TESTAMENTARY GUARDIAN
Testamentary guardians of a minor are those guardians who are appointed by
will of the natural guardian, entitled to act as the guardians of the minor.
Needless to say a will become effective only after the death of testator.
9. Testamentary guardians and their powers.—(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 no 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
Who may Appoint Guardian by will
(a) The father, natural or adoptive
(b) The mother, natural or adoptive
(c) The widowed mother, natural or adoptive.
Smt Mohini v Varinder Kumar- this is a landmark judgment by
Madras High Court , it was held that restrictions are imposed on the
alienating power of natural guardians as provided under section 8(2) of
the Hindu Minority and Guardianship Act. If the testamentary guardian
wants to dispose of the property , it has to be with the sanction of the
court. It was further held in this case that provisions of this Act will
have the overriding effect on the provisions of The Guardians and
Wards Act, which empowers the testamentary guardian to dispose of
the property of minor.
Differences between powers of a natural guardian and those of a
testamentary guardian- The natural guardians has all the powers laid
down under the provisions of section 8 of the Hindu Minority and
Guardianship Act. However the powers of testamentary guardians can
be restricted by will under which he is appointed. Thus a testamentary
guardian of a person of a minor cannot act as guardian of a property of
a minor. Similarly a testamentary guardian of property of a minor
cannot act as a testamentary guardian of the person of a minor.
Removal of Testamentary Guardian
Under section 39 of the Guardians and Wards Act, testamentary guardian can be
removed by the Court. So it may be noted that this Act does not abrogate the
provisions of section 39 of the Guardians and Wards Act and so testamentary
guardians can be removed on such grounds as mentioned in section 39, the
grounds mentioned are as follows-
1. Abuse of the trust.
2. Continuous failure to perform the duties
3. Ill-treatment or neglects to take proper care of his ward
4. Incapacity to perform the duty.
5. Continue disregard to any of the provisions of the Act
6. Conviction in case of an offence for defect of character.
7. Having an adverse interest.
8. Ceasing to reside within the local limits of the jurisdiction of the court and
9. Insolvency and Bankruptcy.
In addition to the above, the Hindu Minority and Guardianship Act,
Mentions the following grounds:
(a) If he has ceased to be a Hindu or
(b) Has completely and finally renounced the world .
