What do you mean by a minor ? What are the various kinds of Guardians under Hindu Minority and Guardianship Act, 1956. Explain their respective powers over the person and property of the minor. (b) Examine the rights and liabilities of guardians under Hindu Minority and Guardianship Act, 1956.
Ans. (a) Who is a Minor? — S.4 of the Hindu Minority and Guardianship Act, 1956, defines the word ‘minor’ as a person who has not completed the age of eighteen years. The rules laid down by the Act or the rules applicable to Hindu in -so far as the Minority and Guardianship is concerned, are for the purposes other than marriage. According to both the Acts i.e., Indian Majority Act and Hindu Minority and Guardianship Act the age of majority is 18 years. But according to Raghavachariar, the provisions of the Indian MajorityAct that even minor of whose person or property or both a guardian has been appointed by the Court of Wards and every minor of whose property the superintendence has been or shall be assumed by any court, shall be deemed to have attained his majority when he shall have completed his age of twenty one years, stands abrogated by the Act in so far as the provisions of the Indian Majority Act in this respect are inconsistent with the provisions of the Act. According to S. 4(a) of the Act completion of 18 years will apply in all cases. However, it was held by the Gujrat High Court in PrakashNavilibbai, A.I.R. 1986, Guj. 116, that if a guardian of the person or propery of a minor is appointed or declared by a court or superintendence of his property is assumed by the Court of Wards, the minor shall be deemed to have attained majority on the completion of twenty one years, despite the overriding effect of the Hindu Minority and Guardianship Act over other Acts. The reason is that the Hindu Minority and Guardianship Act deals only with natural and testamentary guardians and their powers cease on the appointment of a certified guardian or the assumption, of superintendence by a Court of Wards. The Hindu Minority and Guardianship Act virtually leaves the age of majority of a Hindu minor unaffected. Kinds of Guardian—According to S. 4 of the Act, there are following kinds of guardians —1. Natural Guardian. 2. Testamentary Guardian. 3. Guardian appointed by court. 4. Statutory Guardian. 5. De facto Guardian, and 6. Ad hoc guardian. 1. Meaning of Natural Guardian—A natural guardian is one who becomes so by reason of the natural relationship with the minor. In other words a natural guardian is a person having the care of the person of a minor or of his property or of both, by virtue of his natural relationship with the minor. • Who are Natural Guardians?—According to S. 6 of the Hindu Minority and Guardianship Act, 1956 the natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property including his or her undivided interest in joint family property, are as under—(a) In the case of a boy or an unmarried girl—the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother, (b) In the case ofan illegitimate by or an illegitimate unmarried girl—the mother, and after her, the father, (c) In the case of a married girl—the husband : Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—(a) If he has ceased to be a Hindu, or. (b) If he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi). Explanation—In this section, the expression ‘father’ and ‘mother’ do not include a step father and a step-mother. Thus, the father is the natural guardian of the person and of the separate property of his minor children, and next to him, the mother. hi Jijabai Rathan Khan, A. LR.1971 S.C3 I 5 where the father was alive but had fallen out with the mother of the minor daughter and was living separately for several years without taking any interest in the affairs of the minor who was in the keeping and care of the mother, it was held by their Lordships of the Supreme Court that in the peculiar circumstances, the father should be treated, non-existent and the mother could be considered as the natural guardian of the minor’s person as well as property. Where the father converts to Islam and marries a Muslim girl, he cannot claim, as a matter ofright, the natural guardianship of the child born to him with Hindu wife. No relation except a parent is entitled, as of right, to the guardianship of minor. The court has no power to appoint a guardian of the person of a minbr whose father is living and is not, in the opinion of the court, Unfit to be guardian of the person of the minor. The husband is the lawful guardian of his minor wife, and is entitled the 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 arrived at puberty. Powers of Natural Guardian– According to S.8 the powers of a natural guardian are as under — 1. Necessary or reasonable and proper acts for the benefit of the minor’s person—A natural guardian has the power to place such restraint on minor in regard to his upbringing, education and health as may be necessary or reasonable or proper for the benefit of the minor. The natural guardian has the power to delegate his authority for the upbringing and education of his minor child to a tutor or schoolmaster or a friend with a power to revoke the said delegation. The guardian has the power to choose at his discretion the place of residence of minor to save the minor from bad society. This section does not apply to those alienations where the manager of the joint family property alienates the joint interest ofa minor in the family property for the benefit of the minor or the family need. In Manik Chand V.s. Ram Chand, A.1.R. 1981, SC, the Supreme Court clearly held that after passing of the Act of 1956 the natural guardian has been empowered to do all such acts which are necessary for the welfare and benefit of the child. 2. Benefit of the Estate– A transaction to be binding on the minor must be one which not only confers a benefit upon the estate but is necessary for its good management. 3. Power to Enter into Contracts–So far as the question of the power of natural guardian to enter into contract of loan on behalfof the minor so as to bind the minor’s estate is concerned, there was a conflict of judicial opinions on this point. Finally it was settled by the Federal. Court which held that the creditor could get a decree against the minor’s estate on the basis of his being subrogated to the right of indemnity or reimbursement which the guardian had against the minor’s estate. 4. Power to Enter into Compromises —It is competent ofa natural guardian to enter into a compromise on behalf of his ward. 5. Acknowledgment of Debt—A natural guardian ofa minor as well as a guardian appointed by the court has power to acknowledge a debt or to pay interest on a debt so as to extend the period of limitation provided the act is for the protection or benefit of the minor’s property. 6. Family Arrangement— The natural guardian has the power to enter into family settlement on behalf of the minor provided it is in the nature of a bona fide compromise of doubtful claims. 7. Power to Refer Disputes to Arbitration-The natural guardian has power to refer to arbitration disputes provided such a course is for the benefit ofa family. The father being alive, the mother had no power on behalf of her minor Son to refer the matter to arbitration. 8. Power of Alienation– The natural guardian ofa Hindu minor has power in the management of the estate to sell, or mortgage any part of the estate in case of necessity or for the benefit of the estate, provided the natural guardian has taken permission of the court prior to such alienation as provided in S.8(2) of the Act. The Bombay High Court has held that it is only the natural guardian who can move an application for the permission of the court for transfer of immovable property of minor. It has been expressly laid down in sub-section (1) of S.8 of the Act that the-natural guardian shall in no case bind the minor by a personal covenant. Thus, where a father enters into an agreement to sell the minor’s property, and delivers actual possession of the same in pursuance of that” agreement, the said agreement is not binding upon and enforceable against minor even, when it was entered into for his benefit. Such agreement would be voidable, and not void. The law on this point is as under—(i) A guardian of a Hindu minor has no authority to impose a personal obligation upon the minor or his estate by an unconditional undertaking to pay a debt or loan not contracted for necessity or benefit of the minor. (ii) A guardian, provided he is not an intruder on estate of the minor, can borrow money for the protection or benefit of the minor, so as to make the minor’s estate liable for the same but in such cases the creditor can have a decree against the estate of the infant only on the principle of subrogation to the right of indemnity or re-imbursement which the guardian may have against the ward’s estate. (iii) The same principles are applicable to monies borrowed on the security of negotiable instruments. 2. Who are Testamentary Guardians ?—The testamentary guardians of a minor are these guardians who are appointed by the will of the natural guardian entitled to act as a guardian for the minor. It is to be noted that a will becomes effective only after the death of the executor. According to S. 9 of the Hindu Minorty and Guardianship Act, 1956, testementary power of appointing guardian has now been conferred on both parents. Under the old law it seems that an appointment of guardian could be made by the will or any other valid testmentary disposition even if improbated, and containing no disposition of property. But it seems that under S. 9, Hindu Minority and Guardianship Act testamentary guardian can be appointed only by a will. Powers of Testamentary Guardian — The testamentary guardian has all the powers and rights and obligations of a natural guardian so far as they are not limited by the will itself, and his obligation to provide maintenance is not personal and exists only to, the extent that there are properties of the minor. But it is his duty to look for his support and when some one else is the guardian of minor’s property, he should apply to the court for necessary funds to be made available for the support of the minor. The right of the guardian so appointed by will where the minor is a girl, ceases on her marriage. 3. Guardian Appointed by the Court —Where the court is satisfied that it is for the welfare ofa 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. In appointing or declaring a person as the guardian of a minor the welfare of the minor shall be the paramount consideration. This has been laid down in S.13 of the Hindu Minority and Guardianship Act, 1956 and S.17 of the Guardians and Wards Act, 1890. No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindu, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor. In considering as to 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 kins to the minor, the wishes, if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor be old enough to form an intelligent preference, the court may consider that preference. Powers of Guardian Appointed by the Court — Powers of the guardian appointed by the court and the control imposed by the Act over such powers are the same as that of a natural or testamentary guardian. 4. Statutory Guardian-According to S.32 of C.P.C. a guardian ad litem maybe appointed or removed or where the management of an estate is vested, for the time being, in a Court of Wards, a guardian of the minor whose estate is so vested may be appointed under the provisions of the Court of Wards Act. 5. Meaning of Dc facto Guardian —Ade facto guardian ofa minor, is neither a legal guardian, nor a testamentary guardian, nor a guardian appointed by the court, but he is a person, who himself, takes over the management of the affairs of the minor, as if he was a natural guardian. He is not an intermeddler, nor does an isolated act of any person in regard to child’s property make him and facto guardian. Some continuous course of conduct is necessary on his part. In the old texts nothing has been mentioned about the de facto guardian but in practice such a guardian has been quitely recognised. In an old judgment. Justice Kania had observed that Hindu law tried to find a solution oui of two difficult situation, one, when there is no legal guardian of the minor, and secondly, a person having no title could not be permitted to intermeddle with the minor’s estate so as to cause loss to him. The solution to the above problem was found out by lending recognition to de facto guardian. Power of De Facto Guardian—The Hindu Minority and Guardianship Act does not recognise a de facto guardian. The Act in S. I 1 expressly provides, “After the commencement of this Act, no person shall be entitled to dispose of, or deal with the property of Hindu minor merely on the ground of his or her b.eing the de facto guardian.” After the enforcement of the Act, a de facto guardian cannot deal with the property of a minor. Such property includes separate property of the minor as well as his undivided interest in joint family, and it is not correct to restrict the application of this section only to separate property merely because the words “undivided interest in joint family” do not occur in this section as they occur in S.6 and in S.9. These two sections deal with natural guardians and testamentary guardians and their powers, and not with de facto guardians and their powers. In fact the effect of S.11 is that the class of de fiacto guardian as such is not recognised under the Act. It has been held that an alienee from a de facto guardian would now be governed by this section. Any alienation made after the commencement of this Act would be void ab initio and the alienee would acquire no title to the property. A de facto guardian has no power to acknowledge debt on behalf of the minor, neither to make reference to arbitration, nor to make a gift of minor’s property. In case of minor, his father and in his absence his mother is a natural guardian. Law does not recognise a de facto guardian. Hence any alienation of minor’s property by a person claiming to he his de facto guardian is invalid. 6. Meaning of Ad hoc Guardian–‘Ad hoc’ means “for this purpose.” Before a person can be described a guardian de facto there must be some course of conduct in that capacity it implies some continuity of conduct, some management of the property beyond the isolated act of alienation which is being challariged. A person who, over many years, has never intermeddled or acted as a guardian cannot come forward and claim to be a guardian de facto and authorised to sell property on behalf of a minor. Such a person would be a guardian ad hoc and not a guardian de facto. An alienation by a guardian ad hoc is void. The ad hoc guardian too has no place in this Act. Overriding Effect of the Act—S.5 of the Act repeals the written and customary law to the extent it is inconsistent with the provisions of the Act. S.5 runs as follows —Save as otherwise expressly provided in this Act—(a)Any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any manner for which provision is made in this Act. (b) Any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.” The Act, however, expressly states that the provisions of this Act shall be in addition to and not save as expressly provided in this Act, itself in derogation of the Guardians and Wards Act. (b) Rights and Liabilities of Guardians -A guardian is entitled to the custody of his ward and exclusive possession of his property. As a guardian he alone is entitled to sue or be sued on behalf of. the minor as his next friend, and do all such acts as may be necessary for contesting the case in the interest of the minor. The guardian can also enter into a compromise or can agree to refer the dispute to arbitration in order to preserve the interest of the child. The compromise would be binding only when it fulfils the test of minor’s interest and is approved by the court. Where the guardian incurs any expenses out of his own pocket he would be duly reimbursed or indemnified out of the minor’s property. The legal position of guardians is fiduciary in nature. They are personally liable for breach of trust. They are not entitled to any remuneration for their guardianship unless it has been specifically provided in the will. He cannot appropriate minor’s property or can not use minor’s property to meet his own ends. He is bound to manazs tie minor’s property and estate prudently. Whatever pecuniary advantage and profits are received out of the minor’s estate, the guardian is bound to hold them in trust for the minor.