GUARDIANS AND WARDS ACT,1890
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[Repealed by the Repealing Act, 1938, s. 2 and Sch.]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.]