Thursday 14 December 2023

Who are Testamentary guardians and what are their powers under Hindu Minority and Guardianship Act, 1956?

 As per S 9 of the Hindu Minority and Guardianship Act, 1956, a testamentary guardian is a person appointed by a Hindu parent to act as the guardian of their minor child through their will or testament. This Act provides for the appointment and powers of such testamentary guardians. Here's an overview of the provisions related to testamentary guardians and their powers under the Hindu Minority and Guardianship Act, 1956:

  • Appointment of Testamentary Guardian (Section 9): A Hindu parent can appoint a testamentary guardian for their minor child by making a will. The appointment should be made in writing and should specify the person who is to act as the guardian of the child.

  • Conditions for Appointment: The Act allows a Hindu parent to appoint a testamentary guardian if:

    • They are of sound mind.

    • They are not minors.

    • They have not been declared unfit to be a guardian by a court of law.

    • As per S 9 Sub Section  (5) of said Act, a testamentary guardian has the right to act as the minor’s guardian and to exercise all the rights of a natural guardian provided under said Act.

    • Powers of natural guardian are provided U/S 8 of the Hindu Minority and Guardianship Act, 1956.The Hindu Minority and Guardianship Act, 1956, provides a legal framework for the appointment and powers of testamentary guardians to ensure that the welfare and interests of Hindu minors are protected. It's important to note that the Act applies to Hindus, including Sikhs, Buddhists, and Jains, but not to Muslims, Christians, or individuals of other religions. The Act is specific to the Hindu community and their family matters.

    • 8. Powers of natural guardian.(2) The natural guardian shall not, without the previous permission of the court,—

    • (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or

    • (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

    • (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

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