Testamentary Guardianship under Hindu Law
Testamentary Guardianship under Hindu Law
Definition:
Testamentary guardianship is a type of guardianship created by the will (testament) of a deceased person. Under Hindu Law, a father or mother can appoint a guardian for their minor child by making a will. The guardian appointed through the will is called a testamentary guardian.
Key Points of Testamentary Guardianship in Hindu Law:
Appointment by Will:
Under Hindu Law, the father (and in some cases the mother) has the right to appoint a guardian for the minor child through a will.
Scope of Guardian’s Power:
The testamentary guardian is responsible for the care, custody, and maintenance of the child as well as the management of the child’s property until the child attains majority.
Priority of Appointment:
The appointment of a testamentary guardian by the father is recognized by the courts, provided it is not against the welfare of the child.
Nature of Guardianship:
Testamentary guardianship is personal and revocable by the testator during his/her lifetime. After the death of the testator, the appointment becomes effective.
Limitation:
The testamentary guardian has no authority beyond what is expressly granted by the will or Hindu Law, and cannot, for example, alienate the child’s immovable property without due authority.
Relevant Case Law under Hindu Law:
1. Harshadbhai Gordhanbhai Patel v. Kamla Ben, AIR 1965 SC 752
Facts:
A testamentary guardian was appointed by the father in his will for his minor son. After the father’s death, a dispute arose about the validity and extent of powers of the testamentary guardian.
Held:
The Supreme Court held that the father, as a natural guardian under Hindu Law, has the power to appoint a testamentary guardian. The testamentary guardian’s authority comes into effect only after the father’s death. The testamentary guardian is recognized as a guardian with respect to both the person and property of the minor, but the extent of the power depends on the terms of the will and the welfare of the child.
Significance:
This case clarified the validity of testamentary guardianship under Hindu Law and emphasized that the testamentary guardian’s powers are limited and subordinate to the best interests of the child.
2. Shobha Rani v. Madhukar Reddi, AIR 1988 SC 1490
Facts:
The question arose whether a testamentary guardian’s authority extends beyond mere custody to the management of the property of the minor.
Held:
The Supreme Court held that the testamentary guardian is entitled to the custody and management of the minor’s property. However, any alienation or dealing with immovable property requires prior sanction of the court.
Significance:
This case highlights the protective role of the court in safeguarding the minor’s property, even when a testamentary guardian is appointed.
Summary:
Under Hindu Law, a father has the right to appoint a guardian for his minor child by will (testamentary guardian).
The testamentary guardian’s authority comes into effect only after the death of the testator.
The guardian has the custody of the minor and manages the minor’s property but cannot deal with immovable property without court permission.
The appointment of a testamentary guardian is subject to the welfare of the minor.
Courts recognize the testamentary guardian’s role but ensure the protection of the minor’s interests.
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