The term de facto guardian is a misnomer for the de facto manager of a minor’s property. When a minor has no legal guardian, usually some near relation looks after his person and property. Such person may apply under the Guardian and Wards Act for appointment by the court as a guardian.
When he does not do this and simply takes possession of the minor’s property and manages it he is the de facto manager of the minor’s estate. He is sometimes referred to as de facto guardian. The Privy Council referred to such person as a de facto manager in Hanuman Persaud’s case, 6 MIA 394. The Federal Court pointed out in Sriramulu v. Pundarikakshyya, 1949 FC 218, that is his correct description and that to call him a de facto guardian is strictly speaking incorrect.
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ADVERTISEMENTS:
Mahajan, J., observes in Sriramulu v. Pundarikakshyya, 1949 FC 219 that: “Under the Hindu system even person having no lawful authority can effect sales and mortgages and gifts of property belonging to others in certain emergent situations. The kind of power wholly unknown in other systems of Jurisprudence”.
The so-called de facto guardian had thus certain powers of alienation over the minor’s property under the Hindu Law though he was not the legal guardian. To be regarded as a de facto guardian he has to be in management of the property and there should be a course of conduct in regard to that property. A mere intermeddler is not a de facto guardian.
Section 11 of the Hindu Minority and Guardianship Act, 1956, has now abolished the concept of a de facto guardian of a Hindu minor’s property.