THE GUARDIANS AND WARDS ACT, 1890
[Central Act No.8 of 1890]
Arrangement
of Sections
CHAPTER
I
PRELIMINARY
Sections
1.
Title, extent and commencement
2.
[Repealed]
3.
Saving of jurisdiction of Courts of Wards and Chartered
High Courts
4.
Definitions
4-A. Power to confer
jurisdiction on subordinate judicial officers and to transfer proceedings to
such officers
CHAPTER
II
APPOINTMENT AND DECLARATION OF GUARDIANS
5.
[Repealed]
6.
Saving of power to appoint in other cases
7.
Power of the Court to make order as to guardianship
8.
Persons entitled to apply for order
9.
Court having jurisdiction to entertain application
10.
Form of application
11.
Procedure on admission of application
12.
Power to make interlocutory order for production of minor
and interim protection of person and property
13.
Hearing of evidence before making of order
14.
Simultaneous proceedings in different Courts
15.
Appointment or declaration of several guardians
16.
Appointment or declaration of guardian for property beyond
jurisdiction of the Court
17.
Matters to be considered by the Court in appointing
guardian
18.
Appointment or declaration of Collector in virtue of
office
19.
Guardian not to be appointed by the Court in certain cases
CHAPTER
III
DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
General
20.
Fiduciary relation of guardian to ward
21.
Capacity of minors to act as guardians
22.
Remuneration of guardian
23.
Control of collector as guardian
Guardian
of the Person
24.
Duties of guardian of the person
25.
Title of guardian to custody of ward
26.
Removal of ward from jurisdiction
Guardian
of Property
27.
Duties of guardian of property
28.
Powers of testamentary guardian
29.
Limitation of powers of guardian of property appointed or
declared by the Court
30.
Voidability of transfers made in contravention of section
28 or section 29
31.
Practice with respect to permitting transfers under
section 29
32.
Variation of powers of guardian of property appointed or
declared by the Court
33.
Right of guardian so appointed or declared to apply to the
Court for opinion in management of property of ward
34.
Obligations on guardian of property appointed or declared
by the Court
34-A. Power to award
remuneration for auditing accounts
35. Suit against guardian where
administration bond was taken
36. Suit against guardian where
administration bond was not taken
37. General liability of guardian
as trustee
Termination
of guardianship
38. Right of survivorship among
joint guardian
39. Removal of guardian
40. Discharge of guardian
41. Cessation of authority of
guardian
42. Appointment of successor to
guardian dead, discharged or removed
CHAPTER
IV
SUPPLIMENTAL PROVISIONS
43. Orders for regulating
conduct or proceedings of guardians, and enforcement of those orders
44. Penalty for removal of ward
from jurisdiction
45. Penalty for contumacy
46. Reports by Collectors and
Subordinate Courts
47. Orders appealable
48. Finality of other orders
49. Costs
50. Power of High Court to make
rules
51. Applicability of Act to
guardians already appointed by court
52. [Repealed]
53. [Repealed]
THE SCHEDULE [Repealed]
THE GUARDIANS AND WARDS ACT, 1890
[Central Act No.8 of 1890]
[21st
March, 1890]
An Act
to consolidate and amend the law relating to Guardian and Ward.
Whereas it is expedient to
consolidate and amend the law relating to guardian and ward: It is hereby
enacted as follows:-
Statement of Objects and Reasons
This
Bill to consolidate and amend the law relating to Guardians and Wards is based
on opinions elicited by a reference to Local Governments and High Courts on the
subject of certain defects in the law relating to the Guardianship of minors,
and its object is to provide a law of Guardian and Ward applicable as far as
possible to all classes of Her Majesty’s subjects in British India.
Among
the enactments which the Bill will supersede are Act 40 if 1858 and portions of
the Madras Code, relating to minors in the Presidencies of Bengal and Madras
who are not European British subjects and are not under the superintendence of
a Court of Wards Act 20 of 1864, relating to minors in the Presidency of Bombay
who are not European British subjects; Act 9 of 1861, relating to the custody
and guardianship of minors who are not European British subjects; and Act 13 of
1874, relating to the guardianship of European British minors in territories
beyond the jurisdiction of the chartered High Courts.
The
Bill, which follows generally the frame of Act 13 of 1874, is drawn as
applicable to all District Courts and High Courts (including the chartered High
Courts)and to minors of all creeds and races. But it does not take away any of
the powers at present possessed by the chartered High Courts, and it provided
that, in the selection of guardians and other matters, regard shall be had to
the personal law of the minor. The jurisdiction and authority of the Courts of Wards are expressly saved and will
not be in any way affected by the proposed law.
One
effect of the assimilation of the law will be to do away with the rule, which
obtains in the Presidencies of Bengal and Bombay, that no person shall be
entitled to institute or defend any suit connected with a minor’s estate of which he claims the
charge until he has obtained a certificate of administration. It is proposed
that suits by and against minors shall be regulated by chapter XXXI of the Code
of Civil Procedure, and that, in a Bill which is to be introduced to amend that
Code, provision be inserted conferring, among other privileges, on a guardian
who has been appointed, or whose title has been declared, under the Guardians
and Wards law, a preferential right to be appointed next friend or guardian for
the suit.
Acts 40
of 1858 and 20 of 1864 provide, in sections, 27 and 31, respectively, that
nothing in those Acts shall authorise the appointment of any person other than
a female as the guardian of the person of a female. The cases reported at ILR
10 Cal 15 ILR 11 Cal574, and the remarks at pages 213-14 of Sayyid Amir Ali’s
Personal Law of Muhammadans, seem to render the re-enactment of the provision
inexpedient. Section 15 of the Bill specifies the matters by which the Court is
to be guided in appointing a guardian, and one of those matters is the law to
which the minor is subject.
The
provision of Act 20 of 1864, that the legal heir of a minor, or the person next
in succession to his property, may not be appointed guardian of the person of
the minor, has not been repeated. It is considered that the appointment of such
persons should not be absolutely prohibited.
This was the opinion of the Supreme Council when Act 40 of 1858 was
about to be enacted (Proceedings of Legislative Council, 1858, pages 576-77)
and is the opinion of the Hon’ble Mr. Melvill.
If the
Bill becomes law in its present form, Article 10 of Schedule I of the Court,
Fees Act, 1870, which applies only to the Presidencies of Bengal and Bombay,
will become obsolete. It has, therefore, been included in the schedule of
enactments to be repealed.”- [Gazette of India, 1886, Part V, page 89.]
CHAPTER
I
PRELIMINARY
1.
Title,
extent and commencement.- (1) This Act may be called the Guardians and Wards
Act, 1890.
(2)
It extends to the whole of India, [except the State of
Jammu and Kashmir] [xxx], [xxx]
(3)
It shall come into
force on the first day of July, 1890.
2.
[Repealed].- Rep. by
the Repealing Act, 1938 (1 of 1938) section 2 and Schedule.
3.
Saving
of Jurisdiction of Courts of Wards and Chartered High Courts.- This Act
shall be read subject to every enactment heretofore or hereafter passed
relating to any Court of Wards by [any competent Legislature, authority or
person in [any State to which this Act extends]]; and nothing in this Act shall
be constructed to affect, or in any way derogate from, the jurisdiction or
authority of any Court of Wards, or to take away any power possessed by [any
High Court [xxx]].
4.
Definitions.- In this
Act, unless there is something repugnant in the subject or context,-
(1) “ minor”
means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875), is to be deemed not to have attained his majority;
(2) “guardian”
means a person having the care of the person of a minor or of his property, or
of both his person and property;
(3)
“ward” means a minor for whose person or property or both, there is a
guardian;
(4)
“District Court” has the meaning assigned to that expression in the
Code of Civil Procedure, 1882 (14 of 1882), and includes a High Court in the
exercise of its ordinary original civil jurisdiction;
(5)
“the Court” means –
(a) The
District Court having jurisdiction to entertain an application under this Act
for an order appointing or declaring a person to be a guardian; or
(b)
where a guardian has been appointed or decalred in pursuance of any such
application-
(i) the
Court which, or the Court of the officer who, appointed or declared the
guardian or is under this Act deemed to have appointed or declared the
guardian; or
(ii) in
any matter relating to the person of the ward the District Court having
jurisdiction in the place where the ward for the time being ordinarily resides;
or
(b)
in respect of any proceeding transferred under section
4-A, the Court of the officer to whom such proceeding has been transferred;]
(6)
“Collector” means the chief officer
in charge of the revenue – administration of a district, and includes any
officer whom the State Government, by notification in the Official Gazette,
may, by name or in virtue of his office, appoint to be a Collector in any local
area, or with respect to any class of persons, for all or any of the purposes
of this Act;
[xxx];
and
(8)
“prescribed” means prescribed by rules made by the High Court under
this Act.
[4A. Power to confer jurisdiction on subordinate
judicial officers and to transfer proceedings to such officers.- (1) The
High Court may, by general or special order, empower any officer exercising
original civil jurisdiction subordinate to a District Court o authorize the
Judge of any District Court to empower any such officer subordinate to him, to
dispose of any proceedings under this Act transferred to such officer under the
provisions of this section.
(2)
The Judge of District Court may by order in writing,
transfer at any stage any proceeding under this Act pending in his Court for
disposal to any officer subordinate to him empowered under sub-section (1).
(3)
The Judge of a District Court may at any stage transfer to
his own Court or to any officer subordinate to him empowered under sub-section
(1) any proceeding under this Act pending in the Court of any other such
officer.
(4)
When any proceedings are transferred under this section in
any case in which a guardian has been appointed or declared, the Judge of the
District Court may, by order in writing, declare that the Court of the Judge or
officer to whom they are transferred shall, for all or any of the purposes of
this Act, be deemed to be the Court which appointed or declared the guardian.]
CHAPTER
II
APPOINTMENT AND DECLARATION OF GUARDIANS
5. Power of parents to appoint in case of European
British subjects.- [Omitted by Part B States (Laws) Act, 1951 ( 3 0f
1951), section 3 and Schedule, w.e.f.1.4.1951.]
6. Saving of power to appoint in other cases.- In the
case of a minor [x x x], nothing in this Act shall be construed to take away or
derogate from any power to appoint a guardian of his person or property or
both, which is valid by the law to which the minor is subject.
7. 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 by will or other instrument or 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 this Act.
8. Persons entitled to apply for order.- An order shall not be made under the last foregoing section
except on the application for,-
(a) the
person desirous of being, or claiming to be, the guardian of the minor; or
(b) any
relative or friend of the minor; or
(c) the
Collector of the district or other local area within which the minor ordinarily
resides or in which he has property; or
(d) the
Collector having authority with respect to the class to which the minor
belongs.
9. Court having jurisdiction to entertain application.- (1) If
the application is with respect to the guardianship of the person of the minor,
it shall be made to the District Court having jurisdiction in the place where
the minor ordinarily resides.
(2) If the application is with
respect to the guardianship of the property of the minor, it may be made either
to the District Court having jurisdiction in the place where the minor
ordinarily resides or to a District Court having jurisdiction in a place where
he has property.
(3) If an application with
respect to the guardianship of the property of a minor is made to a District
Court other than that having jurisdiction in the place where the minor
ordinarily resides, the Court may return the application if in its opinion the
application would be disposed of more justly or conveniently by any other
District Court having jurisdiction.
10. Form of application.- (1) If the application is not
made by the Collector, it shall be by petition signed and verified in manner
prescribed by the Code of Civil Procedure, 1882 (14 of 1882), for the signing
and verification of a plaint, and stating, so far as can be ascertained,-
(a) the
name, sex, religion, date of birth and ordinary residence of the minor;
(b) where
the minor is a female, whether she is married, and, ir so, the name and age of
her husband;
(c) the nature,
situation and approximate value of the property, if any, of the minor;
(d) the name
and residence of the person having the custody or possession of the person or
property of the minor;
(e) what
near relation the minor has, and where they reside;
(f) whether
a guardian of the person or property or both, of the minor has been appointed
by any person entitled or claiming to be entitled by the law to which the minor
is subject to make such an appointment;
(g) whether
an application has at any time been made to the Court or to any other Court
with respect to the guardianship of the person or property, or both, of the
minor, and, if so, when, and to what Court and with what result;
(h) whether
the application is for the appointment or declaration of a guardian of the
person of the minor, or of his property, or of both;
(i) where
the application is to appoint a guardian, the qualifications of the proposed
guardian;
(j) where
the application is to declare a person to be a guardian, the grounds on which
that person claims;
(k) the
causes which have led to the making of the application; and
(l) such
other particulars, if any, as may be prescribed or as the nature of the
application renders it necessary to state.
(2) If the
application is made by the Collector, it shall be by letter addressed to the
Court and forwarded by post or in such other manner as may be found convenient,
and shall state as far as possible the particulars mentioned in sub-section
(1).
(1) The
application must be accompanied by a declaration of the willingness of the
proposed guardian to act, and the declaration must be signed by him and
attested by at least two witnesses.
11. Procedure on admission of application.- (1) If the Court is
satisfied that there is ground for proceeding on the application, it shall fix
a day for the hearing thereof, and cause notice of the application and of the
date fixed for the hearing,-
(a) to be
served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882)
on-
(i)
the parents of the minor if they are residing in [any
State to which this Act extends];
(ii)
the person, if any, named in the petition or letter as
having the custody or possession of the person or property of the minor;
(iii)
the person proposed in the application or letter to be
appointed or declared guardian, unless that person is himself the applicant;
and
(iv)
any other person to whom, in the opinion of the Court,
special notice of the application should be given; and
(b) to be
posted on some conspicuous part of the Court-house, and of the residence of the
minor, and otherwise published in such manner as the Court, subject to any
rules made by the High Court under this Act, thinks fit.
(2) The State Government may, by
general or special order, require that, when any part of the property described
in a petition under section 10, sub-section (1), is land of which a Court of
Wards could assume the superintendence, the Court shall also cause a notice as
a aforesaid to be served on the Collector in whose district the minor
ordinarily resides, and on every Collector in whose district any portion of the
land is situate, and the Collector may cause the notice to be published in any
manner he deems fit.
(3) No charge shall be made by
the Court of the Collector for the service or publication of any notice served
or published under sub-section (2).
12. Power to make interlocutory order for production of minor and interim
protection of person and property.- (1) The Court may direct that the
person, if any, having the custody of the minor shall produce him or cause him
to be produced at such place and time and before such person as it appoints,
and may make such order for the temporary custody and protection of the person
or property of the minor as it thinks proper.
(2) If the minor is a female who
ought not to be compelled to appear in public, the direction under sub-section
(1) for her production shall require her to be produced in accordance with the
customs and manners of the country.
(3) Nothing in this section
shall authorize –
(a) the
court to place a female minor in the temporary custody of a person claiming to
be her guardian on the ground of his being her husband, unless she is already
in his custody with the consent of her parents, if any, or
(b) any
person to whom the temporary custody and protection of the property of a minor
is entrusted to dispossess otherwise than by due course of law any person in
possession of any of the property.
13.Hearing of evidence before making of order.- On the
day fixed for the hearing of the application, or as soon afterwards as may be,
the Court shall hear such evidence as may be adduced in support of or in
opposition to the application.
1.
Simultaneous proceedings in different
Courts.- (1) If proceedings for the appointment or declaration of a
guardian of a minor are taken in more Courts than one, each of those Courts
shall, on being apprised of the proceedings in the other Court or Courts, stay
the proceedings before itself.
(2) If the
Court are both or all subordinate to the same High Court, they shall report the
case to the High Court, and the High Court shall determine in which of the
Courts the proceedings with respect to the appointment or declaration of a
guardian of the minor shall be had.
(3) In any
other case in which proceedings are stayed under sub-section (1), the Courts
shall report the case to and be guided by such orders as they may receive from
their respective State Governments]
2. Appointment or declaration of several guardians.- (1) If
the law to which the minor is subject admits of his having two or more joint
guardians of his person or property or both, the Court may, if it thinks fit,
appoint or declare them.
[Sub-sections 2 & 3 were
omitted]
(2) Separate
guardians may be appointed or declared of the person and of the property of a
minor.
(3) If a
minor has several properties, the Court may, if it thinks fit, appoint or
declare a separate guardian for any one or more of the properties.
3. Appointment or declaration of guardian for property
beyond jurisdiction of the Court.- If the Court appoints or
declares a guardian for any property situate beyond the local limits of its
jurisdiction, the Court having jurisdiction in the place where the property is
situate shall, no production of a certified copy of the order appointing or
declaring the guardian accept his as duly appointed or declared and give effect
to the order.
4.
Matters
to be considered by the Court in appointing guardian.- (1)
In appointing or declaring the guardian of a minor, the Court shall, subject to
the provisions of this section, be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to be for the welfare
of the minor.
(2) In
considering what will be for the welfare of the minor, the Court shall have
regard to the age, sex and religion of the minor, the character and capacity of
the proposed guardian and his nearness of kin to the minor, the wishes, if any,
of a deceased parent, and any existing or previous relations of the proposed
guardian with the minor or his property.
(3) If the
minor is old enough to form an intelligent preference, the Court may consider
that preference.
[Sub –
section 4 was omitted]
(5)The
Court shall not appoint or declare any person to be a guardian against his
will.
18. Appointment or declaration of Collector in virtue of office.- Where a
Collector is appointed or declared by the Court in virtue of his office to be
guardian of the person or property, or both, of a minor, the order appointing
or declaring him shall be deemed to authorize and require the person for the
time being holding the office to act as guardian of the minor with respect to
his person o property or both, as the case may be.
19.Guardian not to be appointed by the Court in certain cases.- Nothing in this Chapter shall authorize the
Court to appoint or declare a guardian of the property of a minor whose
property is under the superintendence of a Court of Wards, or to appoint or
declare a guardian of the person,-
(a) of a
minor who is a married female and whose husband is not, in the opinion of
Court, unfit to be guardian of her person, or
(b) [x x x ]
of a minor whose father is living and is not, in the opinion of the Court,
unfit to be guardian of the person of the minor; or
(c) of a
minor whose property is under the superintendence of a Court of Wards competent
to appoint a guardian of the person of the minor.
CHAPTER
III
DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
General
20. Fiduciary relation of guardian to ward.- (1) A
guardian stands in a fiduciary relation to his ward, and, save as provided by
the will or other instrument, if any, by which he was appointed, or by this Act, he must not make any profit out of
his office.
(2) The fiduciary relation of a
guardian to his ward extends to and affects purchases by the guardian of the
property of the ward, and by the ward of the property of the guardian,
immediately or soon after the ward has ceased to be a minor, and generally all
transactions between them while the influence of the guardian still lasts or is
recent.
21. Capacity of minors to act as guardians.- A minor
is incompetent to act as guardian of any minor except his own wife or child or,
where he is the managing member of an undivided Hindu family, the wife or child
of another minor member of that family.
22. Remuneration of guardian.- (1) A guardian appointed or
declared by the Court shall be entitled to such allowance, if any, as the Court
thinks fit for his care and pains in the execution of his duties.
(2) When an officer of the
Government, as such officer, is so appointed or declared to be guardian, such
fees shall be paid to the Government out of the property of the ward as the
State Government, by general or special order, directs.
23. Control of Collector as guardian.- A
Collector appointed or declared by the Court to be guardian of the person or
property, or both, of a minor shall, in all matters connected with the
guardianship of his ward, be subject to the control of the State Government or
of such authority as that Government by notification in the Official Gazette,
appoints in this behalf.
Guardian of the person
24. Duties of guardian of the person.- A
guardian of the person of a ward is charged with the custody of the ward and
must look to his support, health and education, and such other matters as the
law to which the ward is subject requires.
25. Title of guardian to custody of ward.- (1) If
a ward leaves or is removed from the custody of a guardian of his person, the
Court, if it is of opinion that it will be for the welfare of the ward to
return to the custody of his guardian, may make an order for his return and for
the purpose of enforcing the order may cause the ward to be arrested and to be
delivered into the custody of the
guardian.
(2) For the purpose of the
arresting the ward, the Court my exercise the power conferred on a Magistrate
of the first class by section 100 of the Code of Criminal Procedure, 1882 (10
of 1882).
(3) The
residence of a ward against the will of his guardian with a person who is not
his guardian does not of itself terminate the guardianship.
26. Removal of ward from jurisdiction.- (1) A
guardian of the person appointed or declared by the Court, unless he is the
Collector or is a guardian appointed by will or other instrument, shall not,
without the leave of the Court by which he was appointed or declared, remove
the ward from the limits of its jurisdiction except for such purposes as may be
prescribed.
(2) The leave granted by the
Court under sub-section (1) may be special general, and may be defined by the
order granting it.
Guardian of property
27. Duties of guardian of property.- A guardian of the
property of a ward is bound to deal with as carefully as a man of ordinary
prudence would deal with if it were his own, and, subject to the provisions of
this Chapter, he may do all acts which are reasonable and proper for the
realisation, protection or benefit of the property.
28. Powers of testamentary guardian.- Where a guardian has
been appointed by will or other instrument, his power to mortgage or charge, or
transfer by sale, gift, exchange or otherwise, immovable property belonging to
his ward is subject to any restriction which may be imposed by the instrument,
unless he has under this Act been declared guardian and the Court which made
the declaration permits him by an order in writing, notwithstanding the
restriction, to dispose of any immovable property specified in the order in a
manner permitted by the order.
29. Limitation of powers of guardian of property appointed or decalred
by the court.- Where a person other than a Collector, or than a guardian
appointed by will or other instrument, has been appointed or declared by the
Court to be guardian of the property of a ward, he shall not, without the
previous permission of the Court,-
(a) mortgage
or charge, or transfer by sale, gift, exchange or otherwise, any part of the
immovable property of his ward, or
(b) lease
any part of that property for a term exceeding five years or for any term
extending more than one year beyond the date on which the ward will cease to be
a minor.
30.Voidability of transfers made in contravention of section 28 or
section 29.- A disposal of immovable property by a guardian in
contravention of either of the two last foregoing sections is voidable at the
instance of any other person affected thereby.
31. Practice with respect to permitting transfers under section 29.- (1)
Permission to the guardian to do any of the acts mentioned in section 29 shall
not be granted by the Court except in case of necessity or for an evident
advantage to the ward.
(2) The order granting the
permission shall recite the necessity or advantage, as the case may be,
describe the property with respect to which the act permitted is to be done,
and specify such conditions, if any, as the Court, may see fit to attach to the
permission; and it shall be recorded, dated and signed by the Judge of the
Court with his own hand, or when from any cause he is prevented from recording
the order with his own hand, shall be taken down in writing from his dictation
and be dated and signed by him.
(3) The Court may in its
discretion attach to the permission the following among other conditions,
namely,-
(a) that a sale shall not be
completed without the sanction of the Court.
(b) that a sale shall be made to
the highest bidder by public auction, before the Court or some person specially
appointed by the Court for that purpose at a time and place to be specified by
the Court, after such proclamation of the intended sale as the Court, subject
to any rules made under this Act by the High Court directs;
(c) that a lease shall not be
made in consideration of a premium or shall be made for such term of years and
subject to such rents and covenants as the Court directs;
(d) that the whole or any part
of the proceeds of the act permitted shall be paid into the Court by the
guardian, to be disbursed therefrom or to be invested by the Court on
prescribed securities or to be otherwise disposed of as the Court directs.
(4) Before granting permission
to a guardian to do an act mentioned in section 29, the Court may cause notice
of the application for the permission to be given to any relative or friend of
the ward who should, in its opinion, receive notice thereof, and shall hear and
record the statement of any person who appears in opposition to the
application.
32.Variation of powers of guardian or property
appointed or declared by the Court.- Where a guardian of the
property of a ward has been appointed or declared by the Court and such
guardian is not the Collector, the Court may, from time to time, by order,
define, restrict or extend his powers with respect to the property of the ward
in such manner and to such extent as it may consider to be for the advantage of
the ward and consistent with the law to which the ward is subject.
33.Right of guardian so appointed or declared to
apply to the Court for opinion in management of property of ward.- (1) A
guardian appointed or declared by the Court may apply by petition to the Court
which appointed or declared him for its opinion, advice or direction on any
present question respecting the management or administration of the property of
his ward.
i.
If the Court considers the question to be proper for
summary disposal, it shall cause a copy of the petition to be served on, and
the hearing thereof may be attended by, such of the persons interested in the
application as the Court thinks fit.
ii.
The guardian stating in good faith the facts in the
petition and acting upon the opinion, advice or direction given by the Court
shall be deemed, so far as regards his own responsibility, to have performed
his duty as guardian in the subject-matter of the application.
34.Obligations on guardian of property appointed or
declared by the Court.- Where a guardian of the property of a ward has
been appointed or declared by the Court and such guardian is not the Collector,
he shall,-
(a) if so
required by the Court, give a bond, as nearly as may be in the prescribed form,
to the Judge of the Court to ensure for the benefit of the Judge for the time
being, with or without sureties, as may be prescribed, engaging duly to account
for what he may receive in respect of the property of the ward;
(b) If so
required by the Court, deliver to the Court, within six months from the date of
his appointment or declaration by the Court, or within such other time as the Court directs, a
statement of the immovable property belonging to the ward, of the money and
other movable property which he has received on behalf of the ward up to the
date of delivering the statement, and of the debts due on that due to or from
the ward;
(c) If so
required by the Court, exhibits his accounts in the Court at such times and in
such form as the Court from time to time directs;
(d) If so
required by the Court, pay into the Court at such time as the Court directs the
balance due from him on those accounts, or so much thereof as the Court
directs; and
(e) Apply
for the maintenance, education and advancement of the ward and of such persons
as are dependent on his, and for the celebration of ceremonies to which the
ward or any of those persons may be a party, such portion of the income of the
property of the ward as the Court from time to time directs, and, if the Court so
directs, the whole or any part of that property.
34A. Power to award remuneration for auditing accounts.- When
accounts are exhibited by a guardian of the property of a ward in pursuance of
a requisition made under clause (c) of section 34 or otherwise, the Court may
appoint a person to audit the accounts, and may direct that remuneration for
the work be paid out of the income of the property.]
35.Suit against guardian where administration bond
was taken.- Where a guardian appointed or declared by the Court has
given a bond duly to account for what he may receive in respect of the property
of his ward, the Court may, on application made by petition and on being
satisfied that the engagement of the bond has not been kept, and upon such
terms as to security, or providing that any money received be paid into the
Court, or otherwise as the Court thinks fit, assign the bond to some proper
person, who shall thereupon be entitled to sue on the bond in his own name as
if the bond had been originally given to him instead of to the Judge of the
Court, and, shall be entitled to recover thereon, as trustee for the ward, in
respect of any breach thereof.
36. Suit against guardian where administration-bond
was not taken.- (1) Where a guardian appointed or declared by the
Court has not given a bond as aforesaid, any person, with the leave of the
Court, may, as next friend, at any time during the continuance of the minority
of the ward, and upon such terms as aforesaid, institute a suit against the
guardian, or, in case of his death, against his representative, for an account
of what the guardian has received in respect of the property of the ward, and
may recover in the suit, as trustee for the ward, such amount as may be found
to be payable by the guardian or his representative, as the case may be.
(2) The
provisions of sub-section (1) shall, so far as they relate to a suit against a
guardian, be subject to the provisions of section 440 of the Code of Civil
Procedure, 1882 (14 of 1882) as amended by this Act.
37. General liability of guardian as trustee.- Nothing
in either of the two last foregoing sections shall be constructed to deprive a
ward of his representative of any remedy against his guardian, or the
representative of the guardian, which, not being expressly provided in either
of those sections, any other beneficiary or his representative would have
against his trustee or the representative of the trustee.
Termination of Guardianship
38. Right to survivorship among joint guardians.- On the
death of one of two or more joint guardians, the guardianship continues to
the survivor or survivors until a
further appointment is made by the Court.
39. Removal of guardian.- The
Court may, on the application of any person interested, or of its own motion,
remove a guardian appointed or declared by the Court, or a guardian appointed
by will or other instruments, for any of the following causes, namely,-
(a) for
abuse of his trust;
(b) for
continued failure to perform the duties of his trust;
(c) for
incapacity to perform the duties of his trust;
(d) for
ill-treatment, or neglect to take proper care, of his ward;
(e) for
contumacious disregard of any provision of this Act or of any order of the
Court;
(f) for
conviction of an offence implying, in the opinion of the Court, a defect of
character which unfits him to be the guardian of his ward;
(g)
