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Report No. 83

8.2. Section 38.-

Section 38 deals with the right of survivorship among joint guardians. A surviving guardian is allowed to continue to function as such, till the vacancy is filled up. The rule as incorporated in the section possesses practical utility. The section may, therefore, be left undisturbed.

8.3. Section 39.-

Section 39 provides for removal of the guardian by the Court on the specified grounds. Although there is considerable case law on the section, most of the reported decisions raise questions concerned with application of the section, rather than with the principle of the provision. In this position, we have no change to recommend in the section.

8.4. Section 40.- Section 40 deals with the discharge of a guardian, and seems to need no change.

8.5. Section 41(1).- Recommendation.-

The circumstances in which the powers of are guardian ceases are dealt with in section 41. A few matters require discussion under the section.

In the first place, section 41(1) provides that the powers of a guardian of the person cease on the death, "removal" or discharge of the guardian. The expression "removal" has been construed1 as including an implied removal under section 7(2). We are of the view that in order to avoid future controversy, it is desirable to add, in section 41(1), the words "express or implied" after the word "removal". We recommend accordingly.

1. Jiban v., Sailendra, AIR 1946 Cal 272.

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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