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Report No. 83

3.7. Scheme of the Act of 1890.-

The Act is divided into four chapters. The first chapter (sections 1 to 4A) deals with certain preliminary matters, such as title, extent and commencement, savings, definitions and power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers. Chapter 2 (sections 5 to 19) deals with the appointment and declaration of guardians. A pretty large number of questions has arisen with reference to certain provisions contained in this Chapter, particularly, sections 7, 17 and 19.

Section 5 which dealt with guardianship by will or other instrument in the case of European British subjects, has been repealed.1 The power to appoint a guardian in other cases is saved by section 6, which now applies to all persons. Section 7 is the operative provision in this Chapter, dealing as it does with the power of the Court to appoint the guardian of the person or property or both. Sections 8 to 16 mostly deal with procedural or other minor matters, but section 17 is of great importance.

It is concerned with the matters to be considered by the Court in appointing a guardian. Section 18 provides that a Collector, if appointed or declared a guardian, is so appointed by virtue of his office. Section 19 prohibits the appointment of a guardian in certain cases. Although negative in form, this Section has given rise to a number of problems in interpretation and to the question of the inter-relationship between section 17 and section 19. We shall deal with this question at the appropriate place.

1. Section 5 followed the European British Minors Act (13 of 1874).

3.8. Chapter 3 (sections 20 to 42), which is the longest Chapter in the Act, is zoncerned with the duties, rights and liabilities of guardians. The first four sections (sections 20 to 23) deal with matters of a general character, such as the fiduciary relationship of guardian to his ward, the capacity of minors to act as guardians, the remuneration of guardians, and control of the Collector when he is appointed as the guardian.

Guardianship of the person is dealt with in sections 24 to 26, of which the most important is section 25 dealing with restoration of the custody of the ward to the guardian. This is the section most frequently resorted to in practice, and as may be expected, case law on this section is prolific. Guardianship of the property is the subject matter of sections 27 to 37.

With sections 38 to 42, the Act again reverts to matters of a general character, namely, survivorship amongst joint guardians, removal of a guardian, discharge of a guardian, cessation of the authority of a guardian, and appointment of a successor to a guardian who is dead, discharged or removed.

These operative provisions of the Act are supplemented by Chapter 4 (sections 43 to 51), which are primarily concerned with matters in the nature of enforcement, appeal, costs, rules and other topics of a miscellaneous or residuary character.

3.9. Sections considered.- After these general observations, we proceed to consider the Act section by section.

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

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