

i) de facto guardian is not recognized by the Act, while testamentary guardian is a de jure guardian and recognized by the Act

 

ii) de facto guardian is self-appointed guardian while testamentary guardian is a guardian appointed by father or mother in his absence through a will

 

iii) Section 11 of the Act abolishes the system of de facto guardianship, while Section 9 of the Act provides some right to the testamentary guardian

 

iv) while the de facto guardian has no power to contact on behalf of the minor, the testamentary guardian can perform contracts for the benefit of the minor

 

v) de facto guardian is not considered a natural guardian but the testamentary guardian can step into the shoes of the natural guardian

 

vi) while de facto guardian has no power of alienation of any property of the minor, the testamentary guardian can alienate the minor's property with the permission of the court for the welfare of the minor.

Q. 14 (b). Has the court power to appoint a guardian for the minor's person and property? What matters does a court consider in appointing a guardian of a Hindu minor? What are the rights and powers of such a guardian? Discuss.

Or

Examine the power of the court with respect to the appointment of guardianship of a minor's person and property. What factors the Court takes into account in appointing a guardian of a Hindu Minor? Discuss the powers of such a guardian.

 

Ans. Certificated Guardian and his powers.-Appointment of guardian by the Court has been dealt in Guardians and Wards Act, 1890. However, Sections 12 and 13 of the Hindu Minority and Guardianship Act, 1956, also touch this subject.

 

Condition for the appointment of guardian by the Court Where the Court is satisfied that it is for the welfare of a minor that an order should be made

 

(a) appointing a guardian of his person or property, or both; or

(b) declaring a person to be such a guardian, the Court may make an Order accordingly.

 

In the appointment or declaration of any person as guardian of a Hindu Minor by a Court, the welfare of the minor shall be the paramount Consideration. The proceedings have to be taken for the benefit of the minor and minor alone. The welfare of the minor includes both material and spiritual welfare.

 

In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of the deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the Court may consider preference.

 

In Raichand v. Sayar Bai, AIR 1966 Mad. 173 the husband died leaving his minor widow aged 16 years. The father-in-law of the minor widow had interest in the property of the minor widowed daughter-in-law and in the amount due to her on account of insurance policy taken out by her husband. This interest of his conflicted with that of the minor widow. Moreover, in the policy the deceased husband had himself appointed the cousin brother of the minor wife as her guardian. She was in fact reluctant to go to her father-in-law's house because she was illtreated by her mother in-law. She also expressed her wish that her cousin brother should be appointed the guardian of her property. The Madras High Court appointed the guardian of her property and held that the preferential claim of the father-in-law cannot be considered since the welfare of minor would always prevail in appointing or declaring a person as the guardian of a minor.

 

In Smt. Mohini v. Virendra Kumar, AIR 1977 SC 1359 the appellant was the divorced wife of the respondent. The dispute was for the custody and guardianship of an eleven years son. As the son was the only child of her mother, and the mother was the only child of her well-to-do parents, the Supreme Court declared mother to be entitled to the custody and guardianship of the son eleven years old. The Court gave paramount consideration to the welfare of the minor son.

 

The interest and welfare of the child are certainly matters of paramount consideration. There is a presumption in favour of the natural guardian as opposed to the claim of persons who are not natural guardians unless there is evidence to suggest that the natural guardian is not a fit person to be guardian of his child or that, for other reasons it will not be in the interest of the child's welfare to entrust his custody to the natural guardian, the Court would ordinarily be inclined to accept his claim in preference to the claim of any other person. But after decision of Supreme Court in Smt. Mohini v Virendra Kumar, the proposition is now well established that even the preferential right of the father as a natural guardian should be subordinated to and even overriden by the sole consideration that the welfare of the minor is to be the determining factor in all these matters of guardianship.

 

A guardian need not be appointed merely because an application is made. The Court has to see whether with respect to the circumstances of each case any necessity for the appointment exists at all. In Chandrawati v. Jagannath, AIR 1928 Lahore 941 the step-mother of the minor sons was a young widow with little or no experience of business, and the deceased had left landed property and commission agency business. It was held that under the circumstances necessity for the appointment of guardian did exist because there was evidence that she could not manage it.

 

Rights and powers of guardian appointed by the Court

 

A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it, if it were his own, and he may do all acts which are reasonable and proper for realization of the property.

 

Bona fide guardian, shall not without the previous permission of the Court

 

(i) Mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of immovable property of his ward, or

 

(ii) lease any part of that property for a term exceeding five years, or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

 

The powers of the guardian appointed by the Court are similar to the powers of natural guardian conferred under Section 8 of the Hindu Minority and Guardianship Act, 1956. The Court may put up any restriction on the powers of such guardian while appointing a guardian of the minor.

 

Testamentary Guardian

 

Q. 14 (c). Who can appoint testamentary guardian? What are their powers?

Or

What do you mean by the Testamentary Guardian under the provisions of Hindu Minority and Guardianship Act? What are the powers of such guardian under this Act? Discuss.

Or

Discuss the provisions of Hindu Minority and Guardianship Act, relating to the Testamentary Guardians. Are their powers similar to those of natural guardians? Examine.

 

Ans. Testamentary Guardian.-Testamentary guardian is a guardian appointed by the will of the minors' father or mother. The Hindu Minority and Guardianship Act provides that the following persons are authorised to appoint guardian of the person and separate property of a minor by will:

 

1. The father, natural and adoptive.

2. The mother, natural and adoptive.

3. The widowed mother, natural and adoptive.

 

1.       Father. 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 minor's separate property, or in respect of both person and separate property. But if a Hindu father is not entitled to act as guardian of minor child because he became a convert or sanyasi, then he cannot appoint a guardian by his will. If the father executes a will to appoint a guardian, and if he dies in the lifetime of his wife, then the appointment will be of no effect and mother will be the guardian of minor, but in case the widowed mother of the minor dies without appointing any person as guardian of the minor the appointment made by the father shall revive.

In Shobha v. Janaki ((1988) 1 HLR 462 (MP)), the court held a Hindu father can appoint his wife or the child's mother as a guardian in the will executed by her. Where the father appoints the mother herself as the testamentary guardian, the mother will function not as the testamentary guardian but as the natural guardian of the minor after the death of her husband because the father's appointment can have no effect during the mother's life time as provided in sub-section (2) of section 9 of the Act.

 

A testamentary guardian appointed by the father in respect of the person and property of her minor daughter cannot function after she is married because on marriage, her natural guardian is her husband and he takes charge of the person and property of his minor wife as per sub section (6) of section 9 of the Act.

 

The power of the father to appoint a testamentary guardian with reference to the minor's property does not apply regarding the undivided interest of the minor in joint family property and this matter is governed by section 12 of the Act.

 

2. Mother. After the death of the father the natural guardian of a minor child is his or her mother. The mother also becomes natural guardian of the minor children, if the father becomes convert or sanyasi. The mother, may also appoint a guardian in respect of minor's person or in respect of minor's property or both by will. The Hindu mother may also appoint testamentary guardian in respect of her illegitimate children. The natural guardian of an illegitimate child is the mother, and after her the father.

3. Widowed mother.-A Hindu widow who is entitled to act as the natural guardian of her legitimate children may by will appoint a guardian for any of them in respect of the minor's person or property or both.

Who may be appointed a testamentary guardian.

 

Under section 10 of the Act, a minor shall not be appointed to act as guardian of the property of any minor. It is equally certain that a person who is of feeble mind or insane cannot be competent to act as the guardian of a minor, either of his person or property. Excluding these set of persons, there is nothing in the Act which limits the choice of a Hindu father or mother to appoint any person as the guardian under a will validly executed.

Powers of testamentary guardian:

Under the Hindu Minority and Guardianship Act, 1956, the testamentary guardian has all the powers of a natural guardian as restricted by the provisions of this Act and he has also to observe the conditions imposed on their exercise by the will.

 

A testamentary guardian appointed by the father or mother can act only after the death of the minor's father or the mother as the case may be. In the absence of any prohibition in the will against alienation of the minor's property, and alienation by the testamentary guardian for the benefit or necessary of the minor must have the previous permission of the Court, and the position of the natural guardian as provided for in section 8 of the Act and subject to conditions therein would apply to the testamentary guardian also. The testamentary guardian could not sell the property of the minor without the prior sanction of the court.

In T. V. Duraiswamy Naicker v. Balasubramanian, AIR 1977 Mad. 304 it has been held that one of the restrictions imposed on a natural guardian in respect of sale of minor property is contained in Section 8 (2) which requires the previous permission of the Court for selling the minor's property. The testamentary guardian therefore, could not sell the property without prior sanction of the Court. This is so even though Section 28 of the Guardians and Wards Act authorised the testamentary guardian to sell the property, as under Section 5 (b) of the Act, any other law in force immediately before the commencement of the Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in the Hindu Minority and Guardianship Act. Section 28 of the Gurdians and Wards Act, in so far as it authorises a testamentary guardian unlimited power of sale, is inconsistent with the provisions of Section 9 (5), read with Section 8. On the clear language used in Section 5 (b), therefore Section 28 will cease to have effect in so far as the power of the guardian to dispose of the minor's property was concerned without prior sanction of the Court.

 

Removal of Testamentary Guardian

 

Under Section 39 of the Guardians and Wards Act, 1890, a testamentary guardian can be removed by the Court. Some of the grounds for the removal of a testamentary guardian as enumerated in the said section are as follows:

 

(1) abuse of his trust;

 

(2) continuous failure to perform his 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 of an offence for moral turpitude;

(7) having an adverse effect;

(8) ceasing to reside within the local limits of the jurisdiction of the Court; and

(9) on being adjudged insolvent.

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

(i)                  if he has ceased to be a Hindu or

(ii)                 has completely and finally renounced the world by becoming a dem or an ascetic (sanyasi or yogi)