Who is a De Facto Guardian?
👤 Who is a De Facto Guardian?
🔹 Definition:
A De Facto Guardian is a person who takes care of a minor or their property without any legal authority, but acts like a guardian in practice (i.e., "in fact" but not "in law").
✅ "De facto" means “in fact” — someone who assumes the role of guardian without being legally appointed as one.
🔹 Examples:
An elder brother managing the estate of his younger minor siblings.
A relative caring for an orphaned child without court appointment.
A step-parent managing the child’s property informally.
⚖️ Legal Position in Hindu Law
The Hindu Minority and Guardianship Act, 1956 (HMGA) does not recognize De Facto Guardians.
Section 11 of the HMGA explicitly prohibits a De Facto Guardian from dealing with a minor’s property.
❌ Limitations of a De Facto Guardian:
| Act / Right | Permitted? |
|---|---|
| Care of the minor | ✅ Yes (factually) |
| Managing minor’s property | ❌ No legal authority |
| Selling/minor’s property | ❌ Prohibited under Section 11 of HMGA |
| Binding the minor legally | ❌ Not allowed |
| Acting in the minor’s best interest | ✅ Morally expected |
🔐 Any transaction made by a de facto guardian in regard to a minor’s property is voidable at the instance of the minor when they attain majority.
📌 Key Case Law
Hanuman Prasad v. Mst. Babooee Munraj (1856):
The Privy Council held that even though a de facto guardian has no legal title, any transactions done in bona fide interest of the minor and with necessity may be upheld under certain circumstances (especially before 1956 law came into effect).
✅ Summary Table
| Aspect | De Facto Guardian |
|---|---|
| Legal Status | Not recognized under Hindu law |
| Acts as Guardian? | Yes, in practice |
| Can manage property? | No, legally barred under HMGA |
| Can be sued? | Yes, if he misuses the minor’s property |
| Valid transactions? | Voidable; require court scrutiny |
🔍 Key Difference from De Jure Guardian:
| Feature | De Jure Guardian | De Facto Guardian |
|---|---|---|
| Appointed by Law | ✅ Yes | ❌ No |
| Legal Authority | ✅ Yes | ❌ No |
| Property Management | ✅ Permitted (with limits) | ❌ Not permitted |
| Recognized by HMGA | ✅ Yes | ❌ No |
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