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THE GUARDIANS AND WARDS ACT, 1890
ACT NO. 8 OF 1890 1*
[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 as follows – | | CHAPTER I
PRELIMINARY
1. Title, extent and commencement.
This Act may be called the Guardians and Wards Act, 1890.
(2) It extends to the whole of India 2*[except the State of Jammu and Kashmir],
(3) It shall come into force on the first day of July, 1890.
2. Repeal.
Rep. by the Repealing Act, 1938 (1 of 1938), s. 2 and Sch. |
Saving of jurisdiction of Courts of Wards and Chartered High Courts |
| | 3. This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by 5*[any competent legislature, authority or person in 6*[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 or authority of any Court of Wards, or to take away any power possessed by 1*[any High Court 2****].
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1. This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Sch. I and Laccadive, Minicoy and Admindivi Islands by Reg. 8 of 1965, s. 3 and Sch.
This Act has been extended to Pondicherry by Act 26 of 1968, with the following modification:
In section 1, after sub-section (2), insert –
"Provided that nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry.".
The Act shall come into force in the State of Sikkim on 1.9.1984 vide Notifn. No. S. O. 644(E), dated 24.8.84 Gaz of India, Exty. Pt. II, Sec.3(ii).
2. Subs. by Act 3 of 1951, s. 3 and Sch., for "except Part B States".
3. The words "inclusive of British Baluchistan" rep. by the A.O. 1948.
4. The word "and" omitted by Act 40 of 1949, s. 3 and Sch. II
5. Subs. by the A.O. 1937, for "the G.G. in C., or by a Governor or Lieutenant-Governor in Council".
6. Subs. by Act 3 of 1951, s. 3 and Sch., for "Part A States and Part C States".
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| | 4. 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 3* Code of Civil Procedure (14 of 1882), and includes a High Court in the exercise of its ordinary original civil jurisdiction:
(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
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1. Subs. by the A. O. 1937, for "any High Court established under the Statute 24 and 25 victoria, Ch. 104 (an Act for establishing High Courts of Judicature in India)".
2. The words "established in Part A States and Part C States" omitted by Act 3 of 1951, s. 3 and Sch.
3. See now the Code of Civil Procedure, 1908 (5 of 1908).
4. Subs. by Act 4 of 1926, s. 2, for the original cl. (5).
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(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:
(8) "Prescribed" means prescribed by rules made by the High Court under this Act.
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1. Cl. (7) omitted by Act 3 of 1951, s. and Sch.
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Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.
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 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 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 Sch.
6. Saving of power to appoint in other cases.
In the case of a minor 2****, 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. |
Power of the Court to make order as to guardianship |
| | 7. (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.
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1. Ins. by Act 4 of 1926, s. 3.
2. The words "who is not an European British subject" omitted by Act 3 of 1951, s. 3 and Sch.
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(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. (1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the 1* Code of Civil Procedure (14 of 1882), 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;
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1. See now the Code of Civil Procedure, 1908 (5 of 1908).
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(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, 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, 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 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 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. |
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Procedure on admission of application |
| | 11. (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 1* Code of Civil Procedure (14 of 1882) on –
(i) the parents of the minor if they are residing in 2*[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, 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) 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.
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1. See now the Code of Civil Procedure, 1908 (5 of 1908).
2. Subs. by Act 3 of 1951, s. 3 and Sch., for "a Part A State or a Part C State".
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(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.
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. |
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Simultaneous proceedings in different Courts |
| | 14. (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.
(3) In any other case in which proceedings are stayed under sub-section (1), the Courts 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.
(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.
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1. Subs. by the A. O. 1937 for the original sub-section (3).
2. Sub-sections (2) and (3) omitted by Act 3 of 1951, s. 3 and Sch.
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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 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. |
Appointment or declaration of Collector in virtue of office |
| | 18. 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.
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) 2** 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
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1. Sub-section (4) omitted by Act 3 of 1951, s. 3 and Sch.
2. The words "subject to the provisions of this Act with respect to European British subjects" omitted by s. 3 and Sch., ibid.
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(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
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. |
Capacity of minors to act as guardians |
| | 21. 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 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 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 1* notification in the Official Gazette, appoints in this behalf. |
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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,
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1. For notifications appointing authorities to whose control Collectors appointed under the Act shall be subject, see different local R. & O. and such other matters as the law to which the ward is subject requires.
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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 his 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 1* Code of Criminal Procedure, 1882 (10 of 1882).
(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 (1) may be special or general, and may be defined by the order granting it. |
| | 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 –
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1. See now the Code of Criminal Procedure, 1898 (5 of 1898).
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(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. Void ability 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. |
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Practice with respect to permitting transfers under section 29 |
| | 31. (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 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 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 the act permitted shall be paid into the Court by the guardian, to be disbursed there from 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 |
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