The Position Of A De Facto Guardian Of A Hindu Minor – Explained!

Hindu Law, besides the three usual classes of guardians viz., a natural guardian a testamentary guard­ian and a guardian appointed by the Court, recognised a de facto guardian as a fourth class of guardian. He was a person, who though a stranger being interested in the minor, had taken charge of the latter’s property. He had all the powers of a natural guard­ian in the matter of alienating the minor’s property. (Hanooman Prasad v. Mst. Babooee, (1856) 6 M.I.A. 393).

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The position of a de facto guardian of a Hindu minor is mate­rially different from that of a natural guardian or a guardian appointed by the court. While the latter is clothed with the power to transfer the minor’s property subject to the limits prescribed by law and as such there is no inherent lack of authority on the part of a quatrain de facto who is none but a total outsider who had imposed himself as a guardian.

A transfer of the Hindu minor’s property by his de facto guardian being in the nature of an ultra vires act it is open to the minor when he attains majority to repudiate if it was not for his benefit or for his necessity.

He can repudiate it merely by refusing to accept the transfer and continue to enjoy and posses the property in his own rights or by claiming recovery of possession thereof if he had been dispossessed. It is not necessary to have a judicial rescission of such transfer be­cause the transfer in substance being an unauthorised person is not rendered valid except upon ratification. (Hari Satya v. Mahadev, A.I.R. 1983 Cal 76).

Section 11 of the Hindu Minority and Guardianship Act, 1956 does away with the institution of de facto guardian and his powers. The section says: “After commencement of this Act, no person shall be entitled to dispose of deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.”

Thus in view of this section no de facto guardian after the commencement of this Act shall be entitled to deal with the minor’s property. The fact that he was so far dealing with the minor’s property will be of no consequence.