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Report No. 83

4.13. Recommendation to amend section 4(2) to add de facto guardian.-

In this position, and on a consideration of all aspects of the problem, we recommend that the law should be clarified by adding, below section 4(2) of the Act of 1890, a suitable Explanation which would make it clear that a de facto guardian is included within the definition of "guardian".

We do not propose to define a "de facto" guardian. In a Bombay case2 Crump, J. said:-

"I must admit that I am not precisely enamoured of the term 'de facto guardian' because it appears to me to be debatable in the extreme, and incapable of exact definition. I take it to mean, so far as it can be defined, a person who, being neither a legal guardian nor a guardian appointed by court, takes it upon himself to assume the management of the property of the minor as though he were a guardian. But if that be the real meaning of the term, I agree with the learned Chief Justice that it implies some continuity of conduct, some management of the property beyond the isolated act of sale which comes into question in this suit."

The same idea can be expressed more briefly by stating that a "de facto guardian" means a person who, as a matter of fact, has custody and care of the person of a minor or of his property.

1. Harilal v. Govardhan, 1927 ILA 51 Born 1040 (1047).

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

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