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GUARDIANS AND WARDS ACT, 1890
8 of 1890
21st March, 1890
An Act to consolidate and amend the law relating to Guardian and Ward. WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward; It is hereby enacted by follows :-
SECTION 01: TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called The Guardians and Wards Act, 1890.
(2) It extends to the whole of India2 [except the State of Jammu and Kashmir],3[* * *]4[*].
(3) It shall come into force on the first day of July, 1890.
State Amendments
SECTION 02: REPEAL
[Repealed by the Repealing Act, 1938 (I of 1938), Sec. 2 and Schedule.]
SECTION 03: 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 by5[any competent legislature, authority or person in6[any State to which this Act extends]], and nothing in this Act shall be construed to affect, or in any way derogate from, the jurisdiction of authority of any Court of Wards, or to take away any power possessed by7[any High Court8[* *].]
SECTION 04: DEFINITIONS
- In this Act, unless there is something repugnant in the subject or context,-
(1) "minor" means a person who, under the provisions ofthe Indian Majority Act. 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 theCode of Civil Procedure-and includes a High Court in the exercise of its ordinary original civil jurisdiction:State Amendments
9 [(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 underSection 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 the10[State Government], by notification in the11[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 :
(7)12[* * * * * * *] ; and
(8) "prescribed" means prescribed by rules made by the High Court under this Act.
SECTION 04A: 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 authorize 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 Distict 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.]
SECTION 05: POWER OF PARENTS TO APPOINT IN CASE OF EUROPEAN BRITISH SUBJECTS
-[Omitted by Part B States (Laws) Act, 1951 (3 of 1951), S. 3 and Schedule (1-4-1951).]
SECTION 06: SAVING OF POWER TO APPOINT IN OTHER CASES
-In the case of a minor14[* *], 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.
SECTION 07: 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.
SECTION 08: 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
SECTION 09: 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 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 havingjurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a mi nor 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 havingjurisdiction.
SECTION 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 theCode of Civil" Procedure-for the signing and verification of a plaint, and staling, 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 ground on which that person claims;
(k) the causes which have led to the making of the applications; 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.
SECTION 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 theCode of Civil Procedure-on-
(i) the parents of the minor if they are residing in15[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 application 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) The16[State Government] may, by general or special order require that, when any part of the property described in a petition undersection 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).
SECTION 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 section shall authorize --
(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.
SECTION 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.
SECTION 14: SIMULTANEOUS PROCEEDINGS IN DIFFERENT COURT'S
(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.
17[(3) In any other case in which proceedings are stayed under subsection (1), the Courts shall report the case to, and be guided by such
orders as they may receive from, their respective18[State Governments].]
SECTION 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.
19 (2) and (3)[ * * * * * *]
(4) Separate guardians may be appointed or declared of the person and of the property of aminor.
(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.
SECTION 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.
SECTION 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 the minor is old enough to form an intelligent preference, the Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian against his will.
SECTION 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 minor, the order appointing or declaring him shall be deemed to authorize 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.
SECTION 19: GUARDIAN NOT TO BE APPOINTED BY THE COURT IN CERTAIN CASES
Nothing in this Chapter shall authorize 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 a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b)21[* * *] 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.
SECTION 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.
SECTION 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.
SECTION 22: REMUNERATION OF GUARDIAN
(1) A guardian appointed or declared by the Court shall be entitled to such allowance, 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 the22[State Government], by general or special order, directs.
SECTION 31: PRACTICE WITH RESPECT TO PERMITTING TRANSFERS UNDER SECTION 29
(1) Permission to the guardian to do any of the acts mentioned insection 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 the 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 permitted 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 the 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 insection 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.
SECTION 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.
SECTION 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 aplication 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.
SECTION 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 my 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.
SECTION 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) ofsection 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.]
SECTION 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, 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.
SECTION 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 any time 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 ofsection 440 of the Code of Civil Procedureas amended by this Act.
SECTION 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.
SECTION 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 farther appointment is made by the Court.
SECTION 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;
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