Introduction:

         The law of guardianship is based on the incapacity which the law attributes to minors and to persons who are deficient in mental capacity. Guardian is a person who formally appointed to look after a child's interest on the death of child's parents. Appointment can be made either by the Courts during family proceedings, if it is considered necessary for the child's welfare, or privately by any parent with parental responsibility.

Testamentary Guardian:

          Testamentary Guardian is a person appointed by who will to be the 'guardian of a child' under 18. (See.... who is Minor  ) Under the old law only the Father by which will could appoint a testamentary guardian. Under the Hindu minority and guardianship Act 1956, even the mother can do so. The powers of the testamentary guardian are not higher than those of a natural guardian. They are subject to the limitations imposed by the will. This was so under the old Law also. But under the new law, the testamentary guardian's power's are statutorily curtailed just like the power of natural guardians. That is, the prior permission of the court is required for alienations as in the case of a natural guardian.


Who may Appoint? 

   Following persons may appoint a Testamentary Guardian

(1) The Father, Natural and adaptive

(2) The Mother, Natural and Adaptive.

(3) The widowed mother, natural and adaptive.


Testamentary guardians and their powers (Section 9 of the Hindu Minority and Guardianship Act 1956)

             (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

            (2) An appointment made under sub-section (1) shall have not effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

           (3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

          (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both.

          (5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.

          (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.


See also:

Natural Guardian: Meaning, Definition and Powers of Natural Guardian 


0 comments:

Post a Comment

See Also..