Introduction
The idea of guardianship in India is expressed in the Shastras and also in the Quran but with different objectives. It plays an important role in the development of child. It is pillared upon the protection and welfare of the child. The idea of guardianship is administered under the legitimate structure of the arrangements present in various personal laws i.e., Hindu Minority and Guardianship Act, 1956, Guardianship and Wards Act, 1890, Islamic laws and Parsi and Christian laws.
Define Guardian
The term guardian means the person who is concerned with the care of a minor, both his person and property. Section 4(b) of the Hindu Minority and Guardianship Act includes: “a natural guardian, a guardian appointed by the will of the minor’s father or mother, a guardian appointed or declared by a court, a person empowered to act as such by or under any enactment relating to any court of wards.”
The above-mentioned kinds are not exhaustive. Besides them, there are two more types of guardians namely: de facto and Ad hoc guardian. The former has been mentioned in the Act while the latter kind does not find any place.
Section 4(a) of the Act defines a minor as a 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 immature and hence needs someone’s protection.[1] It may be emphasized that in the modern law guardians exist essentially for the protection and care of the child and to look after his welfare.
Kinds and Powers Of Guardians
1. Natural Guardian (NG)
It is a person who takes care of the person and property of the minor by virtue of his nearness in the blood relationship. Section 6 of the Act covers the provisions for the natural guardians. The expression refers to the father and mother of the guardian and in the case of a married girl, her husband assumes to be her guardian. In the case of an illegitimate child, the first natural guardian is the mother and then the father. In the case of Suresh Babu v Madhu (1984) If the minor has not completed five years of age, the custody of the minor shall ordinarily be with the mother, but the father would still continue as guardian of the child. But welfare and best interest of the child is the supreme consideration and therefore, custody and guardianship can change according to facts and circumstances of the case.
Power of Natural Guardian (NG)
Section 8 of the Act deals with the powers of Natural guardians. It enumerates two kinds of power. One in respect of the person and property of his ward and second, powers which guardian may exercise subject to the control of the court. Apart from this, the section imposes two restrictions on him dealing with the property of the minor.
i. Necessary acts for benefit of the minor: This means that NG can exercise necessary control over the health, upbringing and education of the minor. Even, he can transfer any portion of the minor’s property by mortgage or sale in the case of necessity or benefit of the estate.[2] But not to such alienation which has been effected by the Karta for the child’s benefit.
ii. Reasonable and proper acts: These words sufficiently protect the minor’s interest by undertaking all those acts which are reasonable and proper in the best interest of the minor. Purchasing a property out of a minor’s estate income for his benefit is permissible.
iii. Realization, protection and benefit of minor’s estate: Any act done for the realization, protection or benefit of the minor’s estate will be upheld by this section. He can acknowledge a debt which is binding on the minor but cannot revive a time-barred debt. In short, any act done for a minor’s benefit can be considered reasonable and proper. But in case of transfer of property then the guardian needs to obtain the previous sanction of the court.
iv. Personal Covenant: The guardian has no power to bid the ward personally. He cannot contract in the name of a minor so as to impose any personal liability in the future. However, The Madras High Court held in Natesa v. Manicka that “the creditor cannot in such cases enforce his claim against the minor personally but may enforce it against his property subject to the condition that this right of recourse of the creditor is not claimable where the creditor is not able to show that on a general taking of account between the minor’s estate and the guardian, an amount would be due to the guardian from that estate”.
2. Testamentary Guardian (TG)
It is the one who is appointed by Will of the Natural Guardian. This kind will assume its place only after the death of the Natural Guardian. Section 9 of the Act relates to the Testamentary guardians and their powers. TG is appointed by the NG i.e father and mother both. In case the father dies then the mother has the power either to allow the father’s nomination or change it. If she changes then, the newly appointed guardian serves as TG. Both father and mother have the power to appoint TG for their minor child.
Powers
According to Section 9 (5), a Testamentary guardian has indistinguishable power just as Natural Guardian and can exercise all the powers that were vested in the Natural Guardian subject to restrictions of Act and the Will. The powers are the same except that power of TG to deal with property is also subject to restrictions imposed by the Will. Since the powers of the TG are similar to that of NG, it is relevant to know Section 8 of the Act. He has the power to alienate the minor’s property only for the minor’s benefit. But, he has to seek the permission of the Court before doing so.[3]
3. Legal Guardian
A legal Guardian is a person appointed by the Court for the Welfare of the minor, both of person and property. The court may make an order under the Guardian and Wards Act, 1890 appointing a guardian. Such an order must be after Court’s due satisfaction. The welfare of the minor is of paramount importance while declaring a person as Guardian.[4] In fact, the Hindu Minority and Guardianship Act is supplementary to and not in derogation to the Guardians and Wards Act.
Powers
The powers are controlled by the Guardians and Wards Act, 1980. He has to perform the act with the permission of the Court. There are very few acts which he can bring about without prior permission. His powers are co-extensive. With the power of the sovereign and may do all the things which the sovereign has the power to do. In short, his power is the same as that of a natural and testamentary guardian.[5] Also, he is under the control and supervision of the Court.
4. De facto Guardian
Section 11 of the Act deals with de facto guardian. When a minor child has no legal guardian then some nearer relation tale the responsibility of the management of his property. He has no authority in law but nonetheless, he himself has assumed the management of the property of the child as though he were a guardian. He had no lawful authority but can dispose of the property in case of any emergency. The Privy Council in Hanuman Prasad Singh and Ors v. Bhaguati Prasad Singh and Ors[6], said that “under Hindu law, the right of a bona fide incumbrancer, who has taken a de facto guardian a charge of the 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.”
Powers
Section 11 of the Hindu Minority and Guardianship Act, 1956 prohibits a de facto guardian to deal with the 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.” Now it has been well settled that de facto guardian is not equipped with the right to assume debt, or to gift a minor’s property, or to make any reference to arbitration.
5. Ad-hoc Guardian
Ad-hoc means temporary. When a person acts as a guardian of the minor for certain particular purposes, he would be known as an ad-hoc guardian. Such a kind of guardian does not find any place in the Act.
Powers
Since they are not recognized by the Act, any alienation of the minor’s property by him would be void. The Madras High in case[7] observed that “the position in law of Ad hoc guardians is that their acts are null and void and cannot bind the minor, although they are purported to be effected in minor’s interest, for Ad hoc guardians are neither de jure nor de facto guardians”.
[1] http://www.ijcrt.org/papers/IJCRT1705302.pdf
[2] Hanumanprasad v. Mussumat Babooee, 6M.I.A. 393
[3] T.V Duraiswami v E. Balasubramanium
[4] Mohini v. Virendra, AIR 1977 SC 1359: 1977(3) SCC 513
[5] https://www.srdlawnotes.com/2017/11/guardian-appointed-or-declared-by-court.html
[6] (1897) ILR 19 All 357.
[7] Sri Aurobindo Society, Pondicherry v. Ramadoss Naidu AIR 1980 Mad 216.
This Article is Authored by Chinmaya Gupta, 3rd Year BBA.LLB Student at Symbiosis Law School, Noida.
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