Guardian, Benefits, and Judicial Safeguards: Drafting Minor-Property Orders That Can Survive Appellate Scrutiny

 When a court is asked to appoint a guardian so that a relative may receive service benefits, insurance proceeds, compensation, or other monetary dues belonging to minors, the real question is rarely confined to formal entitlement. The judicial task is to determine whether the proposed arrangement actually protects the welfare, estate, and future interests of the minors in a practical and enforceable manner. Under the Guardians and Wards Act, 1890, the welfare of the minor is the paramount consideration, and that principle must control both the grant and refusal of guardianship relief.

Why these matters require judicial caution

Applications for appointment of guardian are often presented as routine requests to facilitate withdrawal of funds payable after the death of a parent or breadwinner. Yet such applications frequently involve a hidden tension between immediate access to money and long-term preservation of the minors’ estate. Section 17 of Guardian and wards Act requires the court to consider the welfare of the minor, including the character and capacity of the proposed guardian and the surrounding circumstances, rather than treating kinship alone as decisive. This broad welfare jurisdiction permits the court to look beyond the prayer clause and assess whether release of a lump sum would expose the minors to misuse, dissipation, or irreversible loss.

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COMPREHENSIVE CHECKLIST TOOLKIT FOR DISTRICT JUDGE FOR APPOINTMENT OF GUARDIAN OF MINOR FOR WITHDRAWAL OF SERVICE BENEFITS OF THEIR DECEASED FATHER

 Guardianship Appointment & Service Benefits Withdrawal

Minor Child (Deceased Father) - Grandmother Applicant

PART A: PRE-ADMISSION CHECKLIST (SECTION 11 G&W ACT)

A.1 PRELIMINARY SCRUTINY (SECTION 10 G&W ACT)

•             ☐ Petition filed in correct jurisdiction: Application is before District Court having territorial jurisdiction over minor’s ordinary residence

•             ☐ Application in prescribed format: Petition contains all particulars required under Section 10, including:

–            ☐ Full name, age, religion of minor

–            ☐ Full details of deceased father

–            ☐ Status of mother (deceased/incapacitated/unfit)

–            ☐ Description of property/service benefits involved

–            ☐ Qualifications of grandmother-applicant

–            ☐ Causes necessitating guardianship

–            ☐ Affidavit of willingness to act (Form 2)

•             ☐ Court fee properly paid: Verification of appropriate court fee as per Guardianship Rules

•             ☐ Appointment not prohibited: Grandmother is not disqualified under Section 19 (e.g., not a non-believer in religion of minor in Hindu context)

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Whether nomination made by an employee can be treated as his will and curtail the right of legal heirs to claim a share in his service benefits?

 The purpose of taking a nomination by an employer is to relieve itself of the obligation to pay the benefits, irrespective of the right of a person who is entitled in law to the Fund. Nomination, in law, cannot be construed as a “Will” of the employee and cannot be treated as a testamentary disposition of the deceased employee with an intent to bestow the benefits on the heirs. Every employee has a right in law to decide how his movable assets should be treated and disbursed in the event of his death

and nomination cannot circumscribe the legal rights of disposition of the assets. The purpose of nomination is only to benefit a custodian so as to enable him to know how and to whom he has to hand over the assets, protecting him from litigations and multiplicity of cases from different people, claiming to be successors to the interest of the employee. Thus,

the liability of the employer / custodian is discharged by disbursing the funds to the ‘nominee’ and thereafter if there is an inter-se disputes between the lawful heirs, they could resort to appropriate remedies for identification of their shares. The concept of appointing a nominee therefore is only to ensure that the amounts are disbursed at the earliest to the nominee and this becomes significant as there may be occasions where it may take time for the legal heirs to resolve their disputes and in the meantime the trustee / Custodian Company or any other Institution may go into liquidation or any other contingency may arise making it difficult to realize the retiral and other dues.

 Whenever provident fund amount is

disbursed the custodian of the fund is anxious to have a good

discharge against all claims from whomsoever claiming

through the member. The Rules nowhere provide that the

nomination is to be construed as a will by the member. If a

nomination is to be taken as a final disposition made by the

member as to how it should be taken by his heir on his death, it

would lead to anomalies, because till the member dies, the

nominee acquires no right to claim the amount. The legal right

of a member to decide from time to time as to how his assets

should be taken consequent to his death, cannot be frozen by a

nomination given, as part of his service conditions. His legal

rights about disposition of his assets cannot be circumscribed

by such nomination, 11 he is to execute a “Will” later on,

contrary to the nomination that has been made earlier, the

terms and conditions of the ‘will’ alone can prevail, and so far

as the trustees of the fund are concerned, their obligation will

be fully discharged by paying it to the nominee, who will in turn

be liable to hand over the funds to the persons entitled to as per

the ‘Will’. In case of intestate succession, the nominee is bound

to hand over the amounts to the heirs of the deceased. The main

purpose of nomination is intended to benefit

 the custodianstrustees

of the fund to know as to how or to whom they should

hand over the amounts and need not make themselves

answerable to multiplicity of claims from different persons

claiming to succeed to the interests of the deceased member. If

there is no nomination, the custodian of the fund cannot decide

as to who are the lawful heirs to succeed and they will have to

wait for a Court order to be produced, and unless finality is

reached, therein, the disbursement of the fund will be delayed

Funds, like the provident fund, in the case of State or other

public institutions, may be sufficiently safe-guarded even if

there is to be a delay in disbursement. But in cases of other

institutions, if the amounts are not immediately disbursed on

the basis of nomination, and before proceedings in Court are

over, if for any reasons, the Companies or institutions are

liquidated, the contributions made by a member of such bodies,

will not enure to the benefit of the legal heirs till finality is

reached in Court proceedings unless the amount is deposited in

Court at the earliest stage. The concept of nomination has been

thought of to achieve the disbursement of the amounts at the

earliest point of time to the nominee, who will be answerable to

claims made by those who are entitled to the amount lawfully.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 6701/2018 and C.M. Nos.25451/2018, 41307/2019 and

11129/2020

SUMAN KUMARI @ SUMAN SINGH  Vs  NAND KISHOR & ORS 

CORAM: HON'BLE MS. JUSTICE JYOTI SINGH

Pronounced on: 06.11.2020

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Whether employee will be entitled to get all service benefits if he is reinstated?

 In Narsa Goud MANU/SC/0027/2003 : (2003) 2 SCC 212 (supra), the issue for consideration was whether a workman can claim to draw increments for the period of out of employment when Labour Court only directed reinstatement with continuity of service but without back wages. Supreme Court observed as under:

"9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."

When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination. As held by Supreme Court in Deepali Gundu Surwase MANU/SC/0942/2013 : (2013) 10 SCC 324 (supra) 'reinstatement' would mean putting the workman back to the stage when he was terminated. As a consequence to setting aside the order of removal, the petitioner gets back to his position as prevailing on the date of his removal. On such reinstatement, the punishment of removal gets substituted by the punishment of withholding of three annual increments for three years with cumulative effect The annual increments due to the petitioner in the year 2000, 2001 and 2002 stands deferred in view of the Award passed by the Labour Court and after 2002, petitioner is entitled to annual increment after rendering one year satisfactory service. The action of Respondent Corporation in applying the punishment of deferment of annual increments only from the year 2003 is erroneous. It would amount to imposing punishment of withholding six annual increments of the petitioner with cumulative effect. When Labour court prescribed particular punishment to be imposed, no higher punishment can be imposed. The writ petition is disposed of directing the respondents to apply the punishment of withholding of three annual increments for three years with cumulative effect from the date when he was removed from service. Petitioner is entitled to annual increment only after rendering one year satisfactory service after he was reinstated.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Writ Petition No. 9017 of 2011

Decided On: 27.09.2016

B.S. Raju Vs.  APSRTC and Ors.

Hon'ble Judges/Coram:

P. Naveen Rao, J.

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