This article on ‘Testamentary Guardianship under Hindu Law’ has been written by Nishant Vimal, a 3rd-year student of Symbiosis Law School, Hyderabad. The author in this article discusses the concept of appointing a guardian by way of Will. This article revolves around the dynamics surrounding the testamentary guardianship.

Concept of Testamentary Guardian and its derivation

Testamentary Guardian is a guardian who is appointed by way of will. It is done to ensure that the child will have a guardian even after the death of the natural guardian who may require supervision over themselves or their estate. A testamentary guardian cannot act as a guardian if the natural guardians are alive.

During the British period, testamentary powers were conferred upon the Hindus and then, this was a way for a father to exclude the mother of her right of being the natural guardian of the child.

After the enactment of Hindu Minorities and Guardianship Act of 1956, it is clear that natural guardians will have the preference over any other guardian. If the Father appoints a Testamentary guardian and mother outlives him, she will be the natural guardian. The testamentary guardian can only exercise his rights and power after the passing of the Mother.

Other forms of guardianship

1. Natural Guardians: They are the primary guardians, and they are usually the Father, Mother and Husband. Father is considered to be the natural guardian and then after him, the mother. The issue of equality was raised in the case of Gita Hari Haran v. Reserve Bank of India (1), where the constitutionality of Section 6 (a) was raised because it stated that, first Father will be the natural guardian and then after him, the Mother. This was considered as a violation of Article 14 which guarantees Right to Equality. The court answered that the word ‘then after him’ is to be understood and interpreted as ‘in the absence of’ and hence it is not ultra vires i.e. unconstitutional.
2. Guardians Appointed by the Court: Courts appoint guardians under the Guardians and Wards Act, 1880. Usually, the district court exercises this power, and there are certain requirements that the person appointed needs to fulfil. The wishes of the parents are to be considered along with the proposed person’s age, sex and the requirements of the child. The welfare of the child is to be given utmost importance as it of paramount consideration.
3. Any person empowered to act as such by or under any enactment relating to any court of wards. As per Order 32 of the Civil Procedure Code, a guardian may be appointed for the purpose of maintaining the property which is in the custody, for the time being, of the court of wards. Guardian of the minor may be appointed under the provisions of the Court of Wards Act to take care of him and his property.

Who may appoint a Testamentary Guardian?

Following persons have the power and authority to appoint a Testamentary Guardian:

1. A Hindu Father, either natural or adoptive
2. A Hindu Mother, either Natural or Adoptive.
3. A Hindu Widowed Mother, either natural or adoptive.

Powers of Testamentary Guardian

Section 9 of the Hindu Minorities and Guardianship Act of 1956 states about Testamentary guardian and its powers.

Section 9 (1) states that a Hindu father, who is the natural guardian of a minor legitimate child, has the authority and power to appoint any person to be the guardian of that child by including it into his will. He will be the guardian to take care of the person and his/her property.

Will the appointment made by Father prevail over appointment made by Mother

As mentioned in Section 9 (2), if the Mother appoints any Testamentary guardian in her will, the appointment made by Father will be rendered ineffective. The Testamentary guardian appointed by Mother will have a preference. But if Mother fails to mention anyone in her will, the Testamentary Guardian appointed by father will become the guardian.

For example, A is the Father who appointed C as the testamentary guardian after his death. He died and B, the mother, becomes the natural guardian as per Section 6 (a). She appoints D as the Testamentary guardian of X, their son. After the death of B, D will become the Testamentary guardian as Father predeceases the mother so the appointment made by him will be invalidated if the mother appoints someone. In this situation, the mother appointed D, so he will become the guardian.

In case of a minor legitimate child, Section 9 (3) states that a Hindu Widow and a Hindu Mother both can appoint a guardian by will to manage the child and his property. Provided that the Father of the child is legally disqualified to be the natural guardian.

Section 9 (4) states that a Hindu Mother, who is entitled to be the natural guardian, can by will appoint a testamentary guardian for any minor illegitimate child to take care of him and his property.

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Who is disqualified from becoming a testamentary guardian?

In the case of Smt. Vinod Kumari v. Smt. Draupadi Devi, Hindu female approached the court for the guardianship of two of her sons. One was born out of her wedlock with the deceased husband and one was born to her husband in another wedlock. It was considered by the court that she is the step-mother of the one born out of the previous wedlock and hence court held that a step-mother can never be a testamentary guardian and in this case, the grandmother was made the testamentary guardian of the step-son.

Does testamentary guardian have the same powers as a natural guardian

According to Section 9 (5), a Testamentary guardian has the same powers as the natural guardian and can exercise all the powers that were vested in the Natural Guardian. Only restrictions on his exercise of power will be derived from the will made by the natural guardian and by what is prescribed in the Act. Although it is to be noticed that the powers of Testamentary Guardian are not more than that of a Natural Guardian.

Guardianship of a minor girl will end on the marriage of the girl as the natural guardian of the girl will be the Husband after the marriage. This is mentioned in Section 9 (6) of the Hindu Minorities and Guardianship Act, 1956.  

Can a Testamentary Guardian alienate a minor’s property?

Testamentary Guardian can alienate any minor’s property that is for the benefit of the minor. But, Testamentary Guardian has to seek the permission of the court before doing so. Court will inquire whether the alienation is for the welfare of the minor or not. He can only do so if there is a situation where the property had to be sold.

What is the difference between a Testamentary guardian and a Natural Guardian?

Can a testamentary guardian be given preference over any relative?

In the case of Ram Chandra v. Sayarbhai, where the husband died and in his will, he appointed his cousin as the testamentary guardian of his wife. The question before the court was for the guardianship of the wife of the deceased. Here, even though the Father in Law of the wife was living, the court gave the guardianship rights to the cousin of the deceased as the father in law used to ill-treat the wife and as any guardian is to be appointed keeping in mind the welfare of the party, he was given the guardianship rights. Welfare principle is to be given paramount consideration and hence cousin was given the rights.

How can a Testamentary Guardian be disqualified?

There are situations when the Testamentary Guardian is not considered to be fit to be a guardian and hence, he can be disqualified. Section 39 of the Guardian and Wards Act states certain grounds for the removal of a testamentary guardian:

1) If there is ill-treatment on part of the testamentary guardian towards the child.

2) If he fails to perform his assigned duties.

3) If he is incapable to perform his assigned duty.

4) Abuse of his trust.

5) If he acts in any way which is against any of the provisions of the Act.

6) Conviction in any case for any offense.

7) Having an adverse interest in the ward.

8) If he ceases to live within the local limits of the jurisdiction of the court, and

9) If he is insolvent or bankrupt.

In addition to these grounds, the Hindu Minority and Guardianship Act, 1956 prescribes the following grounds for disqualification:

(i) If he ceases to be Hindu, or

(ii) If he has completely renounced the world.

Conclusion

Guardianship is the concept of taking care of a legitimate or illegitimate child or a married daughter. Hence it can be understood that it is important for the society so that anyone who requires guardianship, can witness a violation of his rights if not taken due care of. Guardianship is given to take care of any child and take decisions which are needed to be decided upon. It can be seen that in the present world order it is necessary to have a guardian for a number of reasons.

Testamentary Guardianship is an important aspect of guardianship as it is not possible for the natural guardians to be present hence testamentary guardian was introduced which is one of the types of guardianship which takes effect on the death of the last surviving parent or legal guardian of the child. Any of the natural Guardian can appoint any testamentary guardian by way of will. The reader will be able to extract information about all the aspects of testamentary guardianship from this article. This article contains real-life questions which have been answered to the best of the author’s knowledge.  

Reference

1. AIR 1999 SC 1149.

2. www.srdlawnotes.com

3. Hindu Minorities and Guardianship Act, 1956 by Mulla

4. www.legalservices.com