The Act of 1890 it shall cease

The Hindu Minority and Guardianship Act of 1956 expressly provides in s. 5 that customary Hindu Law (together with its interpretation by courts) in regard to matters for which provision is made in the Act of 1956 shall cease to have effect as a result of that Act. So far as any other law is concerned (for e.g., the Act of 1890 it shall cease to have effect only in so far as it is inconsistent with the provisions contained in the Act of 1956.

The Act of 1956 does not contain any rules in regard to the duties and liabilities of guardians. So the provisions contained in regard to this subject in the Act of 1890 cannot be said to be inconsistent with the provisions of the Act of 1956.

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They would accordingly be applicable even to guardians under the Act of 1956. That is, the guardian occupies a fiduciary position and is bound, for instance, to manage the property of the minor with the same care and prudence with which he would manage his own property.

The Act of 1890 sets forth the procedure for the appointment of a guardian by the court. There are no provisions relating to this subject in the Act of 1956. So the relevant provisions of the Act of 1890 can be invoked and the procedure prescribed by them followed for obtaining an order from the court declaring a particular person to be the guardian or for removing the natural guardian from his guardianship and appointing someone else as guardian.

In particular, s. 8 of the Act of 1956 expressly provides that when an application is made by a guardian for obtaining the permission of the court to alienate the property of the minor, the corresponding provisions of the Guardians and Wards Act under s. 29 and s. 31 shall apply.

It is thus clear that the Act of 1956 does not displace the Act of 1890 in toto. In fact it proceeds on the assumption that the Act of 1890 is the principal Act relating to guardianship and that the Act of 1956 is supplemental to it.

In fact the Act of 1956 became necessary only because the earlier Act of 1890 specifically saved certain principles of Hindu law, which were being regulated by custom and by the decisions of the courts. Under the Act of 1890 the natural guardian or other person having actual custody of a minor’s property or person could apply to the court for a declaration of his guardianship or for an order appointing him as guardian under that Act.

Section 17 of that Act expressly provided that in appointing or declaring a guardian, the court should be guided by the personal law applicable to the minor, subject of course to the paramount object of securing the welfare of the minor.

So the Hindu personal law as to who can be the guardians of a minor was saved. But this law rested on custom. Now the Act of 1956 has codified this personal law. In so doing it has set at rest certain doubts, which previously existed and removed certain difficulties, which were being previously encountered. For instance, the Hindu law had recognised a guardian known as a de facto guardian.

Such a person was really an intermeddler, a stranger, friend, or relation who took charge of the minor’s interests and managed them although in law he was not the guardian. The Act of 1956 has settled that such a guardian should not be recognised at all as a guardian of property (s. 11).

The Act of 1890 could have under the general saving of personal law, previously declared such a person as a guardian of property but now it cannot do so having regard to the provisions of s. 11 of the Act of 1956. By s. 21 of the Act of 1890 it is provided that a minor husband may be appointed as, guardian of his minor wife or child and a minor Manager of a Joint Hindu family may be appointed as guardian of the wife or child of another minor member of the family. This was also a saving of the customary Hindu Law.

Section 10 of the Act of 1956 has made all minors incompetent to be guardians of the property of other minors. To this extent the customary Hindu Law has been altered. The provisions of the Act of 1890, which saved the customary Hindu Law, would to that extent be inapplicable now.

Further, the Act of 1890 was only an enabling statute. The natural guardians under the Hindu law could function ignoring that Act. Their powers were regulated by the rule in Hanuman Prasad’s case. They were limited under this rule to such alienations of the minor’s property as were either legally necessary or were for the benefit of the minor’s estate.

What was legal necessity or benefit to the estate had to be decided by the courts in the circumstances of each case long after the alienation was made, when its validity was questioned in courts. The Act of 1890 simplified the position, or by requiring the prior permission of the court for the alienation contemplated by the guardians declared or appointed by the court under that Act.

The natural guardians, however, could continue to act as before and were subject only to the rule in Hanuman Prasad’s case. The Act of 1955 has applied the simple rule of the Act of 1890 even to natural guardians and has made the prior sanction of court a sine qua non for a valid alienation by a guardian (s. 8) and has thus minimised the scope for litigation.

It would thus be seen that the Act of 1956 codifies the customary law as to guardianship with necessary reforms wherever considered necessary, but it is essentially a supplement to the Act of 1890 for the procedure as well as the substantive law in regard to the rights and duties of guardians are set forth only in the Act of 1890.