Friday, January 27, 2012


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Q 5    What are the OBLIGATIONS on the Guardian of Property of Minor Appointed by the Court?


A:                Once a person, whether natural guardian or a stranger, is appointed guardian of a minor by order of the Court passed in accordance with the provisions of the Act, as contained in Sections 28 to 31, he is clothed with all the obligations imposed with the ward’s property. It is not in his power to throw off those obligations by the exercise of his own volition and pose as a natural guardian and act in that status.

                   PRECEDENCE OF RIGHT FOR GUARDIANSHIP OF PROEPRTY: According to Islamic Law, the following person s are entitled to be guardians of the property of a minor. They have the following order of precedence:

1.                   the father,

2.                 The executor appointed by the father’s will.

3.                 the father’s father.

4.                 The executor appointed by the will of the father’s father.

In default of these guardians the court may appoint a guardian for the protection and preservation of the minor’s property:

1.       MOTHER: She as such, is not the legal guardian of her minor son. She is only a de factor guardian and is therefore not competent to transfer the property of the minor.

2.       BROTHER: He is not a legal guardian of his minor sisters.

3.       UNCLE: Paternal uncle is not a legal guardian under Muslim Law.

4.       OTHER PERSONS: Only the persons mentioned above can act as guardians of the property of the minor. Failing such persons, the court may appoint a proper guardian. Persons not so appointed but acting as de facto guardians cannot bind the minors by their acts.

STATUS OF TESTAMENTARY GUARDIAN: The father or grandfather of the minor may appoint a guardian of his minor children by his will, and such guardian will have the power of a legal guardian.

STATUS OF DE FACTO GUARDIAN: A de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely viodable but void.

MAJOR DUTIES OF GUARDIAN OF THE PROPERTY OF A MINOR: section 27 enjoins upon a guardian to deal with the minor’s property as carefully as it were his own. In case, the guardian has been negligent he is liable for the profits which could have been received but for his gross and willful default.

STANDARD OF CARE: the standard of care required is that by which he has to be judged is that of a prudent man who is acting carefully with his own money. If the guardian is proved to have used ward’s money in his personal business, the ward will be entitled to receive principle sum, as well as the profits guardian has made out of the use of that money.

BREACH OF TRUST: It  is cardinal principle of law that every plain neglect of duty amounts to a breach of trust, and the guardian must compensate his ward for any loss occasioned to ward’s money.

GENERAL POINT OF VIEW OF THE COURT: It is normal practice that no court will uphold a transaction which it considers that a man of ordinary prudence would not have made, in respect of his own property; but where the transaction is sanctioned by the court no court would set aside it.

RECOVERY OF THE POSSESSION OF THE MINOR’S PROEPRTY: A guardian who has been appointed must make all attempts to obtain possession of the property of the minor. A certificated guardian, who has accepted the position of a trustee by virtue of an order passed by a court of law, cannot be say that he did not do his duty but let the properties remain under the management of somebody else. If he does not take any step to reduce into possession the properties of the minor, there is undoubtedly willful default and neglect of duty on the part of the guardian and the court will be entitled to pass a decree for accounts on the basis of default and neglect. 

If through his negligence he has lost some of the property of the ward, and has subsequently spent his own money for recovery of such properties, he will not entitled to recover the money thus spent from the minor but the money spent on recovery of possession from somebody at the time of his accepting office, will be payable to him.

LEGAL PROCEEDINGS: A guardian is under obligation to deal with the property of his ward as if it were his own and to do every thing which is reasonable and proper for the protection and benefit of the property entrusted to him. A guardian may, as such, bring a suit to preserve and protect the rights of the ward.

INVESTMENTS: It is well-settled rule that a guardian while making an investment of the property of the minor, is legally bound to act honestly and faithfully and exercise his own sound discretion like a man of ordinary prudence and intelligence use in their own affairs. He has no power to start an entirely new business unless compelled by necessity and for protection and benefit of the minor.

COMPROMISE: The natural guardian is competent to protect his interests and enter into a compromise provided it is for the benefit of the minor. This is question of fact and must be decided meticulously and jealously in each and every case depending upon its own circumstances.

DEBTS INCURRED FOR NECESSITIES: No doubt, a guardian cannot make covenants in the name of his ward so as to create personal liability on the minor, yet it does not mean that the minor is necessarily exempt from all liabilities in respect of simple contracts entered into by the guardian. If the debts were incurred for necessaries, the ward would be bound to pay them on the general principle embodied in Section 68 of the Contract Act.

NATURE OF NECESSARIES: Necessaries are those suited to minor’s condition in life and include such things as are reasonably required for the nourishment, clothing, lodging, education, health and decent behavour, and appearance of the minor according to his standard in life and fortune. The personal law of minor also plays an important part in the determination of his necessities.

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