Section 9 of the Act has introduced some important changes in the law relating to testamentary guardians of a Hindu minor. Prior to the passing of the Act, a Hindu father could nominate a guardian of his children, so as to exclude even the mother from guardianship. Even in cases where the father was dead, the mother did not have the power to appoint a testamentary guardian, i.e., a guardian appointed under a will.
Section 9 now provides that a Hindu father, who is entitled to act as the natural guardian of his minor legitimate children, may, by will, appoint a guardian for the person or property (or both) of such children. However, no such testamentary guardian can be appointed by the father of the undivided interest of the minor in joint family property.
An appointment of a testamentary guardian under the above provisions has no effect if the father dies before the mother (because, in that case, the mother automatically becomes the natural guardian under Section 6). However, such an appointment would revive if the mother dies thereafter, without appointing a guardian under her will. Thus, the Act ensures that a father cannot appoint a testamentary guardian, so as to exclude the mother from her right to act as the natural guardian of her children under Section 6.
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ADVERTISEMENTS:
Under the earlier uncodified law, the mother had no right to appoint a testamentary guardian. However, the present Section also confers the right to appoint a testamentary guardian of minor children on the mother in certain circumstances.
It provides that a Hindu widow, who is entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother who is entitled to act as the natural guardian of her minor legitimate children (by reason of the fact that the father has become disentitled to act as the natural guardian), may, by will, appoint a guardian for the person or property (or both) of such minor children but not in respect of the undivided interest of the minor in the joint family property.
Likewise, a Hindu mother who is entitled to act as the natural guardian of her minor illegitimate children, can also, by will, appoint a guardian for the person or property (or both) of such children. It will thus be seen that the father does not have the right to appoint a testamentary guardian of his illegitimate children, as the mother is the natural guardian of such children, and it is only after her death that the father can act as the natural guardian of his illegitimate children.
ADVERTISEMENTS:
It has also been expressly provided that when a testamentary guardian is appointed in the case of minor girl, the rights of such a guardian cease when the girl gets married. This is so because after her marriage, her husband would become her natural guardian.
Under the old, uncodified law, a testamentary guardian nominated by the father had very wide powers, and could deal with the minor’s property only subject to the restrictions, if any, contained in the father’s will. Thus, in the absence of any such restriction, he could mortgage, sell or otherwise dispose of the minor’s property without the sanction of the Court.
Now, under S. 9 of the Act, the powers of such a guardian are considerably curtailed, and he can exercise only the rights of a natural guardian, subject to the restriction, contained in S. 8 (above), and also subject to the restriction, if any, contained in the will appointing him as such guardian.
Thus, for instance, under the earlier law, a testamentary guardian could sell a considerable portion of the minor’s immoveable property, if circumstances warranted such a sale. Now, the guardian would (as a result of the combined effect of S. 8 and S. 9 of the Act) require the previous permission of the Court before doing so.