Powers of Guardians under Act of 1890:
When a guardian is appointed under the Act of 1890 for the property of a minor, such guardian may do all acts which are reasonable and proper for the realisation, protection or benefit of the minor’s estate (s. 27). When he is in doubt as to how he should act, he can apply under s. 33 for the opinion and advice of the court.
If the matter is one that can be suitably dealt with summarily, the court will give its considered opinion after giving notice to, and hearing any other party interested in that application. When he acts upon the court’s advice, the guardian should be deemed to have performed his duty properly.
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ADVERTISEMENTS:
If the guardian appointed by the court wants to alienate the immovable property by way of mortgage, charge, sale, gift or exchange, he has to obtain the prior permission of the court for the purpose. Even when he leases the property such prior permission of court is necessary if the leases is for a term exceeding 5 years or if the term of the lease extends more than one year beyond the date on which the ward will cease to be a minor (s. 29). Any alienation in contravention of these provisions is voidable at the instance of the minor or of any other person thereby affected (s. 30).
The court of course grants permission for an alienation by the guardian only in case of necessity or of manifest benefit to the minor (s. 31). When a testamentary guardian is appointed or declared as guardian under the Act or when the Collector is functioning as guardian, the requirement as to prior sanction of court for the alienation is not insisted upon under this Act. Such are the powers of a Guardian under the Act of 1890.
Natural Guardian’s Powers Changes in, by Act of 1956:
The powers of natural guardians under the Hindu Law apart from statute are governed by the rule laid down by the Privy Council in Hanuman Prasad’s case (see Note 8.5). The Act of 1956 has assimilated the powers of the Hindu guardians even when they are not appointed as such under the Act of 1890, to the powers which they would have under the Act of 1890.
That is, the Act has reduced the powers of the guardians by requiring them to obtain the permission of the court before alienating the minor’s property. If such permission is not obtained, the transfer would be voidable at the instance of the minor.
ADVERTISEMENTS:
The minor can set aside such a transfer and he can do this even if the alienee can prove that the transaction was for the minor’s benefit or was dictated by necessity of the minor’s estate. This is the change effected by the Act of 1956.