The Duties, Rights and Liabilities of a Guardian

What the section actually does

The will is the source of the power and also its limit. A testamentary guardian may deal with the ward's immovable property so far as the instrument allows, and no further.

But a restriction in the will can be overridden, on one condition. The guardian must have been declared under this Act, and the court which declared him must permit him by an order in writing to dispose of specified property in a specified manner.

That is the practical reason a testamentary guardian applies to be declared. The declaration adds nothing to his title, which he already has from the will; it gives the court the power to relieve him of a restriction the testator imposed. And a refusal of permission under section 28 is appealable to the High Court under section 47(e).

Section 29: the court-appointed guardian of property

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.

Two exclusions to notice at once. The section does not apply to a Collector, nor to a testamentary guardian, whose position is governed by section 28 instead.

The rest is the model on which section 8(2) of the Hindu Minority and Guardianship Act was built, and the two are almost word for word: the same list of dealings, the same limitation to immovable property, the same five-year and one-year-past-majority lease limits, and the same requirement of previous permission.

Section 30: the transfer is voidable

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.

Read that against section 8(3) of the Hindu Minority and Guardianship Act, under which a disposal is voidable at the instance of the minor or any person claiming under him. The class of persons who may avoid is wider here: any other person affected by the disposal. A co-owner, a reversioner or a person whose own rights are prejudiced may move under section 30, and could not under section 8(3).

What the two share is the essential point. The transaction is voidable and not void: it is good until it is set aside, and it is set aside only at the instance of somebody the section names.

Section 31: how permission is given

This is the section that tells a court how to exercise the power in section 29, and it should be answered in its four parts.

Sub-section (1): the test. Permission shall not be granted except in case of necessity or for an evident advantage to the ward. The identical test as section 8(4) of the 1956 Act.

Sub-section (2): the form of the order. The order granting permission shall recite the necessity or advantage, describe the property, and specify the conditions attached; and it must be recorded, dated and signed by the Judge with his own hand, or, if he is prevented from writing it himself, taken down from his dictation and dated and signed by him.

The requirement to recite the necessity or advantage is not a formality. It is what makes the order reviewable, and it is the first thing to look for when a transaction is later attacked.

Sub-section (3): the conditions the court may attach. Among others:

(a) that a sale shall not be completed without the sanction of the Court; (b) that a sale be made to the highest bidder by public auction, before the Court or a person specially appointed, at a time and place the Court specifies, after such proclamation as it directs; (c) that a lease shall not be made in consideration of a premium, or shall be for such term, rents and covenants as the Court directs; and (d) that the whole or part of the proceeds be paid into Court, to be disbursed, or invested on prescribed securities, or otherwise dealt with as the Court directs.

Sub-section (4): who is heard. Before granting permission the Court may cause notice to be given to any relative or friend of the ward who should in its opinion receive it, and shall hear and record the statement of any person who appears in opposition.

Taken together, sections 29 and 31 are a complete answer to the question how a minor's immovable property may lawfully be sold: an application by the guardian, notice to those interested, a hearing of any opposition, a finding of necessity or evident advantage recited in the order, and such conditions as public auction and payment of the proceeds into court.

Sections 32 and 33: the court's continuing control

Section 32: variation of powers. Where a guardian of property has been appointed or declared by the Court and is not the Collector, the Court may from time to time, by order, define, restrict or extend his powers with respect to the ward's property, in such manner as it considers to be for the advantage of the ward and consistent with the law to which the ward is subject.

Section 32 is the reason the office is a supervised one. The powers a guardian starts with are not fixed for the duration; the court may enlarge or cut them down at any time. An order under it is appealable under section 47(f).

Section 33: the guardian may ask for directions. A guardian appointed or declared by the Court may apply by petition to that Court for its opinion, advice or direction on any present question respecting the management or administration of the ward's property. If the Court considers the question proper for summary disposal, it causes a copy to be served on such interested persons as it thinks fit, who may attend the hearing.

Sub-section (3) is the protection. A guardian who states the facts in good faith and acts upon the opinion, advice or direction given is deemed, so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application.

That is a real and useful immunity, and it is the answer to a question about how a guardian protects himself when a decision is difficult: he asks the court first.

Sections 34 and 34A: the obligations to account

Where a guardian of property has been appointed or declared by the Court and is not the Collector, he shall:

(a) if so required by the Court, give a bond in the prescribed form to the Judge of the Court, with or without sureties, engaging duly to account for what he receives in respect of the ward's property;

(b) if so required, deliver a statement of the ward's immovable property, of the money and other movable property received on the ward's behalf, and of the debts due to and from the ward, within six months of his appointment or declaration or such other time as the Court directs;

(c) if so required, exhibit his accounts in Court at such times and in such form as the Court directs;

then, if so required, pay into Court at the time the Court directs the balance due from him on those accounts, or so much of it as the Court directs; and

finally, apply for the maintenance, education and advancement of the ward, and of persons dependent on him, and for the celebration of ceremonies to which the ward or any of them may be a party, such portion of the income of the ward's property as the Court directs, and, if the Court so directs, the whole or any part of that property.

A numbering oddity, stated because it is in the text and not glossed over. The copy of the Act published on India Code letters these clauses (a), (b), (c), (e), (f), with no clause (d). Section 45(1)(b) of the same Act penalises a failure to pay the balance "in compliance with a requisition under clause (d) of that section", and section 50(1)(d) speaks of "clauses (a), (b), (c) and (d) of section 34". The obligation to pay the balance is therefore clause (d), and the printed "(e)" appears to be a misprint. There are five obligations, and this book states them in order rather than by a letter it cannot vouch for.

Section 34A, inserted in 1929: where accounts are exhibited under clause (c) or otherwise, the Court may appoint a person to audit the accounts and direct that his remuneration be paid out of the income of the property.

The five obligations answer MU's kind of question about the liabilities of a guardian directly: bond, statement, accounts, payment of the balance, and application of the income for the ward's maintenance, education, advancement and ceremonies. Note that the first four are each prefaced with "if so required by the Court", so they arise on the court's requisition; the last does not, and is a standing duty.

Sections 35 to 37: enforcing the account

The Act gives three routes, and they are graded.

Section 35: where a bond was taken. Where the guardian has given a bond duly to account, the Court may, on a petition and on being satisfied that the engagement of the bond has not been kept, assign the bond to some proper person, who may then sue on it in his own name as if it had been given to him, and recover on it as trustee for the ward. The Court may impose terms as to security or as to money recovered being paid into Court.

Section 36: where no bond was taken. Any person, with the leave of the Court, may as next friend, at any time during the minority of the ward, sue the guardian, or his representative if he is dead, for an account of what he has received in respect of the ward's property, and recover as trustee for the ward whatever is found payable. The sub-section is subject to the provisions of the Code of Civil Procedure about suits by next friend.

Section 37: the general liability. Nothing in sections 35 and 36 deprives a ward or his representative of any remedy against his guardian, or the guardian's representative, which any other beneficiary would have against his trustee.

What sections 35 to 37 add up to

The guardian is a trustee of the ward's property, and section 20's fiduciary relation is the principle of which these are the machinery.

The remedy exists during the minority, by section 36, which matters because a minor cannot sue in his own name; a next friend does it with the court's leave.

And section 37 keeps the general law available. The two statutory routes are not exhaustive: every remedy a beneficiary has against a trustee remains open, which reaches tracing, an account of profits and the rest of the law of trusts.

The two Acts side by side, on property

A worked example

A district court appoints Nalini guardian of the property of her nephew Aryan, aged twelve, who owns a house and some shares. She wants to sell the house to fund his education, to let the outhouse for eight years, and to sell the shares.

The shares. No permission is needed. Section 29 covers only immovable property, and the sale of movables is governed by section 27: she must deal with the property as carefully as a man of ordinary prudence would deal with it if it were his own, and may do all acts reasonable and proper for its realisation, protection or benefit.

The house. Section 29(a) forbids a transfer by sale without the previous permission of the court.

On what will the court give permission? Section 31(1): only in case of necessity or for an evident advantage to the ward. The order must recite the necessity or advantage, describe the property and specify any conditions, and be recorded, dated and signed by the Judge with his own hand.

What conditions might it carry? Under section 31(3), that the sale not be completed without the court's sanction; that it be by public auction to the highest bidder after such proclamation as the court directs; and that the proceeds be paid into court to be invested on prescribed securities.

Who else is heard? By section 31(4) the court may give notice to any relative or friend of the ward, and shall hear and record the statement of anybody who appears in opposition.

The eight-year lease. Section 29(b) forbids a lease for a term exceeding five years, or extending more than one year beyond the date the ward ceases to be a minor, without permission. Eight years fails on the first arm.

Suppose she sells the house without asking. Section 30: the disposal is voidable at the instance of any other person affected thereby, which is wider than section 8(3) of the Hindu Minority and Guardianship Act, where only the minor or a person claiming under him may avoid.

Suppose she is unsure whether to sell at all. Section 33: she may apply by petition for the court's opinion, advice or direction, and if she states the facts in good faith and acts on what she is told, she is deemed to have performed her duty so far as her own responsibility goes.

What must she account for? Section 34: if required, a bond, a statement of the ward's property within six months, accounts as directed, and payment of the balance into court; and she must apply such portion of the income as the court directs to Aryan's maintenance, education and advancement and to ceremonies.

If she does not account? Section 35 allows the court to assign the bond to a proper person who may sue on it as trustee for the ward; section 36, where no bond was taken, allows a suit by a next friend with the court's leave; and section 37 preserves every remedy a beneficiary has against a trustee.

What it does NOT mean

Section 27 does not require perfection. The standard is the ordinary prudence a person would use about his own property.

Section 28 is not a general power. A testamentary guardian's power over immovable property is limited by the instrument, and only a declaration plus a written order of the declaring court can override a restriction in it.

Section 29 does not bind everybody. It excepts the Collector and a guardian appointed by will or other instrument.

Section 30 is not the same as section 8(3) of the 1956 Act. Here the transfer is voidable at the instance of any other person affected; there, only the minor or one claiming under him.

Section 31(2) is not a formality. The order must recite the necessity or advantage, which is what makes it reviewable.

Section 32 does not fix the guardian's powers once and for all. The court may define, restrict or extend them from time to time.

Section 33 is not a general immunity. It protects the guardian only in the subject-matter of the application, and only if he stated the facts in good faith and acted on the direction.

The first four obligations in section 34 are not automatic. Each is prefaced "if so required by the Court"; only the application of income for the ward's maintenance, education, advancement and ceremonies stands without a requisition.

Quick revision

• s.26: a court-appointed guardian of the person may not remove the ward from the jurisdiction without leave, unless he is the Collector or a testamentary guardian; breach is punished by s.44.
• s.27: deal with the property as a man of ordinary prudence would with his own, and do all acts reasonable and proper for its realisation, protection or benefit.
• s.28: a testamentary guardian's power over immovable property is subject to the restrictions in the instrument, unless he is declared under the Act and the declaring court permits him by an order in writing.
• s.29: a court-appointed guardian of property, not being the Collector or a testamentary guardian, needs previous permission to mortgage, charge, sell, gift, exchange or otherwise transfer immovable property, or to lease beyond five years or one year past majority.
• s.30: a disposal in breach of s.28 or s.29 is voidable at the instance of any other person affected.
• s.31: permission only on necessity or evident advantage; the order must recite it, describe the property, specify conditions, and be signed by the Judge with his own hand; conditions may include court sanction, public auction, restrictions on a lease premium, and payment of proceeds into court; opposition must be heard and recorded.
• s.32: the court may define, restrict or extend the guardian's powers. s.33: he may seek the court's opinion, advice or direction and is protected if he acts on it in good faith.
• s.34: on the court's requisition, a bond, a statement within six months, accounts, and the balance; and he must apply the income to the ward's maintenance, education, advancement and ceremonies. s.34A: the court may appoint an auditor paid out of the income.
• ss.35 to 37: suit on the assigned bond; suit by a next friend where no bond was taken; and every remedy a beneficiary has against a trustee is preserved.

Test yourself

1. What is a guardian of property bound to do, and what may he do? He is bound to deal with the property as carefully as a man of ordinary prudence would deal with it if it were his own, and subject to Chapter III he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.

2. What may a court-appointed guardian of property not do without the court's permission? Mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the ward's immovable property; or lease any part of it 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.

3. On what terms will the court permit such an act? Only in case of necessity or for an evident advantage to the ward. The order must recite the necessity or advantage, describe the property, and specify the conditions attached, and must be recorded, dated and signed by the Judge with his own hand. The court may require the sale to be by public auction, or not to be completed without its sanction, or the proceeds to be paid into court.

4. What is the effect of a disposal made without permission? Under section 30 it is voidable at the instance of any other person affected by it.