FAMILY LAW PROJECT On HINDU GUARDIANSHIP

By: Christy Alex V th Semester

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Acknowledgement

I am very thankful to everyone who all supported me, for I have completed my project effectively and moreover on time. I am equally grateful to my teacher Dr. Dr Kahkashan Y. Danyal .She gave me moral support and guided me in different matters regarding the topic. She had been very kind and patient while suggesting me the outlines of this project and correcting my doubts. I thank her for her overall supports. Last but not the least, I would like to thank my seniors who helped me a lot in gathering different information, data and guiding me from time to time in making this project ,despite of their busy schedules ,they gave me different ideas in making this project unique.

Thanking you
Christy Alex B.A.LL.B(HONS.)5th sem JAMIA MILLIA ISLAMIA

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Table of Contents

S.No. 1. 2. 3. 4. 5. 6. 7. 8. 9. Introduction

Particulars

Page no. 4 5 7 26 34 36 39 43 44

Historical Background Guardianship of Person Necessity of appointing guardian- requisite Guardian de facto and guardian ad hoc Guardianship by Affinity Case Laws Conclusion Bibliography

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INTRODUCTION

The Dharmashastras did not deal with the law of guardianship of minors in any detail. The texts are few and scanty. The texts do speak of according protection to property of orphan-minors but not of minors whose parents are alive. Very little is said about the guardianship of the person of the minor. The broad principle is recognized that the king is the supreme guardian (Parens Patrie) of all the minors within the realm. No other sage except Narada mentions father and mother as guardian. It seems that two facts were responsible for the lack of any developed law of guardianship. The minor children mostly lived in the joint family and were always under the protection of the Karta. Even after the death of the father, the child was not without protection; whosoever was the Karta protected the child. Even if a child was outside the pale of the joint family, he, if belonged to the first three classes, had to go to Gurus Ashram for study and was under the protection of the Guru. Thus there was no need for the law of guardianship of the person. The question of guardianship of minors property of such children, the general rule was laid down. The king as the supreme guardian protected all the children and their property within the realm.

During the British regime the law of guardianship was developed by the court. In the initial period of British administration of justice, the courts fell prey to the learning of M/s. Strange and Macnaughten who came out with the formulation that natural guardian of a Hindu minor are: father, mother, elder brother, other paternal relations and the maternal relations1. But later, when reappraisal of texts was made, the court held that the father was the natural guardian of the children and after his death mother is the natural guardian, and no one else can be the natural guardian of minor children2. On the analogy of English law, testamentary guardians were also introduced in Hindu law. It was also accepted that the supreme guardianship of the minor children vested in the king as Parens Pratie3 and was exercised by the courts.

The Guardians and Wards Act was passed in 1890 and conferred on the District Courts power of appointing guardians of minor children belonging to any community.

The Hindu law of guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956.

1 2

Thramanna vs. Apian, (1926) 49 Mad. 768; Nathuram vs. Soma, (1890) 14 Bom. 562 Kristo vs. Kedar, 2 C.L.R. 563; Purshotam vs. Brundavan, 1931 Mad. 537; Chennapa vs. Onkarappa, (1940) 2 Mad. 358; Jiwan vs. Salindra, 1945 Cal. 273 3 Banku vs. Banke, 1943 Cal. 203; Budh vs. Thakar, (1942) 1 Cal. 19

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HISTORICAL BACKGROUND

So far as could be traced, the concept of guardianship appears to date back to the time of the Vedic age, when for the practical purposes the Hindu family was a patriarchal one, with considerable owers resting with the hands thereof, in matters relating to infants, who were, in those days, considered as the property of the father, who was never called guardian. Children so to say, were then under the full control of the father. Acquisition, or holding or independent separate property was not possible for them and the properties belonged to the father. But at some point of time separate self acquired property of sons comes to be recognized. As stated by N.C. Sengupta on The Evolution of Law- In second place we find the sons right to separate self acquired property becoming gradually recognized in early law. The gains of was such as (Sauryyadhanam), the gains of learning (Vidyadhanam), the property of the wife (Bharyyadhanam), and the affectionate presents made by the father (Pitriprasad) are the first to be looked upon as the exclusive property of the sons. In course of time however we find other items of self acquired property of sons over which the father had no right of ownership, till ultimately the general principle is enunciated that whatever is acquired by a person by his own efforts without detriment to the family property belongs exclusively to the acquirer.

No doubt, it was the fathers right to give his daughter in marriage, but exercise of choice in the matter by the daughter was also prevalent. In those days, the wife was given a position of near subjugation under the husband and in the Rig Veda there are instances of her being treated as near chattel. The Vedas imposed on the father the legal obligation of maintaining his children.

The above Hindu concept has not only primarily influenced, to a great extent, Roman and English concepts in this matter but has influenced other nations also. In later times however both Roman and English concepts appear to have influenced the Hindu law in matters relating to development of the concept of guardianship.

Similarity between the head of the Hindu family and Roman Pater Familias became more apparent during the later days of the Dharmashastra period, but a remarkable distinction was maintained between them by the sages imposing and emphasizing moral and legal duties on paternal powers, which underwent further moulding when the sages like Manu, Vasistha and Gaotama mentioned the king as the protector of minors property. As stated by Mayne on Hindu Law and Usage- The Hindu law vests the guardianship of the minor in the sovereign as Parens Patriea. Necessarily this duty was delegated to 5|Page

the childs relations. Of this the father, and next to him the mother, is his natural guardian. In default of her, if she is unfit to exercise the trust, his nearest male kinsmen should be appointed, the paternal kindred having the preference over the maternal. Of course in an undivided family, governed by Mitakshara law, the management of the whole property, including the minors share, would be vested in the nearest male and not in the mother. Narada Made a further modification when he mentioned that the consecutive authority of the father, mother and elder brother over the minors property was regulated by the king keeping the consideration such requirement for the benefit of the minor. The writers of different treaties on Hindu law have indicated the order of natural guardians of a minor as the father, the mother, the elder brother, over the minors property was regulated by the king keeping in consideration such requirement for the benefit of the minor. The writers of different treaties on Hindu law have indicated the order of natural guardians of a minor as the father, the mother, the elder brother, paternal relations, and maternal relations according to the degree of proximity, the power of appointment remaining always with the king (the ruler). Later judicial opinions did not, however, accept this order fully. In the case of Jiwan Krishna vs. Sailendra4, the Calcutta High Court observed that there is nothing in Hindu law regarding any arrangement of natural guardian of minors. In Kristo Kishore vs. Kedarmoyee5 the Calcutta High Court held, in absence of any appointment by the father, selection of a guardian is a matter of the court. Similar views were expressed by the Madras High Court in Purushotma Rathi vs. Brundavan6, and in the Full Bench decision in Chemmapat vs. Onkarappa7. In the Mitakshara joint family, the person and ancestral property of the minor were in the case of the Karta. On the death of the father of a minor, therefore there could arise no question of appointment of a guardian for the care and protection of the minor and his interest in the coarcenary. The king, however, had complete control when such a minor had self acquired property or when he was an orphan. The Calcutta High Court uniformly took the view that Hindu law vests the guardianship of the minor in the sovereign as parens patrea 8. In Annie Beasant vs. Naraniah9 the Judicial Committee pointed out the similarity between the English and the Hindu law as the father is the natural guardian of minor children under both these laws. Supremacy of the father in matters relating to guardianship of minor children was established in various judicial decisions and ultimately codified U/S-18 of the Guardians and Wards Act, 1890. The mothers position is next to the father. The Supreme Court in Jiju Bai vs. Pathankan10, , expressed the view that in case of incapability or refusal of father to function, the powers and functions of the natural guardian could be exercised by the mother without being appointed as a guardian. The latest legislation in this respect is the Hindu Minority and Guardianship Act, 1956 which has introduced various changes, which are more like additions to and classifications of the provisions of the Guardians and Wards Act, 1890 and not suppression thereof.

4 5

AIR-1946, Cal-272 2 CLR-563 6 AIR-1931, Mad-597 7 1904) 2Mad 358(FB 8 Banku Behari Mandal vs. Banku Behari Hazra, AIR-1943, Cal-203) [Budhkaran Chowkhari vs. Thakur Prasad Shah (1942) 2Cal-19 9 41 IA 314 10 AIR-1971, SC-315

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GUARDIANSHIP OF PERSON The king shall protect the inherited (and other property) of a minor, until he has returned (from his teachers house) or until he has passed his minority- Manu VIII, 27.

Till the eighth year a child is comparable (for legal purposes) to one in its mothers womb. Till he attains the age of sixteen he is called a minor (poganda). Then he becomes sui juris (vyaharagna)- Narada III, 35, 36.

Guardianship is conceived originally was, in most systems, as an extension of paternal power. But in modern law, it essentially implies an idea of protection. Under the Hindu Minority and Guardianship Act, 1956, Sec. 4(b), minor means a person who as 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 some ones protection. In the modern laws of most countries, the childhood is accorded protection in multifarious ways. Guardian is a person having the care of the person of the minor or of his property or both person and property. It may be emphasized that in the modern law guardians exist essentially for the protection and care of the child and to look after its welfare. This is expressed by saying that welfare of the children is of paramount consideration. Welfare includes both physical and moral well-being.

Minor: - In England the term infant is generally used for minor, but there, for the purpose of certain proceedings, a distinction is made between infant and minor, the former being under seven years and later between seven and twenty-one years of age.

Under the English law infancy, for cases of both male and female, means the period before completion of 21 years. In the matter of attainment of majority the law recognizes no fractions of a day and therefore, the year is regarded as completed on the first instant of the day before the birthday. Thus an infant born on February 1 attains his majority on January 31.

There is a difference of opinion among the Hindu writers as to the age of majority under Hindu law. According to some writers, majority terminates at the completion of the fifteenth year, according to

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others, at completion of sixteenth year. The former view is held in Bengal11 . This difference has lost much of its importance since the passing of the Indian Majority Act, 1875, which applies to all persons domiciled in India, and to all matters except marriage, dower, divorce and adoption. According to that Act, every minor for whose person a guardian has been appointed by any court and every of whose property the superintendence has been assumed by a court of wards is deemed to have attained his majority at the completion of the twenty-first year; and in all other cases, at the completion of the eighteenth year.

Sec. 4(a) of the Hindu Minority and Guardianship Act, 1956 defines a minor as a person who has not completed the age of 18 years. The said definition is principally intended to be meant for the purposes of that Act. The age of majority for the purposes of appointment of guardians of person and property of minors according to Mohammedan law is also completion of 18 years.

Guardians: - The word guardian has been so defined as to mean any person having the care of the person of a minor or of his property or of both. The Act, therefore, relates to guardians generally, except, where it is expressed to relate to the particular classes of guardian- statement of objects and reasons. Persons holding the property of minors share by virtue of a will must be deemed to have been persons having the care of the minors property within sec. 4, clause- (2)12 .

The word used in defining guardian is care, there is no mention of the word custody. Care indicates looking after in a wider sense than custody which is simply physical keeping. A guardian does not cease to be so by entrusting the custody and education of his children to another.

In modern law the idea of protection is indicated by guardianship. Guardian is now one who protects the person and/or property of a minor.

11

Cally Churn vs. Bhuggobutty (1873) 10 Beng. L.R. 231 F.B.; Mothoormohun vs. Soorendro (1876) 1 Cal. 108]; the latter view, in other parts of India [Shvji vs. Dattu (1875) 12 Bom. H.C. 281.290; Reade vs. Krishna (1886) 9 Mad. 391. 397-398 12 Narsing vs. Hem Raj, AIR 1934, Lah. 323; 154 IC 710

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Under the definition clause, the word guardian has been used in a very wide sense, such a person need not necessarily be a statutory guardian appointed or declared under this Act, but includes a testamentary guardian, natural guardian or even a de facto guardian or a guardian appointed by the court13 . These cases, it appears, have taken a view different from Sydney High Court vs. Morgan14, where Mukerji and Mitter. JJ., doubted if guardian in sec. 25 of the Guardian and Wards Act could include any class of guardian other than the one appointed or declared by the court. This Act does not contemplate guardians for marriage, nor does it interfere with their rights15 . The Calcutta High Court in Monijan Bibi vs. District Judge16, however, held that if a guardian for marriage tried to dispose the child in marriage contrary to its interest, the court could intervene.

The Guardians and Wards Act contemplates only the appointment of a person, i.e., an individual as guardian. A charitable society is not a person within the meaning of sec. 4 of the Guardians and Wards Act, and it cannot be appointed as guardian of the property of a minor17 . Even the secretary of a society as such cannot be appointed as guardian in his individual capacity. The other view is that regard being had to the definition of person in the General Clauses Act, there is nothing in this Act to prevent a registered society from being appointed as a guardian of a minor. Guardians may be divided into three classes, namely-

1. Natural guardian; 2. Guardians appointed by a father by will or testamentary guardian; and 3. Guardians appointed(i) under the Guardians and Wards Act, 1890 by a District Court or by a Chartered High Court in the exercise of its ordinary original civil jurisdiction; or (ii) by a Chartered High Court in the exercise of its inherent powers.

13 14

Rajarajeswari vs. Sankarnarayana AIR 1948, Mad 155; Ram Shankar vs. Shyama AIR 1954, All 690: 1954 All LJ 296 AIR 1931, Cal 563 15 Archratlal vs. Chammanlal 40 Bom 600 16 42 Cal 351 17 Ashalata Roy vs. Society for Protection of Children in India, 58 Cal 1: 51 CLJ 272: 126 IC 707: AIR 1930 Cal 397; McSweeney vs. Arbuthnot 35 CWN 158 (160): 121 IC 636: AIR 1931 Cal 563

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I. Natural Guardian: - In Hindu law only three persons are recognized as natural guardians, father, mother and husband.

Sec. 6 of the Hindu Minority and Guardianship Act, 1956 says, Father is the natural guardian of the minor legitimate children, son and daughters. Sec. 19 of the Guardians and Ward Act, 1890, lays down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. The effect of this provision has now been considerably whittled down by judicial decisions and by sec. 13 of the Hindu Minority and Guardianship Act which lays down that welfare of the minor is of paramount consideration and fathers right of guardianship is subordinate to the welfare of the child18. Before 1956 the father could prevent mother from assuming the guardianship of her minor children even after his death by appointing a testamentary guardian. This cannot be done now. The Act lays down that if the father appoints a testamentary guardian and mother survives him, the appointment of testamentary guardian will be ineffective so long as the mother is alive. If mother dies without appointing a testamentary guardian, the fathers appointee will become the guardian. But, if mother dies after appointing a testamentary guardian, the mothers appointee will take over guardianship of the child and the fathers appointment will be ineffective *Sec. 9(2)+.

Guardianship of property where family is joint: - If the minor is a member of a joint family governed by the Mitakshara law, the father as Karta (manager) is entitled to the management of the whole coparcenary property including the minors interest. After the fathers death, the management of property, including the minors interest therein, passes to the eldest son as Karta. The mother is not entitled to the custody of the undivided interest of her minor son in the joint property, because such property is not separate property, though she is entitled to the custody of his person and of separate property, if any19.

If all the sons are minors, the court may appoint a guardian of the whole of the joint property until one of them attains majority 20, specially when the widows of the father were quarrelling among themselves21. On any one of the sons attaining majority, the guardianship of the property constituted by

18 19

Lalta vs. Ganga, 1973 Raj. 93 Gharib Ullah vs. Khalak Singh (1903) 25 All. 407, 30 I.A. 165; Virupakshappa vs. Nilgangava (1895) 19 Bom. 309 (F.B 20 Bindoji vs. Mathurabai (1906) 30 Bom. 152; Narasamma vs. Satyanarayana (1951) 1 M.L.J. 436 21 Seethabai vs. Narashima (1945) Mad. 568; Rakhmabai vs. Sitabai (1952) 54 Bom. L.R. 55

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the court ceases, and the court is bound to hand over the joint family property to the adult son, notwithstanding the fact that the other sons are minor22.

There is no rule of Hindu law that the managing member of an undivided family should be an adult. He may be a minor in which case he is competent to act as guardian not only of his own wife and children but also the wife and children of another minor member of the family (sec. 21, Guardians and Wards Act, 1890).

Guardianship of a married female: -

(1) The husband is the lawful guardian of his minor wife [Dhuronidhur in the matter of (1890) 17 Cal. 298] and is entitled to require her to live with him, however young she may be, unless there is a custom enabling the wife to live with her parents until she has arrived at puberty [Arumuga vs. Viraraghava (1901) 24 Mad. 225].

(2)After the husbands death, the guardianship of the wife, if she is a minor, devolves on the husbands relations in reference to her paternal relations23. But if the husbands family be extinct, or contains no male, her father or the kin of the father are the guardians of the widow [Annapurnamma vs. Ramanajaneyaratnam (1959) A.A.P. 40. 46.].

In Ethilavulu vs. Pethakkal, (1950) A.M. 390, the Madras High Court held that in default of the husband no other person is entitled to act as guardian de jure of the minor wife.

Guardianship of an adopted son: - The guardianship of an adopted son who is a minor passes on his adoption from his natural father and mother to his adoptive father and mother24.

Guardianship of an adopted daughter: - The Hindu Minority and Guardianship Act, 1956 only speaks about the natural guardianship of an adopted son and does not refer to any adopted daughter. The Act

22

Chandrapal Singh vs. Sarabjit Singh (1936) 11 Luck. 67. 154 I.C. 855; Yenumula vs. Chitrapu Buchi Venkayya Pantulu (1949) 2 M.L.J. 774 23 Khudiram vs. Bonwari Lal (1889) 16 Cal. 584; Ashwini Kumar vs. Fulkumari Dasi, 77 Cal. W.N. 349 24 Sreenrain vs. Kishen (1873) 11 Beng. L.R. 171. I.A. Sup. Vol. 149. 163; Lakshmibai vs. Sridhar (1879) 3 Bom. 1

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came into force before the passing of the Hindu Adoptions and Maintenance Act, 1956, and the general Hindu law as administered by the Courts did not recognize an adoption of a daughter. The Hindu Adoptions and Maintenance Act now recognize adoption of a daughter and confer the right both upon a male Hindu as well as a female Hindu (Sec. 7). Sec. 12 of that enactment rules that an adopted child shall be deemed to be the child of his/her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. There are exceptions to the application of this legal fiction but they do not touch the subject of guardianship. The effect of that section would seem to be that the adoptive father and the adoptive mother would be regarded as the natural guardian of the adopted child in consonance with the rules relating to the law of adoption laid down in that Act.

Guardianship of the illegitimate children: - The mother is the lawful guardian of the illegitimate children25. It was held by the High Court of Lahore that where the father is known he has the preferential right [Prem Kaur vs. Banarasi Das (1934) 15 Lah. 630. 156 I.C. 87]. This view has been dissented from by the High Court of Madras in Rajlakshmi vs. Ramachandran26.

Remarriage of mother: - A Hindu widow does not by the mere fact of her remarriage lose her right of guardianship, in any case where remarriage is recognized by the custom of the caste to which she belongs27.

Loss of Caste: - Under the Hindu law, loss of caste entailed a loss of the right of guardianship of the person and property of minors. But it is no longer so since the passing of the Caste Disabilities Removal Act, 185028.

Change of religion by father: - The fact that a father has changed his religion is of itself no reason for depriving him of the custody of his children29.

But if at the time of conversion, the father voluntarily abandons his parental rights, and entrusts the custody of his child to another person in order that it amy be maintained and educated by him, the
25 26

Venkamma vs. Savitramma (1889) 12 Mad. 67. 68; Saithri in the matter of (1891) 16 Mad. 307. 317 (1967) A.M. 113 27 Ganga vs. Jhalo (1911) 38 Cal. 862. 10 I.C. 69; Mst. Indi vs. Ghania (1920) 1 Lah. 146. 53 I.C. 783 28 Kanahi Ram vs. Biddya Ram (1878) 1 All. 549; Kaulesra vs. Jorai (1906) 28 All. 233 29 Muchoo vs. Arzoon (1866) 5 W.R. 235; Shamsingh vs. Santabai (1901) 25 Bom. 551. 555

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court will not restore back the custody of the child to the father, if such a course is detrimental to the interest of the child. In such a case the court should be guided by what he conceives to be best for the welfare and well-being of the child30.

Change of religion by mother: - A child in India, under ordinary circumstances, must be presumed to have his fathers religion, and his corresponding civil and social status; and it is, therefore, ordinarily and in the absence of controlling circumstances, the duty of a guardian to train his infant ward in such religion. Therefore, where a Hindu mother changes her religion, the court may, if it deems to be interest of the minor, remove the child from the custody of the mother, and place the child under a Hindu guardian [Skinner vs. Orde (1871) 14 M.I.A. 309. 323].

Change of religion by the minor: - Where a Hindu child, who has become a convert to Christianity or any other religion, leaves his parents, and proceeding are instituted by the parents for the custody of the child, the question arises as to what is the true principle by which the Courts should be guided is such cases. Is it that the minor, if he is old enough to form an intelligent preference, should be allowed to exercise his own discretion as to where he will go? Or, is it that the parents are entitled as of right to the custody of the child, irrespective of his wishes? Or is it that the Court should in each case do what it conceives to be for the welfare and interest of the child? The first view was taken in the earliest decision on the subject. Then came a series of case in which the second view was taken 31. The last view is the one now taken by the High Court of Bombay32, Calcutta and Allahabad33.

Powers of the natural guardian: -

Alienations by natural guardian: - The natural guardian of a Hindu minor has power in the management of his estate, to mortgage or sell any part thereof in a case of necessity or for the benefit of the estate34. If the alienee does not prove any legal necessity or that he made legal enquires, the sale is invalid35. The power of a manager of a joint family to make a suitable provision in connection with the marriage of a daughter of the family in the shape of a gift of a small portion of the family property cannot be exercised by the widow, acting as guardian of the son, who is the owner of the property36 . During the fathers
30 31

Mokoond vs. Naobodip (1898) 25 cal. 881; Joshy Assam, in the matter of (1896) 23 Cal. 290 The Queen vs. Nesbitt (1853) Perrys O.C. 103; Reade vs. Krishna (1886) 9 Mad 391 32 Saithri, in the matter of (1891) 16 Bom. 307 33 Sarat Chandra vs. Forman (1890) 12 All. 213 34 Hunooman Persaud vs. Mussumat Babooee (1856) 6 M.I.A. 393. 412; Soonder Narain vs. Bennud Ram (1879) 4 Cal. 76 35 Malappa Anant Balakrishna (1936) 38 Bom. L.R. 941. 166 I.C. 154]. 36 Palaniammal vs. Kothandarama Goundan (1944) Mad. 418

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lifetime the mother cannot act as a legal guardian and hence a sale by her of minors share in land would be void37 .

Hunooman Persaud vs. Mussumat Baboee38: Brief Fact: -Inderdowun Singh was the propeitor of the Raj of Porgunna Munsoor Nugger Bustee. He was a minor. On behalf of him, his mother Rani Degumber Koommaree used to maintain the estate. As a natural guardian, she executed certain documents in favour of Hanooman Prasad Pandey, the creditor on several dates. Inderdowun Singh, after attaining majority, sued the creditor Hanooman Prasad Pandey and his mother Rani Degumber Koommaree alleging that the Rani signed the documents without seeing them being she was a pardanasin lady, and under the fraud and collusion of the creditor/appellant Hanooman Prasad Pandey. Therefore he contended that the mortgage deeds and other documents executed by his mother in favour of the creditor during his minority were null and void. During the trial Inderdowun Singh died. His minor son Lal Seetia Bux Singh, under the guardianship of his mother Babooee Munraj Kunwaree continued the proceedings. The trial of the case was conducted by the Sadar Ameen of Gorakhpure, who decided in favour of the appellant-creditor. On appeal Sadar Court reversed the decision of the Trial Court, and gave the judgment in favour of the minor. The creditor-appellant appealed to the Privy Council.

Judgment: - The Privy Council gave the judgment that Rani Degumber Koommaree executed the documents only in her capacity as guardian, and those documents were valid in the eye of law. The Judicial Committee said: The power of the manager for an infant heir to charge an estate not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. Their Lordship thinks that the lender is bound to enquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged, sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under the circumstances, he is bound to see to the application of the money.

Principles laid down: - This is one of the most important case-law relating to Hindu guardianship. Prior to enacting the Hindu Minority and Guardianship Act, 1956, the Courts used to follow the principles laid
37 38

Aurobindo Society vs. Ramadoss Naidu (1980) A Mad. 216 (1856) 6 M.I.A. 393. 423

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down in this case. The powers of the guardians of a minors property were governed by the rules of this case. The important principles laid down in this case law were(1) The guardian of a minor can exercise the power to charge an estate of minor. However, it can only be exercised rightly in cases of need or for the benefit of the estate. (2) The bona fide creditor was not affected by the precedent mismanagement of the estate. (3) If the property of the minor mismanaged, and the creditor was one of the parties in that mismanagement, he was not allowed to take advantages from the mortgage or charge of the said properties. (4) The creditor had to enquire into the necessities for the loan and should satisfy the genuineness of the loan. (5) The creditor was not bound to see the application of the money advanced unless he entered in the management. (6) It was the sons pious obligation to discharge the fathers debt. The Courts had to enquire the nature of the debt, and not the nature of the estate.

Contract by natural guardian: - 1. A natural or even a de facto guardian has always the power to discharge, mortgage or sell the properties of the infant on grounds of necessity of benefits of the minor. This law is well settled by a long course of decisions since Hunooman Persaud Pandeys case. There is a conflict of opinion however on the point as to whether the same principle applies to cases of simple loans contracted by a natural or de facto guardian of a minor either under a suitable bond or a promissory note.

2. It is not within the competence of a guardian of a minor to bind the minors estate by a contract for the purchase of immovable property for the minor. As the minor is not bound by the contract, the minor cannot claim specific performance of the contract. This was laid down by the Privy Council in Mir Sarwarjan vs. Fakhruddin39 and the principle has been followed in a number of subsequent cases by the different High Courts in India40 .

3. No act done by a person who is the guardian of minor binds the minor, unless the act was done by him in his capacity of guardian. It is a question of fact in each case whether a particular act done by a person was done by him in his capacity of guardian or on his own behalf and on his account. In the
39 40

39 I.A. 1. 39 Cal. 232 Sohan Lal vs. Atal Nath, 56 All. 142; Chodavarapu vs. Chennuru (1920) A.M. 423

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former case, the act binds the minor, provided it was otherwise within the power of the guardian; in the latter case, it does not. The mere fact that the name of the minor is not mentioned in a contract, or in a deed of sale or mortgage, is not conclusive prove that the transaction was not entered into on behalf of the minor. In each case the language of the document and the circumstances in which it was executed must be considered41 .

Compromise by natural guardian: - It is competent to a guardian to enter into a compromise on behalf of his ward [Nirvanaya vs. Nirvanaya (1885) 9 Bom. 365; Sant Bhusan Lal vs. Brij Bhusan Lal (1967) A. Delhi 137].

Acknowledgment of debt by guardian: - The natural guardian of a minor as well as a guardian appointed under the Guardians and Wards Act, 1890, 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 was for protection or benefit of the minors property; but he had no power to revive a debt which was barred by limitation. Sec. 20 (3) (a) of the Limitation Act, 1963 includes the lawful guardian in the expression agent duly authorized in his behalf occurring in Sections 18 and 19 of the Act.

II. Testamentary guardian:-

Tutores testamentari was one of the four classes of guardians, known as tutors under the Roman law. Testamentary guardians appointed by the will of pater familias, had precedence over statutory guardians. Father of minor being alive no guardian could be appointed for the grandchildren. Under the German law a grandfather could be a guardian only when there is failure testamentary guardian. Both under French and German law parents can appoint guardian by will. In ordinary meaning of the English language guardian means the guardian of the childs person, and it is particularly so when guardianship is contrasted with the executorship of the property. Under the English law on the death of one parent of a minor the surviving parent could become guardian either alone or jointly with the testamentary guardian appointed by the deceased parent (Guardianship of Minors Act, 1971). Both parents have equal powers by deed or will to appoint any person as guardian after their respective deaths and any guardian so appointed acts jointly with the surviving parent so long as the survivor remains alive and provided that the survivor does not object to his so acting. Testamentary guardianship may be expressed to continue during the minority of the child or for any shorter period and any number

41

Indur Chander vs. Radhakishore (1892) 19 Cal. 507, 19 I.A. 90; Nathu vs. Balwantrao (1903) 27 Bom. 390

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of guardians may be appointed. The mother of an illegitimate child has the exclusive right to appoint a guardian42 .

Guardian appointed by will: - 1. A Hindu father may, by ward of mouth or by writing, nominate a guardian for his children, so as to exclude even the mother from the guardianship [Deba Nand vs. Anandamani43. The mother, however, has not the power to appoint a guardian by will44 , but the court may have regard to her wishes, if any expressed in her will.

1. The power of the testamentary guardian to deal with property belonging to his ward is subject to the restrictions imposed by the will45 . The father can, by his will appoint a guardian both of the person as well as the property of the minor daughter. On the marriage of the daughter, the husband becomes the guardian of the person but the testamentary guardian continues to be the guardian of her property46 .

2. As regards guardianship of joint family property, there is a conflict of opinion whether the father of a joint family consisting of himself and his minor son has power to appoint a guardian by his will of the joint property during the minority of the son. In an earlier Bombay High Court case it was held that that he had no such power47 . In a later Bombay High Court case, it was held that he had power to appoint such guardian and also to authorize him to alienate the joint property, and that, where an alienation was made, it was binding on the minor sons, provided it was within the scope of the authority conferred upon him by the will48 . A full Bench of the Bombay High Court has now adopted the earlier view49 . In Madras, it has been held by a full Bench that it is not competent to the manager of a Hindu joint family. Whether he is father or uncle or an elder brother, to appoint a testamentary guardian to the joint property50 . It is submitted that the father has no power to appoint a guardian by his will of joint family property. At the moment of his death the property passes by survivorship to his minor son, and he cannot by any testamentary direction authorize any person to deal with it during the minority of the son. But it has been held by the same High Court that if the testator has no son, he may by his will authorize his widow to appoint a guardian to manage his estate during the minority of his adopted son51 . The decision would no doubt be correct if the property disposed of by will was the self-acquired property of the testator. But it would be questionable, if the property disposed of was ancestral.
42 43

A.S.V.A., re (1940) 164 LT 230 (1921) 43 All. 213, 59 I.C. 909 44 Venkayya vs. Venkata (1898) 21 Mad.; Duraiswamy vs. Balasubramaniam (1977) A.M. 304 45 sec. 27, Guardians and Wards Act, 1890 46 Rajarajeswari vs. Sankaranarayana (1948) Mad. 351 47 Harilal vs. Hai Mani (1905) 29 Bom. 351 48 Mahableshwar vs. Ramachandra (1914) 38 Bom. 94, 21 A.C. 350 49 Brijbhukandas vs. Ghasiram (1935) 59 Bom. 316, 155 I.C. 12 50 Chidambara vs. Rangasami (1918) 41 Mad. 561, 45 I.C. 905 51 Jagannadha vs. Ramayamma (1921) 44 Mad. 189, 62 I.C. 437

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3. Both under the Hindu law as previously applied and under the present Act the mother is the natural guardian of her illegitimate child [Sec. 6(b)] and it is only in case of the death of the mother or her becoming disentitled to act as such guardian the father can act as natural guardian of the illegitimate children. The present sub-section rules that a mother entitled to act as natural guardian of her minor illegitimate children may, by will, appoint a guardian in respect of the person as well as the property of such children. The father has no right in any case to appoint a testamentary guardian of his illegitimate children.

Transfer of power of management by father: - Where the father of a joint family consisting of himself and his minor sons appointed his nephew to manage the joint family property for a period of thirteen years, and the manager was under the arrangement liable only to pay a fixed sum in lieu of actual income, and the father died before the expiry of the period, it was held that the sons were not bound by the arrangement and that the manager was liable to account for the whole of the income after the fathers death52 .

III. Guardians appointed by the Court: -

Powers of the Court to appoint guardian: - (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property, or both, the Court may make an order under the Guardians and Wards Act, 1890, appointing a guardian. Where the father has appointed a testamentary guardian, the Court has no power to appoint a guardian U/S. 7 of the Guardians and Wards Act, 189053. A father being the natural guardian of his minor son cannot be appointed as guardian of the person of the son and no order U/S. 7 is necessary54.

(2) Nothing in the Guardians and Wards Act, 1890, shall affect, or in any way derogate from, or take away any power possessed by a Chartered High Court (Sec. 3).

Guardian of Person: - (1) In appointing the guardian of a minor, the Court shall be guided by what, consistently with the law to which the minor in subject, appears in the circumstances to be for the welfare of the minor.
52 53

Venkatraman vs. Janardhan (1928) 52 Bom. 16, 106, I.C. 79 Amirthavalliammal vs. Sironmani Ammal (1938) Mad. 757 54 Venkateswaram vs. Saradambol (1935) 13 Rang. 590, 160 I.C. 878

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(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age and sex of the minor, the character and capacity of the proposed guardian and his nearness of kinship 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. (3) If the minor be old enough to form an intelligent preference, the Court may consider that preference.

Guardian of minors separate property: - The only property of a minor of which a guardian can be appointed under the Guardians and Wards Act, 1890, is the separate property of the minor. A guardian cannot be appointed under that Act of the undivided interest of the minor in coparcenary property in cases governed by the Mitakshara law. The reason is that the interest of a member of a joint Mitakshara family is not separate or individual property55.

Alienation by Guardian appointed under the Guardians and Wards Act, 1890: - A guardian appointed by the Court under the Guardians and Wards Act, 1890, has no power to alienate the minors property without the previous permission of the Court. An alienation without such permission is voidable at the instance of the minor and other persons affected thereby (Sec. 29 and 30 of the Guardians and Wards Act, 1890). Where alienation is made with the permission of the Court it cannot be impeached by the minor or any other person except in a case of fraud or underhand dealing. The reason is that the alienee is entitled to trust to the order of the Court, and he is not bound to inquire as to expediency or necessity of the alienation for the benefit of the minors estate56.

Guardian of minors undivided coparcenary interest: - Although a guardian cannot be appointed of the undivided interest of a minor in joint family property under the Guardians and Wards Act, 1890, a Chartered High Court may in the exercise of its inherent power, appoint the managing member of the family to be guardian of such interest where such interest is clearly for the benefit of the minor, with power to him to alienate the joint family property including the minors interest therein, and, where the property is to be sold, impose condition upon the managing member to secure the minors share of the proceeds of the sale. This the practice in Bombay57. In a case Allahabad High Court, while holding that it

55

Gharib Ullah vs. Khalak Singh (1903) 25 All. 407, 416 30 I.A. 165, 170; Kojikar vs. Maru (1909) 32 Mad. 139, 1 I.C. 199; Mulukh Raj vs. Dhanabanta (1957) A.C. 322 56 Gangapreshed vs. Maharani Pili (1884) 11 Cal. 379, 383-384, 12 I.A. 47, 49-50; Sikher Chund vs. Dulputty (1880) 5 Cal. 363 57 Manilal Hurgovan, in re (1901) 25 Bom. 353; Jagannath Ramji, in re (1895) 19Bom. 96] and Calcutta [Hari Narain Das, in re (1928) 50 Cal. 141,74 I.C. 244

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had the power to appoint a guardian, refused to do so on ground of inexpediency and want of precedent58.

The appointment of a guardian of Hindu children is regulated by the Guardians and Wards Act, 1890. Under the Act the jurisdiction 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 (Sec. 17). In appointing a guardian the Court takes into consideration various factors, including the age, sex, wishes of the child, the wishes of the parents and the personal law of the child59. But before committing custody to mother, it is not necessary to give a finding that father is unfit for the custody of the child60. The welfare of children is of paramount consideration61.

The District Court has power to appoint or declare a guardian in respect of person as well as separate property of the minor. But it has no jurisdiction to appoint a guardian of minors undivided interest in the Mitakshara joint family property. However, if all coparceners are minors the Court may appoint a guardian in respect of entire joint family property. Such an appointment will come to an end as soon as any of them attains majority. The Chartered High Courts have inherent jurisdiction to appoint guardians of the person as well as the property of the minor children. This power extends to the undivided interest of the coparcener. This is also the position U/S. 12 of the Hindu Minority and Guardianship Act. The guardian appointed by the Court is known as a certificated guardian. Powers of the certificated guardians are controlled by the Guardians and Wards Act, 1890. There are a very few acts which he 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 (Sections 27, 29, 31, 32 and 33, Guardians and Wards Act, 1890).

58 59

Govind Prasad, in the matter of (1928) 50 All. 709, 112 I.C. 873 [Babu Ram vs. Keshavachand, 1978 P.&H. 124 60 Madhu vs. Arun, 1987, Del. 81 61 Sec. 13 of the Hindu Minority and Guardianship Act, 1956; Gangabai vs. Bhirulal, 1976, Raj. 153; Mohini vs. Virendra, 1977, S.C. 1359, Amrik Rai vs. Satpadi Sood, 1983, P.&H. 301

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Power of the Court under the Guardians and wards Act, 1890: Power of the Court to make order as to guardianship: (1) 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.

(2) An order under this Section shall imply the removal of any guardian who has not been appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this Section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of the Guardians and Wards Act, 1890 (Sec. 7).

Duties and responsibilities of District Judge: - Courts in India, since the administration of Justice under the British rule, were considered to be instrument of the same powers of the Court of Chancery as in England, with respect to the infants and considered to be delegated with the powers of the supreme guardian of all children. The state from the earliest times, or rather the King since the shastric times, is supposed to be the guardian of the infants and the earliest regulations made provisions for the custody of the minors. When the state assumes direct custody of an infant, it undertakes to bring up the boy in the same manner as his father or natural guardian would have done. In appointing a guardian the Hindu Kings used to prefer the nearest parental relation to a maternal relation. The state has now made provisions for the care of infants by statutory provisions, such as the Court of Wards Act, the Guardians and Wards Act, and the Hindu Minority and Guardianship Act. Under the second Act the powers are to be exercised by the District Court. Under the inherent powers and powers under various Letters Patent the jurisdiction exercised by the High Court in this respect is more extensive. As delegated of state powers the courts in India exercise jurisdiction in respect of children of all communities62.

The provisions of Sec. 9 of the Hindu Minority and Guardianship Act, 1956 relating to testamentary guardians and their powers does not in any manner affect the provisions of Sec. 7 of the Guardians and Wards Act, 1890. Besides, Sec. 13 of the Act of 1956 and Sec. 7 of the Act of 1890 operate in the same field and as such it is correct to say that Sec. 9(2) of the Act of 1956 has any overriding effect in order to affect the powers of the Guardianship Court U/S. 7 of the Guardians And wards Act. There again is no mandate, whether in Sec. 13 of the Act of 1956 or in Sec. 7 of the Act of 1890, on the Court to act
62

Babu Gyan vs. Sudan, AIR 1955, Nag. 193

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positively in all situations and make an affirmative order appointing or declaring any person as a guardian of a Hindu minor until such an order is necessary to be made for the welfare of the minor. The power is evidently discretionary63.

As the protector and guardian of the infant, the District Judge appoints guardian of the person and properties of infants and places himself in position of the father or guardian. The habits of infant have to be looked into, his manners have to be shaped, his sentiments have to be reared up, and his little concerns have to be attended to. No Judge assuming charge of the estate of a minor, even though he is overworked, ought to grudge the trouble and worry that must necessarily occur so long as the infant in his charge64.

The jurisdiction of the Court exists under sub-sec. (1) of this Section only in respect of person or property or both of a minor and a guardian should be appointed only when necessary and unless the absolute necessity of appointment of a guardian is manifest no guardian should be appointed65. Under the Indian law, where on appointment of a guardian the period of minority is extended by three years, guardian should not be appointed by the court with respect to a minor who is about to attain majority66.

The Court must be brought into seisin of the matter by an application by a person interested in the welfare of the child67. Sec. 10 of the Act provides for particulars to be supplied and the procedure to be followed. The Calcutta High Court has consistently taken the view that an application for appointment of a guardian must disclose full cause of action and must be supported by an affidavit68. The requirement of sub-section (3) of Sec. 10 of the Act was held to be not complied with when the declaration was attested by only one witness69.

The Court can ask for reports from the Collectors or subordinate Courts but cannot delegate its function to them70. Sec. 4A of the Act of 1890, however empowers the High Court to confer jurisdiction in the matter on any subordinate Court, and the District Judge to transfer a case to any subordinate Court for disposal.

63 64

Shobha vs. Janki, AIR 1987, MP 145 Manmohini vs. Hari Prasad, AIR 1924, Pat 755 (756, 757) 65 [In the matter of petition of Naziruddin 6 Cal 19; Mstt. Kundan Begum vs. Mstt. Aisha Begum, AIR 1939 All 15 66 K.P. Apagappa vs. Mangthai 40 Mad. 672; Visvanath vs. Karan Devi, AIR 1939, Lah 221 67 Jaiwanti vs. Gajadhar 38 Cal 783; Sundarmani vs. Gokuldas 18 CWN 160 68 Rabindra Nath vs. Abinash Chandra, AIR 1972, Cal 143 69 Chaganlal vs. Astor Quisth, AIR 1972 AP 49 70 Sulubai vs. Keshav, AIR 1932 Bom 156

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On an application being made for the appointment of a guardian, the first thing to be done by the Court is to appoint a guardian, if the Court thinks it necessary71. Satisfaction of the Court is different from welfare of the child (Fakruddin vs. Biar, AIR 1926 Lah 397).

Courts power and duties in appointment of guardians: - In proceedings under the Act of 1890 for the appointment of a guardian, the District Judge has no power to add to the order passed in the case any direction to the rival application for guardianship to deposit in Court the minors money which he has in his possession [Mohan vs. Anar Kuer 12 ALJ 788: 24 IC 518]. There is nothing in this Act which entitles a Court, while appointing a person as guardian, to order a third party to pay anything towards the minor minors maintenance *Mansa Ram vs. Naurati 26 PLR 213: 87 IC 650: AIR 1925 Lah 427].

If a person applies to be appointed guardian of the person of a minor, and the applicant is found to be unsuitable, it is not necessary for the Court to do anything more than rejecting his petition, leaving things as they were before. The Court will not be justified in assuming uncalled for jurisdiction in other matters, and in passing unnecessary orders, e.g. declaring the alleged marriage of the minor with a particular person to be unlawful, appointing the mother as guardian and demanding security from her and ordering her not to give the girl in marriage without the Courts permission and so on72.

An order appointing a guardian under Section 7 should not be in conflict with any decree of a Civil Court. A minor girl was apparently married to two persons K and L. In a suit regarding her marriage, a decree was passed in favour of L with a condition that he should have no right to her person until she became major. She has not attained puberty when L applied for her guardianship, and this was granted. Held that this order was obviously in conflict with the decree of the Civil Court and must be set aside [Khuda Baksh vs. Lal 2 Lah LJ 509].

In appointing a guardian, the Court will preferably select the nearest relative of the infant [Beatie vs. Johnstone 1 Ph 17, per Lord Cottenham at pp. 34, 35]. The Court will not generally appoint as sole guardian a person residing out of the jurisdiction [Ibid, p. 35].

The discretion of the Court of first instance in the appointment of a guardian will not be interfered with by the Court of Appeal, except for strong reasons [Kaye, re 1 Ch App 387, per Sir L. Knight Bruce, LJ at p. 389]. Court should not write sketchy orders which are not self-contained and which cannot be appreciated by the Appellate Court or the Revisional Court without an examination of the record. In
71 72

Sukhjit vs. Tej Kaur, AIR 1951 Punj 300 Mohant Devi vs. Madho 84 PR 1915: 31 IC 237

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Gajraj Singh vs. Deshlu (AIR 1952 All 331) some indications have been laid down as to how the orders should be written.

Appointment by compromise Consent order in respect of appointment or declaration of guardian of a minor is possible as it is not an order in rem but one in personam. In view of Order 32, Rule 7 of Civil Procedure Code a proceeding where a minor is a party being represented by a guardian-ad litem or next friend may be compromised provided it is beneficial to the minor. The same principle should apply in respect of a proceeding in respect of declaration or appointment as guardian or for custody of minor. No sanction is required for entering into compromise in such a proceeding [Manjula De Boral vs. Dilip Jyoti AIR 1980 Bom 235: 1979 Mah LJ 523]. In appointing a guardian on a compromised entered into between the contesting applicants it is the duty of the Court to consider whether or not the compromise is in the interest of the minor [Surejdevi vs. Prabhashankar AIR 1951 Sau 62]. It is not open to a compromising party to appeal against the order, especially when the other party withdraws the suit relying upon the compromise. Moreover, it must be assumed that when the Court gave effect to the compromise, it considered that the appointment was in the interest of the minor [Mt. Sattan vs. Mt. Saidan AIR 1936 Lah 1019: 164 IC 420]. In a case [(1966) 1 Mad LJ 137] the Madras High Court held that Sec. 7(a) or Sec. 39 of the Act of 1890 does not contemplate appointment of a guardian by consent decree and before a third party is appointed a guardian such de facto guardian should be removed.

Application for guardianship of property: - In an application for appointment of a guardian for the minors property, the Court must be satisfied on enquiry, however summary it may be, that the minor has some property, as without that there is no foundation for the application [Mt. Hassan Bi vs. Nek Alam.

The Court may not however, consider such application when the minors property is a share in the Hindu joint family property. In a Full Decision (Kanteti vs. Mudupalli AIR 1959 AP 232) the Andhra Pradesh High Court held that in Sec. 7 of the Act of 1890 the term property has been used in the generic sense. It has a wide connotation and is not restricted to the kind of property in which the minor has beneficial enjoyment. Although in Ganga Prasad vs. Herkant (7 IC 234), the Calcutta High Court took the view that no guardian can be appointed with respect to the property of the minor in the hands of the executor till the termination of executorship. In Lalit Kumar vs. Dasarathi (48 Cal 802), the Calcutta High Court said that appointment of guardian with respect to minors property in the hands of the administrator of the minors fathers property is possible. Thus the Court is invested with the jurisdiction to consider appointment of guardian with respect to minors property when the minor has beneficial interest in it and where such appointment is considered necessary for the welfare of the child. In Banamali vs. Arjun Sen (AIR 1932 Cal 730), it held that unless the child had some separate property the appointment of 24 | P a g e

guardian of property would not be for the welfare of the child. The Madhya Pradesh High Court took the view that claim to the custody of the child by the guardian is not a right in the nature of property but it is in the nature only of a trust for the benefit of minor [Veena Agarwal vs. Prahlad AIR 1976 MP 92; Smt. Gargalni vs. Bherulal AIR 1976 Raj. 153].

Jurisdiction to appoint guardian The jurisdiction to appoint guardian and hand over the custody rests absolutely in Court and no other authority subordinate to High Court can secure any undertaking from any person to defeat the jurisdiction of the Court (Joseph Eleout, re AIR 1984 Bom 266). In this Bombay case on an application of a French national wishing to adopt an infant, he was duly appointed the guardian of an infant of an orphanage conducted by a Trust Body. But subsequent to that on an application U/S. 41A, Bombay Public Trust Act, 1950 leveling certain allegations against the trustees, the Joint Charity Commissioner secured an undertaking from the trustees of the orphanage to the effect that without permission of the Charity Commissioner none from the orphanage should be given in adoption whether or not there is order of other Authority including High Court in that regard. On a writ petition the Bombay High Court quashed the undertaking observing that Charity Commissioner can pass an order in respect of the property of the trust. But the orphan-residents of the orphanage cannot be regarded as property and as such order was ultra vires (ibid).

The jurisdiction to appoint a guardian of an infant is based not on the existence of property, but on the infants need of protection. Accordingly the Court can appoint a guardian for an infant alien though there is no property within its jurisdiction [D (an infant), in re (1943) 1 Ch 305; Wellesley vs. Duke of Beauford (1927) 2 Russ 1; Jagannath Ramji, in re 19 Bom 96; Walter vs. Walter AIR 1923 Cal 600].

The Court can, according to the provisions of Sec. 7(1) of the Guardians and wards Act, 1890, exercise its jurisdiction to appoint or declare a guardian only with respect to a minor. Such appointment, however, is not favoured when a minor is about to attain the age of majority unless exigencies of circumstances make such appointment or declaration absolutely necessary [K.P. Apagappa vs. Mangthai 40 Mad 672; Jivan Krishna vs. Shailendra AIR 1946 Cal 252]. In a very early case (Naziruddin, in re 6 Cal 10) the Calcutta High Court took the view that very weak mind or health of the minor may necessitate such appointment. This was followed by the Allahabad High Court in Mt. Kundan Begum vs. Mt. Aisha Begum (AIR 1939 All 15).

Natural Guardian-need of appointment or declaration as guardian: - Sec. 7 of the Act of 1890 deals with declaration and appointment as guardian. Sec. 19(b) of the Act provides that when father is living, none else can be appointed as guardian unless such a father is found unfit to be a guardian. The father of a 25 | P a g e

Hindu minor being the natural guardian under the law (a guardian declared as such by statute) does not require the support of any order of the Court under the provision of the Guardians and Wards Act, 1890 and so an application for appointment or declaration as guardian U/S. 7 of the Act by the father is not tenable [Dakshinamurhy Mudaliar, in re (1969) 1 Mad LJ 345: (1968) 81 Mad LW 590]. But taking a contrary view a later decision of the Madras High Court held that Sec. 19 does not debar a father from making such an application for declaring him as the guardian of the minor [Jacob A. Chakramakal vs. Rosy J. Charamakal (1975) 2 Mad LJ 95].

So far as the persons who are statutorily natural guardian of the minor, they do not need any appointment as guardian [Snehalata Mathur vs. Mahendra Narain AIR 1980 Raj. 64; Sebastian vs. Thomas 1979 Ker LT 536].

Application for appointment-treating as one for custody: - As held by a host of decisions it is not material what label an application bear [Union of India vs. Uttam Singh Dugal AIR 1972 Del 110; Union of India vs. Sanju Prosad AIR 1980 Del 162; Magan Bhai Madhabai vs.AmbalalAIR 1982 Guj 129]. Labeling the petition with reference to a particular provision is not a very material feature [Lovabati Devi vs. Hora Bewa (1971) 1 Cut WR 123].

Thus father being statutorily natural guardian needs no formal appointment or declaration. And his application U/S. 10 of the Act of 1890 may be treated as one U/S. 25, for, repudiation by the mother of the right of the father amounts to removal and despite wrong labeling the petition can be treated as one U/S. 25 of the Act [Kalimunnisa vs. Shah Salim Khan Rehmankhan (1976) MPLJ 621].

Similarly Rajasthan High Court held there is not much difference in substance between an application for guardianship U/S. 10 and custody U/S 25. Therefore an application U/S. 10 can be treated as one U/S. 25 for custody. Father being natural guardian needs no appointment as guardian. His object in application U/S. 10 is to get custody of the minor [Snehalata Mathur vs. Mahendra Narain AIR 1980 Raj 64].

Welfare of minor: - The provisions of Sec. 7(1) of Guardians and Wards Act, 1890, when read with Sec. 17, make it incumbent on the Court to take into account the question of welfare of the minor while appointing or declaring a guardian. The Act does not, however, specifically mention the same as one of paramount consideration. Sec. 17(2) mentions and specifies a number of items for the consideration of the Court in appointing or declaring a guardian. The settled law is that the word welfare used in this Section must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. Relying upon this principle the Patna High Court the 26 | P a g e

maternal grandmother as the guardian of three daughters rejecting the claim of their father against whom there was allegation that he had murdered his wife i.e. the mother of those children [Bimala Devi vs. Subhas Chandra AIR 1992 Pat 76]. In so holding the Court pointed out the observations made by Madras High Court in G.A. Ayyadorai Pillais Case (AIR 1960 Mad 519) to the effect that if the Court forms the impression that the father is a normal and intelligent young man and shows no indications of imbalance of mind in him, then it should not refuse the father to have custody of the minor from his first wife even though the father had taken a second wife on the death of the first. So what will be for the welfare of the minor will depend upon the facts and circumstances of each particular case. In Patna case there was charge against the father of the girls that he had killed their mother for greed over her money.

Necessity of appointing guardian- requisite The provisions of Sec. 7 of the Act of 1890 can be invoked and declaration and appointment sought for if there is need for such appointment. It is a mistake to assume that merely because an application is made, a guardian must be appointed. The very use of the ward should in sub-section (1) of Sec. 7 shows that there must be existing the necessity of appointment of a guardian and the Court must be satisfied about it before the passing of the order [Jivan Krishna vs. Sailendra Nath AIR 1946 Cal 272: 50 CWN 129: 81 CLJ 216: (1946) 1 Cal 259]. Where the mother of the minor is properly managing the affairs of her minor son, and no allegation has been made against her character, no guardian need be appointed [Deoki vs. Bakht Mal 118 PLR 1913: 191 IC 783]. Where no guardian was needed for the protection of the person of the minor, who was being properly looked after by her nearest relatives and the minor had no property, of which a guardian could possibly take charge, an order appointing a guardian of the minor was without jurisdiction [Sahadra vs. Ramdin 16 CWN 444 (447): 13 IC 898: 15 CLJ 142]. Where the mother is the lawful guardian, and she is competent to act as such, there is no necessity of her being formally appointed as guardian by the Court [Alagappa vs. Mangathai 40 Mad 672 (677): 30 MLJ 504: 34 IC 766]. Where a child was living well in custody of mother the Court rejected the application for appointment of guardian [Fatima vs. Darwez AIR 1936 Pesh 63].

Where a stepmother made an application to have herself appointed as guardian of her stepson on the ground that she wanted to contract a marriage which she did not consider desirable, but it appeared that the minor was sufficiently grown-up to form an intelligent opinion about his own interest and did not desire any guardian to be appointed, and the Court apprehended that if the guardian be appointed, further complications would follow, held that under the circumstances no sufficient ground had been made out for the appointment of a guardian [Janak Dulari vs. Ganga Dei 8 OWN 529: AIR 1931 Oudh 326 (327): 134 IC 596]. It was very aptly observed by Lord Denning, M.R. more than 40 years ago, that the legal right of a parent to the custody of a child is a dwindling right which the Courts will hesitate to enforce against the wishes of the child and the more so the older he is. It starts with a right of control and ends with little more than advice [Hewer vs. Bryant (1970) 1 QB 357, 369], the underlying principle 27 | P a g e

being as pointed out by Lord Scarman that parental right yields to the childs right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making-up his own mind on the matter requiring decision [Gillick vs. West Norflok (1986) AC 112, 186].

Where the family affairs are satisfactory any unnecessary interference by the Court should be avoided. Thus, where two co-widows were apparently no good terms and, being peasant women, were quite able to look after the interests of their own children, and a sister of the father of those children applied for guardianship, which application was granted by the Judge, held that no case was made out for the necessity of interference on the part of the Judge, and the parties must be relegated to the position which they held before the guardianship proceeding was started. As a general rule, far less harm is done by leaving people to manage the affairs of their children on their own way, than by attempting to do it for them through the agency of a Court [Hayat Khatun vs. Sharma Khatun 26 IC 524 (525): 93 PR 1914]. A Court should not entertain an application for appointment of a guardian for a minor where the previous family arrangements are quite satisfactory, and the minors interests are being very well looked after without any guardian being appointed [Usaf Ali vs. Alibhoy AIR 1927 Lah 789 (790): 101 IC 259]. Where no charge of waste or mismanagement by the mother (natural guardian) has been proved, the mere desire of the other relatives of the minor that a guardian should be appointed is not a sufficient reason for depriving the mother of her recognized right to be the guardian of her minor childs property [Laxmibai vs. Abdul Kabir 68 IC 474: AIR 1923 Nag 129]. If a suit be pending which will enable the Court to take upon itself the management of the property, it is unnecessary to appoint a guardian of the property.

It is not proper for a Court to appoint a guardian of the person of a minor who is at least 17 years old, as he comes of age very soon or is already of age. The order of appointment in such a case would simply deprive him of his right to manage his own affairs for three years more. It is not for the Court to moralize on the advantage of keeping a youth under tutelage for a longer period than the law ordinarily contemplates [Viswa Nath vs. Mt. Karam Devi AIR 1939 Lah 221: 41 PLR 542: 182 IC 992].

It was thus be clear that unnecessary or premature orders were always avoided by the Court when in the opinion of the Court appointment of guardian was not needed by the minor.

Application must be bona fide: - An application for guardianship which is not made bona fide ought not to be entertained by the Court. And also, where the machinery of the law was set in motion by the person who induced his servant (who was the maternal grandfather of the infant) to make an application for appointment of himself as her guardian in order that she might be ultimately married to the son of the person, held that the application was not bona fide, and any order passed on such 28 | P a g e

application must be set aside [Sarat Chandra vs. Girindra 15 CWN 457 (460): 7 IC 702]. Where the object of a person who applies to be appointed as guardian of a minor is not so much the welfare of the minor as the vindication of his own rights to be appointed as guardian, his application shall be rejected, especially where the minor is in the custody of his mother and is being properly looked after by her [Sudhia vs. Makka 18 ALJ 71: 54 IC 418]. Where the father had neglected to maintain his son, and proceedings U/S. 488 Criminal Procedure Code, 1898 (Sec. 125 of the present Code of 1973) were taken against him, but still he made default in paying the monthly allowance ordered, and then he applied for guardianship of his son, and he appeared that the application was filed merely to escape the payment of the arrears of maintenance for which steps were being taken against him, held that the application should be rejected *Mukdbar vs. Karim Baksh AIR 1923 Lah 283 (284): 75 IC 496+. Husbands petition for custody of his wife was rejected with the observation that the provisions of the Act of 1890 could not be availed of by the husband, whose petition for restitution of conjugal rights was rejected, to enable him to have possession of the wife [Asi Bai vs. Giridhari AIR 1921 Lah 68]. Such prayer for custody and appointment as guardian of the wife was regarded as not bona fide in Sarat Chandra vs. Giridhari (ante). When the applicant suppressed the fact of existence of near relations of the minor it was held not bona fide and rejected [Mahton vs. Ramraj AIR 1957 Pat 720].

Declaration of the Court: - The order of the District Court acknowledging a person as the guardian of a minor is a declaration of such guardianship within the meaning of Sec. 7 of the Act of 1890 [Thiruvengadamier vs. Periasami 9 MLJ 24]. A de facto and a testamentary guardian appointed by a dead person may be declared as a guardian but the question of declaration does not arise in case of a natural guardian. Such declaration means the end of natural guardianship [Aramugan vs. Duraisinga 37 Mad 38]. A declaration U/S. 7 or Sec. 10 can be changed on a change of circumstances [Jiban vs. Sailendra AIR 1946 Cal 272]. A guardian is said to be declared as such, when he has been appointed under an independent such as a will, and by the declaration the Court merely gives effect to the appointment [Manubai vs. Sakhubai 11 Bom LR 348: 2 IC 484]. In making a declaration for guardianship the Court cannot issue directions in respect of collateral matters [Kundan vs. Bhagwati AIR 1934 All 1043; Mansaram vs. Naurati AIR 1925 Lah 427]. But the Court has powers to pass order for security [Harendra vs. Ardhendu 24 IC 202; Joy Singh vs. Pratap Singh AIR 1945 Bom 312]. The Madras High Court took the view that orders for security cannot be passed U/S. 7 but can be passed U/S. 34 of the Act of 1890 [Venkatesh in re 49 Mad 809 (FB)].

An order refusing to remove a guardian is not tantamount to an order declaring such person to be a guardian within the meaning of clause (b) of Sec. 7 of the Guardians and wards Act, 1890 [Konthalathammal vs. Thangasamy 46 Mad 873 (875): AIR 1924 Mad 327: 45 MLJ 481].

Guardianship commencement- point of time: - The Court may appoint a guardian by simple order or with direction of furnishing security within the time specified in the order or with the simple condition 29 | P a g e

of furnishing security. The order of appointment is put into effect as the order is passed in the first two cases but in the third case the same does not come into effect till the security is furnished, as the order is conditional. In the second of these cases, however failure to furnish security within the specified date means automatic cancellation of the order. Requirement for payment of security has been provided for in Sec. 31 of the Act of 1890. Where on an application for guardianship the Court makes inquiry and passes an order that the applicant shall have the certificate, he, by getting that order, substantially obtains the certificate although there may be delay in issuing it. It is not necessary that the certificate should be issued immediately [Mungniram vs. Gurusahai 17 Cal 347(PC); Chunne Mal vs. Brojo Nath 8 Cal 967]. A transfer, made by the guardian before theactual issue of the certificate but after the order for its issue has been made, must require the sanction of the Court U/S. 29 [Harendra Narain vs. Moran 15 Cal 40]. Even the fact that no certificate has been issued makes no difference. The guardianship commences as soon as the order appointing guardian is passed [Girish Chandra vs. Abdul Selam 14 Cal 55].

Previously under Act XI of 1858 effect was from the issue of certificate [Stephen vs. Stephen 8 Cal 714 (on appeal, 9 Cal 901)]. In the present Act of 1890 no mention of certificate is made at all and, therefore, the guardian is substantially appointed as soon as the order of appointment is passed (though the certificate may be issued afterwards). Along with the passing of an immediately effective order the period of minority is extended by three years and runs till the completion of twenty-one years. Normally, however, a minor becomes major on completion of eighteen years, which will also be the case if the order passed was not effective.

In the absence of a plea of fraud in respect of the obtaining of the certificate of guardianship, the production of certificate is all that is required to prove the fact of the appointment of guardian [Bhagwati Prasad vs. U.P. Government 1940 ALJ 85: AIR 1940 All 202: 188 IC 281].

Guardian of minor beneficiary: - The view taken in Ashrafi vs. Jai Narain [6 IC 862 (863) (All)], is in consonance with the English law, according to which the Court has no power to appoint a guardian of the estate of an infant where the estate is not in possession, because the jurisdiction of the Court to appoint a guardian exists for the sole purpose of taking care of an infants present property *Marquis of Salisbury, in re LR 20 Eq 527: 44 LJ Ch 541]. But the Madras High Court held that it is open to a Court to appoint a guardian of the properties of a minor, even though the minor is not entitled to present possession of those properties, and such appointment will not interfere with the right of other persons to possession of those properties as executor, trustee or otherwise [Alwar Ahmed vs. Narayana 14 MLW 706: AIR 1921 Mad 328 (330): 70 IC 360]. The Allahabad High Court holds that the guardian of a minors property can be appointed in respect of his interest in a partly public and partly private trust in order that those trusts may be protected and the benefits thereof secured for the minor [Ejaz vs. Khatun 39 All 288 (290-91)]. The Calcutta High Court has also expressed the opinion that a guardian can be validly 30 | P a g e

appointed of the property of a minor which is in the hands of an administrator to his fathers estate because the appointment of an administrator does not mean that the minor has no property in the estate [Lalit Kumar vs. Dasarathi 48 Cal 802 (806): 66 IC 261]. But in another case the same High Court has held that if a person has executed a will and appointed an executor of his property, no guardian can be appointed for the property of his minor son, because the estate having vested in the executor, it cannot be considered to be the property of the minor until the office of executor terminates, and consequently no guardian of the property of the minor can be appointed so long as the executorship continues [Ganga Prasad vs. Hara Kanta 15 CWN 558 (564): 7 IC 234]. It does not however bar the appointment of a guardian of the person of the minor (ibid).

Guardian of a minor member of joint Mitakshara family: - A Mitakshara family is a special feature of Hindu law. A minor who is a member of an undivided Mitakshara family has no interest in any individual property at all. Consequently no guardian can be appointed under this Act to the property of such minor, unless he is possessed of any separate property [Bijoy Kumar in re 59 Cal 570; Virupakshappa vs. Nilgangava 19 Bom 309 (315) (FB)]. The matter was discussed in detail in Virupakshappa vs. Nilgangava case, where it was further held that a guardian, with respect to the undivided share of a minor son or coparcener, cannot be appointed by the will of the father or Karta of the joint family. This finds statutory recognition in Sec. 9 of the Hindu Minority and Guardianship Act, 1956. In Gharibulla vs. Khatak Singh (supra) their Lordships of the Privy Council observed: It has been well settled by the long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infants interest in the property of an undivided Mitakshara family. And in their Lordships opinion those decisions are clearly right on the plain ground that the interest of a member of such a family is not individual property at all, and therefore, a guardian, if appointed, would have nothing to do with the family property. In an undivided Hindu Mitakshara family, the Karta is, to all intents and purposes, the sole manager on behalf of the minor as well as the adult members, if any [Ram vs. Mihir 36 All 158]. There can be no guardian of a minors property in an undivided Hindu family which have adult members. The manager is not the guardian and cannot be appointed as such under the law [Suganchand vs. Laduram AIR 1941 Nag 105: 1940 NLJ 584: 196 IC 34]. If he misuses his position there is an easy remedy provided by law. But to introduce another person as guardian to watch the minors interests and to exercise a sort of supervision over the Kartas dealings would be productive of serious evil; it would paralyze the proper management of the joint estate and tend to strife and disunion. To introduce a guardian of a share which is unascertained and unspecified would be to disorganize the family and to bring about a separation without a portion and to alter in effect the devolution of property. So no guardian can be appointed of the property of a minor member of an undivided Mitakshara family; until partition the minor has no separate property to be managed by a guardian [Sham Kaur vs. Mahanunda 29 Cal 301 (311); Mulukhraj vs. Dhanabanta AIR 1957 Cal 322]. In the last of these cases the Calcutta High Court held that unless the child had some separate property and the Court was satisfied of the same it could not be taken that the appointments of a guardian was for the welfare of the minor child. On this principle a Hindu father of a Mitakshara family has no power to appoint by will a guardian of property for his minor for his minor sons in respect of ancestral family properties which will survive to 31 | P a g e

his sons (though it is competent for him to appoint a guardian of the person of his minor sons in such a case) [Alagappa vs. Mangathai (supra)].

This principle also applies to the case of a minor belonging to an Aliyasantana family, where the only right of the infant is a right to be maintained in the family house; the minor in such a case has no property in respect of which a guardian can properly be appointed [Kajikar Lakshmi vs. Maru Devi 32 Mad 139 (140): 4 MLT 462: 1 IC 999].

The above principle does not apply when all the coparceners of a Mitakshara joint family are minors; in such a case, a guardian of the property may be appointed by the Court for the whole number in respect of the entire joint family property [Bindaji vs. Mathurabai 30 Bom 152 (155); Ramchandra vs. Krishnarao 32 Bom 259 (261)]. But, when subsequently, one of that group arrives at the majority, the guardianship of the person so appointed by the Court must cease; and the Court is bound to hand over the joint property to the coparcener who has attained majority, although the other coparceners are minor [Chandrapal vs. Sorabji AIR 1935 Oudh 334: 1935 OWN 368: 154 IC 855]. An order directing him to furnish security before he recovers possession is wrong and should not be passed as he acts not as certificated guardian but as a natural guardian (Ibid). In such a case the guardian may be removed U/S. 39 [Jambagathachi vs. Rajamannasami 57 IC 678 (680): 11 MLW 596].

The Bombay High Court held that the widow cannot be a manager and is not entitled to management [Nagappa vs. Mukambe AIR 1951 Bom 309]. The Nagpur High Court in Pandurang vs. Pandurang AIR 1947 Nag 299, took the view that a mother can be the Karta of a joint Hindu family and in that case no guardian can be appointed. This view was dissented from by other High Courts and finally in Commissioner of Income Tax vs. Seth Govind Ram AIR 1966 SC 24, the Supreme Court held that not being a coparcener a mother can never be a Karta of a joint Hindu family.

A guardian of a person of a minor coparcener in a joint Mitakshara family may, however, be appointed without any legal difficulty [Ramkishen vs. Beli Ram 23 PR 1930: 5 IC 887 (888)]. But in Hiran Devi vs. Chanan Shah AIR 1937 Lah 918, it has been held that ordinarily no such appointment should be made. If all the coparceners are minors and a guardian of the person of one of those minor is appointed, the guardianship will not cease by reason of any of the other coparceners attaining majority.

There is no objection to the appointment of a guardian of the share of a minor in a property held by a joint Dayabhaga family, but in such case, care should be taken to avoid the introduction of strangers into the affairs of the joint family. In the case of Tarunchandra Ghose (57 Cal 533), the Calcutta High Court 32 | P a g e

under its inherent jurisdiction, appointed guardian of the person and property of a Dayabhaga minor, when both the minor and the property were outside its jurisdiction. But in the matter of Phanindra Chandra Sett (58 Cal 919), exercise of such jurisdiction was declined, holding the exercise of such special jurisdiction is limited within the area of Fort William, i.e., the Ordinary Original Jurisdiction.

But the High Court has, under its general jurisdiction and partly from the Guardians and Wards Act, power to appoint a guardian of the property of the minor who is a member of joint Hindu Mitakshara family and where the minors property is an undivided share in the family property *Manilal, in re 25 Bom 353; Hari Narain, in re 50 Cal 141]. In these cases, it should be noted, the person who was appointed as guardian was also the manager of the family, so that there was no risk of introducing into the family any element of possible disturbance. In this connection the earliest case of the Bombay High Court is in re, Jairam (16 Bom 634), where a guardian was appointed with respect to the minors interest in a Mitakshara family [Mahadeo, in re AIR 1941 Bom 397].

The Madras High Court also took similar view (AIR 1949 Mad 260). In re, Hari Narain, when a purchaser was prepared to purchase the property at a price which was more than its real value and he insisted that an order of the Court should be obtained sanctioning the sale, the father of the minor was appointed his guardian. The High Court has power in its general jurisdiction to appoint a guardian of the undivided share of a minor coparcener in the family property, where there are no adult coparceners in the family [Narsi vs. Sachindra 54 Bom 75: 31 Bom LR 1009: AIR 1929 Bom 475 (477)].

On the disruption of such a joint family there is no legal bar to the appointment of a guardian of the person and property of the minor member [Duni Chand vs. Bhagwan Dass AIR 1937 Pesh 44: 168 IC 809].

Inquiry as to whether minors property is joint or separate: - There can be a guardian of the separate property of a minor in the joint family. After the death of the father the mother is the natural guardian of the separate property of her minor children [Sadhu Ram vs. Pirthi Singh AIR 1936 Lah 200: 38 PLR 201: 161 IC 861]. In an application for the appointment of a guardian for the property of a minor, it must be shown that the minor has some property, as without that there is no foundation for the application [Mt. Hassan Bai vs. Nek Alam AIR 1940 Lah 9: 41 PLR 678: 185 IC 809]. This Section contemplates only a summary enquiry followed by an order made for the welfare of the minor. It does not contemplate an elaborate enquiry as to whether the property to which the minor is entitled in his separate or joint family property (Ibid). To hold such an enquiry is outside the scope of this Act, because the despite the elaborateness of the enquiry made, the Courts decision, whatever it may be, will not operate as res judicata, so that the difficult questions agitated in such an enquiry may still be agitated again in a civil 33 | P a g e

suit to have a finality of decision. Therefore, when an application for guardianship is made on the footing and with the claim that the minor is separately entitled to separate property, and the other party contends that the property is joint with others, the Court need no enter into any enquiry into this question, which ought to be properly decided by a Civil Court and cannot be decided by a summary procedure under this Act. In such a case the District Judge should simply appoint proper person as guardian of the property of the minor, leaving it to the guardian to institute a suit on behalf of the minor for recovery of the property which he claims [Guruppa vs. Tayawa 40 Bom 513 (515, 516): 35 IC 16: 18 Bom LR 343].

The Calcutta High Court, however, is of opinion that, although it is true that the inquiry contemplated by this Section is only of a summary inquiry still the mere fact that the applicant alleges that the minor is separately entitled to separate property does not entitle the Court to make an order for guardianship of the minors property. The Court cannot make such an order until it is satisfied that there is some separate property to which the minor is entitled, for to hold otherwise would be to encourage frivolous litigations resulting in a state of things highly detrimental to the minors interests. Consequently, unless the applicant can show that the minor has some separate property, the case for making the application for guardianship would not stand, and the application must be dismissed [Banamali vs. Arjun 36 CWN 769 (772): 140 IC 198: AIR 1932 Cal 730].

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IV. Guardian de facto and guardian ad hoc A de facto guardian is a person who takes continuous interest in the welfare of the minors person on management and administration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability. It was on this basis that the de facto guardian enjoyed a unique position in Hindu law a system which he enjoys in no other system pf law.

The term de facto guardian as such is not mentioned in any of the texts, but his existence has never been denied in Hindu aw.

A guardian appointed for temporary period or for a single transaction is called Guardian ad hoc. He is not recognized as a de jure guardian. He is similar to de facto guardian. In Sriramulus Case Mr. Justice Mukharjea points out that, As the law stands at present, if a person is not what is called an ad hoc guardian and does not act as guardian. For a particular transaction only, but is found to be managing the property of an infant in the same way as a de jure guardian would, he could be described the de facto guardian, although he is neither a natural guardian nor a guardian appointed by the court.

Alienation by guardian de facto and guardian ad hoc: - (1) A person who is not an ad hoc guardian and does not pose as a guardian for particular purpose, but manages the affairs of the infant in the same way as a de jure guardian does could be described as a de facto guardian although he is not a natural guardian or a guardian appointed by the Court.

(2) A de facto guardian has the same power of alienating the property of his ward as a natural guardian [Kondamudi vs. Myneni (1949) 11 F.C.R. 65 Palani Goundan vs. Vanjiakkal (1956) A.M. 476]. A bona fide mortgage executed by the de facto guardian of a Hindu minor for the benefit of his estate and with due regard to his interests cannot be impeached on the sole ground that he is merely a de facto guardian [Kundan Lal vs. Beni Pershad (1932) 13 Lah. 399, 137 I.C. 115], for example, if it is effected for the marriage of the minors sister *Sheo Govind vs. Ram Adhin (1933) Luck. 182, 140 I.C. 556+.

But if the alienation is for a marriage in violation of the Child Marriage Restraint Act the transaction can be. The High Court of Bombay in Limbaji vs. Rahi [(1925) 49 Bom. 576, 88 I.C. 6 43] and Madras in Narayana vs. Ravunni [(1924) 47 Mad. L.J. 680, 84 I.C. 973] have held that a sale by a step mother, 35 | P a g e

though she was in each case the de facto manager of the minors estate, is a sale by an unauthorized person, and is therefore void. The question as to the validity of a mortgage by a step-mother arose before the Judicial Committee in Bunseedhur vs. Bindesree [(1866) 10 M.I.A. 454], where it was held that the transaction being fraudulent, the minor was not bound by it. But the power of a step-mother to alienate the minors property as a de facto guardian was not questioned. The decision of the Bombay High Court has since been overruled by decision of a Full Bench of the same Court [Tulsidas vs. Vaghela Raisingji (1933) 57 Bom. 40,141 I.C. 17+. The view taken by the Bombay High Courts Full Bench is fully supported by the decision of the Federal Court in Kondamudi vs. Myneni (11 F.C.R. 65). The right to avoid a transaction is a personal right of the minor. It is a right to sue and it is not heritable [Palani Goundam vs. Vanjickkal (1956) A.M. 476].

(3) An alienation by a de facto guardian which is neither for necessity nor for the benefit of the estate of the minor is void ab initio in the sense that it confers no title on the alienee [Hari Satya vs. Mahadev (1983) A. Cal. 76].

(4) A sale by a guardian ad hoc, e.g., by a separated uncle who has never intermeddled or acted as a guardian is void [Harilal vs. Gordhan (1927) 51 Bom. 1040, 105 I.C. 722].

(5) Sec. 11 of the Hindu Minority and Guardianship Act, 1956 clearly says that 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.

The de facto guardian of the estate of a lunatic has no power to alienate his property for necessity [Narayan vs. Ramachandra (1957) A.B. 146 (F.B.); Kanhaiyalal vs. Harsingh (1944) Nag. 698].

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V. Guardianship by affinity

In the pre-1956 Hindu law there existed a guardian called guardian by affinity. The guardian by affinity is the guardian of a minor widow. The textual source of the guardianship of minor widow is the same as relating to the guardianship of a minor wife. To these texts may be added the concept that on marriage a woman passes completely into the family of the husband; she gets her husbands Gotra and name. This is nothing but the other way of saying marriage means transfer of dominion over the right over the girl by the father to the husband. On the basis of these texts, Mayne concluded that the husbands relation, if there exists any, within the degrees of Sapinda, are the guardians of a minor widow, in preference to her father and his relations. The judicial pronouncements have been also to the same effect. Devodas and Mackay J.J. observed: -

By marriage a girl passes into the family of her husband. Her husbands Gotra therefore becomes her Gotra and her husbands Sapindas become her Sapindas, as she becomes one with her husband. If she becomes a widow when minor, it follows a matter of course that the eldest amongst the nearest Sapindas of her husband becomes her guardian. This is his consonance with the Hindu notion of merger of identity of the wife in the husband [Chinna vs. Vinayagathammal, (1929) Mad. 110 at 112; Ashwani Kumar vs. Fulkumari, 77 C.W.N. 349].

The guardianship by affinity was taken to its logical end by the Allahabad High Court in Paras Ram vs. State, (1960) All. 479. In this case the father-in-law of a minor widow forcibly took away the widow from her mothers houses and married her for money to an unsuitable person against her wishes. The question before the Court was whether the father-in-law was guilty of removing the girl forcibly. The Allahabad High Court held that he was not, since he was the lawful guardian of the widow.

A question has come before our Courts whether the nearest Sapinda of the husband automatically becomes a guardian of the minor widow on the death of her husband or whether he is merely preferentially entitled to guardianship and therefore he cannot act as guardian unless he is appointed as such? Paras Ram seems to subscribe to the former view, and the Madras and the Nagpur High Court to the latter view. In Rai Chand vs. Sayer (1966) Mad. 172, the Madras High Court said that U/S. 13 of the Hindu Minority and Guardianship Act, 1956, in the appointment of any person as guardian, the welfare of the child is paramount consideration; the fact that under the Hindu law father-in-law has preferential right to be appointed as guardian is only a matter of secondary consideration. And if the interest of the father-in-law is adverse to the daughter-in-law, he could not be appointed as guardian. It is submitted that it is a sensible view of the matter. Paras Ram illustrates the danger inherent in following the other

37 | P a g e

view. In our submission the more sensible view will be that a minor widow reverts back to the guardianship of her parents.

It has been submitted earlier by this writer that it would be a better law if the guardianship of the minor wife, both of her person and property, continues to vest on the parents. If that rule is accepted, it would follow that even when she becomes a widow, parents would be her guardians. If we accept the line of argument of the Madras and Nagpur High Court, it would mean that whosoever (whether father or father-in-law) claim guardianship, he will have to seek appointment from the Court. If it is so, there is nothing like guardianship by affinity.

It can be argued that even after the Hindu Minority and Guardianship Act, the guardianship by affinity exists, since the Act does not abolish him. If it is retained in the form in which it was accepted in Ram Chand (1966) Mad. 172, there may not be much of an objection, though preferential view will be that she reverts to the guardianship of her parents.

We do not have the textual guidance or case law on the powers of the guardians by affinity. Probably his power may be taken to be at par with those of the natural guardian.

Removal of guardian: - The Court has power to remove any guardian from the guardianship, if it comes to the conclusion that to do so will be in the interest of the minor. Sec. 6 of the Hindu Minority and Guardianship Act, 1956 specifically lays down that no person shall be entitled to act as the natural guardian of the minor: (1) If the guardian has ceased to be a Hindu, or (2) If the guardian has completely and finally renounced the world.

The Hindu Minority and Guardianship Act do not say that the father or mother cannot appoint by will a non-Hindu as guardian of the child. Nor is there anything in the Guardians and Wards Act, 1890 to prevent a Court from appointing a non-Hindu as guardian of a Hindu minor, though U/S. 17 the Court is required to take into consideration the personal law of the minor. It is, thus, submitted that unless it is evidently to the disadvantage of the minor, such as when guardian interferes with the minors religion, it is not obligatory on the part of the Court to remove a non-Hindu testamentary guardian of a Hindu minor, nor it is bound not to appoint a non-Hindu as a guardian of the minor, though Court may not ordinarily appoint a non-Hindu as a guardian of the minors person. There can not be any hitch in appointing a non-Hindu as guardian of minors property. The Courts have time and again said that the 38 | P a g e

principal matter to be considered in these case is the welfare of the infant *Bhagwat vs. Murlidhar (1933) P.C. 106; Gangabai vs. Bherumal (1976) Raj. 153; Vijaylakshmi vs. Inspector of Police (1991) Mad. 243].

Remarriage of the mother is no longer a disqualification and a mother who has remarried does not lose her right of guardianship.

Procedure for recovering custody of minors: - A guardian who has been deprived of the custody of his ward, has the following remedies upon him:-

(1) He may proceed by suit against the person alleged to be in wrongful possession of the ward.

In Besant vs. Narayaniah (1914) 41 I.A. 314, 322, 38 Mad. 807, 820, 24 I.C. 290, where a suit was brought by a Hindu father in the District Court of Chinglepat for the custody of his minor sons, there Lordships of the Privy Council said, A suit inter partes is not the form of procedure prescribed by the Act *that is, the Guardians and Wards Act, 1890] for proceedings in a District Court touching the guardianship of infants. Following this decision it has been held by the Madras High Court that the proper procedure of proceedings in a Mufassal Court touching the custody of a minor is by way of petition U/S. 25 of the Act, and not by way of suit [Sathi vs. Ramandi (1919) 42 Mad. 647, 53 I.C. 399]. On the other hand, it was held by the High Court of Bombay in Achratlal vs. Chimanlal [(1916) 40 Bom. 600, 37 I.C. 215] held that the dictum of the Privy Council in Besants case was not intended to be of such general application as to take away the right of suit in all cases, that the provisions of the Guardians and wards Act were not exhaustive, and that a suit for the custody of a minor lies even in a Mufassal Court. The Chief Court of Punjab [Ghasita vs. Wazira (1896) Punj. Rec. No. 41 (F.B.)] and Allahabad High Court [Sham Lal vs. Bindo (1904) 26 All. 594], have held that a petition is the only form of procedure allowed in matters relating to the custody of minors.

(2) He may proceed by a writ of habeas corpus under Art. 226 of the Constitution of India.

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Important Cases

M.S. Githa Hariharan and another vs. Reserve Bank of India and another73: -

Fact of the case: - The petitioner and Mohan Ram were married in Bangalore in 1982 and had a son in July in 1984. The petitioner applied to the Reserve Bank of India for the 9% Relief Bond to be held in the name of the son indicating that she, the mother, would act as the natural guardian for the purpose of investments. RBI returned the application advising the petitioner either to produce an application signed by the father or a certificate of guardianship from a competent authority in her favour to enable the bank to issue bonds as requested.

This petition was related to a petition for custody of the child stemming from a divorce proceeding pending in the District Court of Delhi. The husband petitioned for custody of the child in the proceedings. The petitioner filed an application for maintenance for herself and the minor son, arguing that the father had shown totally apathy towards the child and was not interested in the welfare of the child. He was only claiming the right to be the natural guardian without discharging any corresponding obligation.

On these facts the petitioner asked for a declaration that the provisions of Sec. 6(a) of the Hindu Minority and Guardianship Act, 1956 along with Sec. 19(b) of the Guardians and Wards Act violated Art. 14 and 15 of the Constitution of India.

The applicant argued that the communication from the RBI was arbitrary and was opposed to the basic concept of justice under Art. 32 of the Constitution. They therefore challenged the validity of Sec. 6 of the Hindu Minority and Guardianship Act, 1956. Further they argued that the provisions of Sec. 6 is seriously disadvantageous to women and discriminatory against them in the matter of guardianship rights, responsibilities and authority in relation to their own children.

Decision: - Giving the opinion of the court, Banerjee J asserted the predominance of the childs welfare in all consideration. He considered the precedence of Gajre vs. Pathankhan (1970, 2 SCC 717) in which although the father was alive, he was not taking any interest in the affairs of the child. In that case the mother was ruled to be the natural guardian of her minor daughter. He set out that the Hindu law and
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AIR 1999, 2 SCC 228

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the Act held that the father is the natural guardian and after him the mother but in the above case the court held the opposite.

He concluded that ascribing the natural meaning of the word after cannot arise having due regard to the object of the Act and the Constitutional guarantee to the gender equality, since any other interpretation would render the statute void which ought to be avoided.

Subsequently, he dismissed the petition regarding the constitutionality of the Act but directed the Reserve Bank to formulate appropriate methodology in the light of his observations. He also instructed the District Court of Delhi to take account of his comments when considering custody and guardianship of the minor child.

Rajender Kumar Jain vs. State: -

Fact of the case: - Rajender Kumar Jain and Smt. Madhu Jain jointly purchased a property in Shalimar Bagh, Delhi. Smt. Madhu Jain expired on 2004 leaving behind her husband, two sons and a minor daughter Ms. Vidhi Jain as her legal heirs. Consequently, 1/8th share of the said property fell into the share of her minor daughter.

The appellants filed an application u/s. 8(1), 8(2) and 12 of the Hindu Minority and Guardianship Act, 1956 read with Sec. 29 and 31 of Guardians and Wards Act, 1890 praying that appellant No. 1 i.e. Rajender Kumar Jain appointed as guardian of Ms. Vidhi Jain and be permitted to sell the 1/8th undivided share of Ms. Vidhi Jain. It is averred that the father of the minor is in dire need of money. Rajender Kumar Jain said that he will keep the interest of the minor in his mind and after the sell of the property the share of the minor will be invested in the benefit of the minor and would not be appropriated by anyone else. The learned District Judge of the Delhi District Court dismissed the application. Aggrieved by this order Rajender Kumar Jain moved to the Delhi High Court.

Decision: - The Delhi High Court observed that- a bare look at the pleadings clearly goes to show that appellant no. 1 has laid more emphasis on his own dire needs rather than the necessity or for an evident 41 | P a g e

advantage to the minor. The paramount question which falls for consideration is what is the necessity of the minor or whether the sale is to be made for the benefit of her estate.

Surinder Kaur Sandhu vs. Harbax Singh Sandhu74: -

Fact: - The appellant and respondent no. 1 were married in 1975 according to the Sikh rites. Soon after their marriage they left for England where a boy named Pritpal Singh was born to the couple in 1976. Thereafter, their relationship came under a strain and as a result of that the respondent no. 1 tried to negotiate with a hitman to run over the appellant by a car. The Berkshire Police got a scent of it resulting in the respondents conviction and sentence for a period of three years. Ironically, the appellant wife intervened and succeeded in obtaining a probation order for the man who had attempted to procure her murder. The husband was released on probation on 1982. On January 31, 1983 when the wife was away at work, respondent no.1 removed the boy from her mothers custody and brought him to India. On the same date the appellant wife obtained an order u/s. 41 of the Supreme Court Act, 1981, under which the boy became the ward of the court. In the meantime, the appellant came to India and filed a petition u/s. 97 of Code of Criminal Procedure praying for the custody of the child. The respondent no. 1 contested and took and objection u/s. 6 of Hindu Minority and Guardianship Act, 1956, that he is the natural guardian of the minor boy. His contention was accepted and the petition was dismissed. The appellant went back to England to resume her work and obtained the confirmation of the order u/s. 41 of the Supreme Court Act, 1981. Armed with this order she came back to India and filed a writ petition in the High Court of Punjab and Haryana. The writ petition was dismissed on the grounds inter alia that her status in England is that of a foreigner, factory worker and a wife living separately from the husband and having no relatives and as such the child would have to live in a lonely and dismal surroundings in England. Hence the appellant appealed in the Supreme Court with the leave of the Court.

Decision: - Chandrachud C.J. of the Supreme Court held that, the traumatic experience of a conviction in a criminal charge is not a factor in favour of the father especially when his conduct following immediately upon his release in probation shows that the experience has not chastened him. On the whole we are unable to agree that the welfare of the boy requires that he should live with his father or with his grant parents. For this reason the Supreme Court set aside the judgment given by the High Court and directed that the custody of the child shall be handed over to the appellant mother.
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1984 SCC (3) 698

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Conclusion

In conclusion it can be said that, the subject of guardianship is equally important in every part of the world specially in the present society when joint families are splitting into nuclear families. Disputes in matrimonial life is much bigger nowadays and the child is becoming the victim of these disputes without any valid reason. As a result the future of the child is ruined. It is often seen that people knock the door of the court for the guardianship of the child, but we often forget the interest of the child in all our activities. Before taking any decision we have to remember that child if the father of the future and whatever we do to our child can come back to us as a boomerang.

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BIBLIOGRAPHY Desai S.A., Mulla Hindu Law, 19th edition (2005), Vol-2Lexis-Nexis, New Delhi, Diwan Paras, Dr. Paras diwan on Hindu Law, 2nd edition(2002) Orient Publishing Company, New Delhi, Kusum, family Law Lectures Family Law-I, 2nd edition (2007) LexisNexis, NewDelhi, Mayne, Hindu Law & Usage, 15th edition (2003) Bharat Law House, New Delhi

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