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THE
GUARDIANS AND WARDS ACT,1890
[Act No. 8 of Year 1890,
dated 21st. March, 1890]
An Act to
consolidate and amend the law relating to guardians and
wards
WHEREAS it is
expedient to consolidate and amend the law relating to guardian and
ward; it is hereby enacted as follows: -
CHAPTER I: PRELIMINARY 1. Title, extent and
commencement
(1) This Act may be called the Guardians and Wards Act, 1890.
(2) It extends to whole of India l[except the State of Jammu and
Kashmir].2[***]
(3) It shall come into force on the first day of
July, 1890.
2. [Repealed by
the Repealing Act, 1938, s. 2 and Sch.]
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
3[any competent Legislature, authority or person in 4[any State to
which this Act extends]]; and nothing in this Act shall be construed
to effect or in any way derogate from , the jurisdiction or
authority of any Court of Wards , or to take away any power
possessed by 5[any High Court 6[* * *]].
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)7, and
includes a High Court in the exercise of its ordinary original civil
jurisdiction;
8[(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 declared 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.
(c) in respect of any proceeding
transferred under section 4A, 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;
9[(7) [* * *]; 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, or authorise 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
a 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
[Rep.
by the Part B States (Laws) Act, 1951 (3 of 1951), s. 3 and
Schedule].
6. Saving of
power to appoint in other cases
In the case of a minor,
10[***] 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 of -
(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)7, 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 if 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 relations 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, 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).
(3) 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)11
on-
(i) the parents of the minor if they are residing in 11[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
applicant 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 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 or 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 sections shall authorise-
(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.
14.
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 courts 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.
12[(3) In
any other case in which proceedings are stayed under sub-section
(l),the court shall report the case to, and be guided by such orders
as they may receive from their respective State Governments.]
15.
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.
13[* * *]
(4)
Separate guardians may be appointed or declared of the person and of
the property of a minor.
(5) 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.
16.
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, on production of a certified copy of the
order appointing or declaring the guardian accept him as duly
appointed or declared and give effect to the order.
17. 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 minor is old enough to form an
intelligent preference , the court may consider that preference.
14[* * *]
(5) The court shall not appoint or declare any
person to be a guardian against his will.
Comment: We are,
however, satisfied having regard to the circumstances of the case
and the past history that the custody of the child should be
immediately given to the mother as the child is less than 5 years
old. The mother will, therefore, have the custody of the child. It
will, however, be open to the father, that is, respondent No. 1 to
apply for the custody of the child in appropriate guardianship
proceedings. The respondent No. 1, however, will be entitled to
visit the residence of the petitioner @page-SC1157 and be with the
child during week ends (on Saturdays and Sundays)., Smt. Manju
Tiwari v. Dr. Rajendra Tiwari, AIR 1990
SUPREME COURT
1156
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 manor, the order appointing or declaring him shall be
deemed to authorise and require the person for the time being
holding the office to act as guardian of the minor with respect to
his person or 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 authorise 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 married female and
whose husband is not, in the opinion of court, unfit to be guardian
of her person; or
(b) 15[* * *] 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 allowances, 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 the 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)16.
(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 (l) may be special or 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 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
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
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 that
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 that 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 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.
(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
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 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 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 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.
17[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 anytime 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 as amended by this Act, 1882 (14 of 1882)18.
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
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
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 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, of 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 the 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
(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
(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
be 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 has 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
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 is still a minor, appoint or declare another guardian of his
person or property, or both, as the case may be.
CHAPTER IV: SUPPLEMENTAL PROVISIONS
43. Orders
for regulating conduct or proceedings of guardian, and enforcement
of those orders
(1) The court may, on the application of any
person interested or of its own motion, make an order regulating the
conduct or proceedings of any guardian appointed or declared by the
court.-
(2) Where there are more guardians than one of a ward
and they are unable to agree upon a question affecting his welfare,
any of them may apply to the court for its direction, and the court
may make such order respecting the matter in difference as it thinks
fit.
(3) Except where it appears that the object of making an
order under sub-section (1) or sub-section (2) would be defeated by
the delay, the court shall, before making the order, direct notice
of the application therefor or of the intention of the court to make
it, as the case may be, to be given in a case under sub-section (1),
to the guardian or, in a case under sub-section (2), to the guardian
who has not made the application.
(4) In case of disobedience to
an order made under sub-section (1) or sub-section (2), the order
maybe enforced in the same manner as an injunction granted under
section 492 or section 493 of the Code of Civil Procedure, 1882 (14
of 1882)19, in a case under sub-section (1), as if the ward were the
plaintiff and the guardian were the defendant or, in a case under
sub-section (2), as if , the guardian who made the application were
the plaintiff and the other guardian were the defendant.
(5)
Except in a case under sub-section (2), nothing in this section
shall apply to a Collector who is, as such, a guardian.
44. Penalty
for removal of ward from jurisdiction
If, for the purpose or
with the effect of preventing the court from exercising its
authority with respect to a ward, a guardian appointed or declared
by the court removes the ward from the limits of the jurisdiction of
the court in contravention of the provisions of section 26, he shall
be liable, by order of the court, to fine not exceeding one thousand
rupees, or to imprisonment in the civil jail for a term which may
extend to six months.
45. Penalty
for contumacy
(1) In the following cases, namely,-
(a)
If a person having the custody of a minor fails to produce him or
cause him to be produced in compliance with a direction under
section 12, sub-section (1), or to do his utmost to compel the minor
to return to the custody of his guardian in obedience to an order
under section 25, sub-section (1); or
(b) if a guardian
appointed or declared by the court fails to deliver to the court,
within the time allowed by or under clause (b) of section 34, a
statement required under that clause, or to exhibit accounts in
compliance with a requisition under clause (c) of that section, or
to pay into the court the balance due from him on those accounts in
compliance with a requisition under clause (d) of that section;
(c) if a person who has ceased to be a guardian , or the
representative of such a person, fails to deliver any property or
accounts in compliance with the requisition under section 41,
sub-section (3),
the person, guardian or representative, as the
case may be, shall be liable, by order of the court, to fine not
exceeding one hundred rupees, and in case of recusancy to further
fine not exceeding ten rupees for each day after the first during
which the default continues, and not exceeding five hundred rupees
in the aggregate, and to detention in the civil jail until he
undertakes to produce the minor or cause him to be produced, or to
compel his return, or to deliver the statement, or to exhibit the
accounts or to pay the balance, or to deliver the property or
accounts, as the case may be.
(2) If a person who has been
released from detention on giving an undertaking under sub-section
(1) fails to carry out the undertaking within the time allowed by
the Court, the court may cause him to be arrested and recommitted to
the civil jail.
46. Reports
by Collectors and subordinate Courts
(1) The court may call
upon the Collector, or upon any court subordinate to the court, for
a report on any matter arising in any proceeding under this Act, and
treat the report as evidence.
(2) For the purpose of preparing
the report the Collector or the Judge of the subordinate court, as
the case may be, shall make such inquiry as he deems necessary, and
may for the purposes of the inquiry exercise any power of compelling
the attendance of a witness to give evidence or produce a document
which is conferred on a court by the Code of Civil Procedure, 1882
(14 of 1882)7.
47. Orders
appealable
An appeal shall lie to the High Court from an
order made by a 20[* * *] court-
(a) under section 7, appointing
or declaring or refusing to appoint or declare a guardian; or
(b) under section 9, sub-section (3), returning an application;
or
(c) under section 25, making or refusing to make an order for
the return of a ward to the custody of his guardian; or
(d)
under section 26, refusing leave for the removal of a ward from the
limits of the jurisdiction of the court, or imposing conditions with
respect thereto; or
(e) under section 28 or section 29, refusing
permission to a guardian to do an act referred to in the section;
or
(f) under section 32, defining, restricting or
extending the powers of a guardian; or
(g) under section 39,
removing a guardian; or
(h) under section 40, refusing to
discharge a guardian; or
(i) under section 43, regulating the
conduct or proceedings of a guardian or settling a matter in
difference between joint guardians or enforcing the order ; or
(j) under section 44 or section 45, imposing a penalty.
48. Finality
of other orders
Save as provided by the last foregoing
section and by section 622 of the Code of Civil Procedure 1882 (14
of 1882)21, an order made under this Act shall be final, and shall
not be liable to be contested by suit or otherwise.
49. Costs
The costs of any proceeding under this Act, including the
costs of maintaining a guardian or other person in the civil jail,
shall, subject to any rules made by the High Court under this Act,
be in the discretion of the court in which the proceeding is, had.
50.Power of
High Court to make rules
(1) In addition to any other power
to make rules conferred expressly or impliedly by this Act, the High
Court may from time to time make rules consistent with this Act-
(a) as to the matters respecting which, and the time at which,
reports should be called for from Collectors and subordinate courts;
(b) as to the allowances to be granted to, and the security to
be required from, guardians, and the cases in which such allowances
should be granted;
(c) as to the procedure to be followed with
respect to applications of guardians for permission to do acts
referred to in sections 28 and 29;
(d) as to the circumstances
in which such requisitions as are mentioned in clauses (a), (b), (c)
and (d) of section 34 should be made;
(e) as to the preservation
of statements and accounts delivered and exhibited by guardians;
(f) as to the inspection of those statements and accounts by
persons interested;
17[(ff) as to the audit of accounts under
section 34A, the class of persons who should be appointed to audit
accounts, and the scales of remuneration to be granted to them;]
(g) as to the custody of money, and securities for money,
belonging to wards;
(h) as to the securities on which money
belonging to wards may be invested;
(i) as to the education of
wards for whom guardians, not being Collectors, have been appointed
or declared by the court; and
(j) generally, for the guidance of
the courts in carrying out the purposes of this Act.
(2) Rules
under clauses (a) and (i) of sub-section (1) shall not have effect
until they have been approved by the 22[State Government], nor shall
any rule under this section have effect until it has been published
in the Official Gazette.
51.
Applicability of Act to guardians already appointed by Court.
A guardian appointed by, or holding a certificate of
administration from a civil court under any enactment repealed by
this Act shall, save as may be prescribed, be subject to the
provisions of this Act, and of the rules, made under it, as if he
had been appointed or declared by the court under Chapter II.
52. Amendment
of Indian Majority Act
[Repealed by the Repealing Act,
1938 (1 of 1938), s. 2 and Sch. ].
53. Amendment
of Chapter XXXI of the Code of Civil Procedure
[Repealed by
the Code of Civil Procedure, 1908 (5 of 1908), s. 156 and Sch. V ]
THE SCHEDULE
Enactments repealed -[Rep. by the
Repealing Act, 1938 (1 of 1938), s. 2 and Sch.]
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