[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: -
(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 [Repealed by the Repealing Act, 1938, s. 2 and Sch.]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.
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.]