Chapter III
DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
General
20. Fiduciary relation of guardian to ward.
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.
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.
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.
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.
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.
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 arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).[i]
(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.
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 is 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 or general, and may be defined by the order granting it.
Guardian of property
27. Duties of guardian of property.
27. Duties of guardian of property.—A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and, 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.
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 declared by the Court.
29. Limitation of powers of guardian of property appointed or declared 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 change, 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.
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 person affected thereby.
31. Practice with respect to permitting transfers under Section 29.
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 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 guardians of property appointed or declared by the Court.
32. Variation of powers of guardians 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, 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.
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.
(2) 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.
(3) 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.
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 the 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 date to or from the ward;
(c) if so required by the Court, exhibit 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 times as the Court directs the balance due on 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 him, 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.
34-A. Power to award remuneration for auditing accounts.
[ii][34-A. 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 income of the property.]
35. Suit against guardian where administration-bond was taken.
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.
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.[iii]
37. General liability of guardian as trustee.
37. General liability of guardian as trustee.—Nothing in either of the two last foregoing sections shall be construed to deprive a ward or 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 of survivorship among joint guardians.
38. Right of survivorship among joint guardians.—On the death of one or 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.
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 a will or other instrument, 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) for having an interest adverse to the faithful performance of his duties;
(h) for ceasing to reside within the local limits of the jurisdiction of the Court;
(i) in the case of a guardian of the property, for bankruptcy or insolvency;
(j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject:
Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed—
(a) for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that that person made and maintained the appointment in ignorance of the existence of the adverse interest, or
(b) for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian.
40. Discharge of guardian.
40. Discharge of guardian.—(1) If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged.
(2) If the Court finds that there is sufficient reason for the application, it shall discharge him, and if the guardian making the application is the Collector and the State Government approves of his applying to be discharged, the Court shall in any case discharge him.
41. Cessation of authority of guardian.
41. Cessation of authority of guardian.—(1) The powers of a guardian of the person cease—
(a) by his death, removal or discharge;
(b) by the Court of Wards assuming superintendence of the person of the ward;
(c) by the ward ceasing to be a minor;
(d) in the case of a female ward, by her marriage to a husband who is not unfit to guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit; or
(e) in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.
(2) The powers of a guardian of the property cease—
(a) by his death removal or discharge;
(b) by the Court of Wards assuming superintendence of the property of the ward; or
(c) by the ward ceasing to be a minor.
(3) When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward.
(4) When he was delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered.
42. Appointment of successor to guardian dead, discharged, or removed.
42. Appointment of successor to guardian dead, discharged, or removed.—When a guardian appointed or declared by the Court is discharged, or, under the law to which the ward is subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ward still a minor, appoint or declare another guardian of his person or property, or both, as the case may be.
References
[i] See now the Code of Criminal Procedure, 1898 (5 of 1898).
[ii] Inserted by Act 17 of 1929, S. 2.
[iii] See now Order XXXII, Rules 1 and 4(2), in the First Schedule to the Code of Civil Procedure, 1908 (Act 5 of 1908).
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