HMGA recognizes these broad kinds of guardians:

1. Natural Guardian (Section 6)
   Guardian “by law” (father/mother) for a legitimate child; and mother for an illegitimate child; husband for a minor wife (as stated in the Act).
2. Testamentary Guardian (Section 9)
   Guardian appointed by a will by the natural guardian (father or mother, as permitted).
3. Guardian appointed or declared by Court (referred through Section 13; and practically appointed under the Guardians and Wards Act, 1890)
   When court appoints/declares a guardian, welfare of minor is paramount.
4. De facto guardian (Section 11)
   A person who merely takes care of the minor/property without legal authority. HMGA curtails their powers—cannot validly deal with minor’s property just because they are managing it.

Note: “Welfare of the minor” is the controlling principle for all guardianship matters (Section 13).

Natural Guardian: powers and duties (Sections 6, 8, 13) #

Who is a natural guardian? (Section 6 – core idea) #

• Legitimate boy/girl: father, and after him mother (custody of a child below 5 years ordinarily with mother).
• Illegitimate boy/girl: mother, and after her father.
• Married minor girl: husband (as per the text of HMGA).

Duties of a natural guardian #

A natural guardian must:

• Look after the minor’s person: upbringing, education, health, safety, moral welfare.
• Manage the minor’s property prudently like a careful owner/trustee.
• Act only for the minor’s welfare/benefit (Section 13).
• Keep the minor’s property distinct; avoid self-dealing; maintain reasonable accounts

Powers of a natural guardian (Section 8) #

(A) General power #

• Can do all acts necessary or reasonable and proper for the benefit of the minor or for the realisation/protection of the minor’s estate.

(B) Statutory restrictions #

Without prior permission of the court, the natural guardian cannot:

1. Mortgage / charge / transfer by sale, gift, exchange any part of the minor’s immovable property; or
2. Lease minor’s immovable property for:
   • more than 5 years, or
   • more than 1 year beyond the date on which the minor attains majority (whichever is longer hit).

(C) Effect if permission not taken #

• Such a transfer is voidable at the instance of the minor (i.e., the minor can set it aside after attaining majority), not automatically void in every case.

(D) When will court give permission? #

• Only if it is necessary or clearly advantageous to the minor (welfare test).

Testamentary Guardian: powers and duties (Section 9 + Section 8 logic) #

Meaning #

A testamentary guardian is a guardian appointed by a Hindu parent through a will, to act after the parent’s death.

Who can appoint? #

• Father can appoint for his legitimate child by will.
• Mother can also appoint by will; and in certain situations her appointment operates effectively (e.g., when she becomes entitled to act as natural guardian).

When does a testamentary guardian’s authority start? #

• Generally after the death of the person who made the will (and when the appointment becomes operative).

Powers of a testamentary guardian #

• Has powers to take care of the minor and manage the minor’s property similar to a natural guardian.
• But for dealing with minor’s immovable property, the same Section 8 restrictions apply in substance:
  • Cannot sell/mortgage/gift/exchange/charge or long-lease minor’s immovable property without court permission.

Duties of a testamentary guardian #

Same fiduciary/welfare duties:

• Act for welfare of minor (Section 13 spirit).
• Proper care, maintenance, education.
• Prudent management of property; avoid conflict of interest; keep accounts.

Conclusion #

HMGA recognizes natural, testamentary, court-appointed, and de facto guardians, but natural and testamentary guardians are tightly controlled by Section 8, and welfare of the minor (Section 13) overrides everything.