Introduction of Section 28
Section 28 of the Guardians and Wards Act, 1890 addresses the powers of a testamentary guardian, that is, a guardian who has been appointed through a will or other legal instrument. The section specifies the conditions under which a testamentary guardian can act regarding the disposal of the minor’s immovable property. It highlights the limitations imposed by the will or instrument and the role of the court in authorizing actions that are beyond these restrictions.
Text of Section 28
Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.
Simplified Explanation:
Overview:
Section 28 provides a framework for the powers of a testamentary guardian, particularly when it comes to managing and disposing of the minor’s immovable property (such as land or buildings). While the testamentary guardian can generally manage the property, the will or instrument that appoints the guardian may impose restrictions on their ability to mortgage, sell, or transfer the property. However, if the guardian has been declared by the court to be the official guardian, they can seek court permission to bypass these restrictions and dispose of the property as deemed appropriate.
Key Points of Section 28:
- Testamentary Guardian’s Powers:
- A testamentary guardian, who is appointed by a will or other instrument, has the authority to manage the ward’s immovable property. However, this authority is subject to the terms set out in the will or instrument.
- Restrictions by the Instrument:
- The guardian’s power to manage or dispose of immovable property may be restricted by specific terms outlined in the will or legal document. These restrictions are intended to protect the minor’s interests and ensure that the property is not misused or sold without proper cause.
- Court’s Role in Lifting Restrictions:
- If a court-appointed guardian (under this Act) wishes to act beyond the restrictions imposed by the testamentary instrument, the court can, through a formal order in writing, permit the guardian to dispose of the property in a way that would otherwise be restricted. This ensures that the minor’s interests are still protected while giving the guardian flexibility in managing the property.
- Written Order Required:
- Any action that goes against the restrictions must be supported by a written order from the court, and this order will specify the property that the guardian is allowed to dispose of and the manner in which it can be done.
Purpose and Scope:
The purpose of Section 28 is to ensure that a testamentary guardian acts within the boundaries set by the testator (the person who wrote the will) and protects the minor’s assets. It also provides a mechanism through which the court can intervene if necessary to modify or bypass these restrictions in the best interest of the minor. The scope is primarily concerned with the disposal of immovable property, which requires more cautious handling than movable assets.
Practical Impact:
- Testamentary Guardian’s Authority:
- The section allows testamentary guardians to manage the minor’s property but ensures that they cannot dispose of significant assets (like land or buildings) unless the terms of the will allow it. If the guardian feels it is necessary to take such actions, they must seek court approval.
- Court’s Oversight:
- The court plays an important role in protecting the minor’s interests. Even though the guardian may have been appointed by a will, they cannot act in a manner that would harm the minor’s welfare. If the guardian wishes to take actions that are contrary to the terms of the will, they must prove to the court that it is in the best interest of the minor.
- Protection of Minor’s Property:
- The section ensures that the minor’s immovable property cannot be sold, mortgaged, or transferred by the guardian without proper justification and court oversight. This helps protect the minor from potential misuse or exploitation of their property by the guardian.
Examples:
- Example 1:
A testamentary guardian is appointed by will to manage the minor’s inherited property, which includes a large piece of land. The will restricts the guardian from selling the land. However, the guardian believes that selling the land is necessary for the ward’s education. The guardian can petition the court for permission, and if the court finds it in the best interest of the minor, it may issue an order allowing the sale of the property. - Example 2:
A guardian appointed by will is restricted from mortgaging the minor’s house, but the guardian finds that the house needs to be mortgaged in order to raise funds for urgent medical treatment. The guardian can apply to the court to bypass the restriction, and if the court is convinced that the funds will be used for the minor’s welfare, it can issue an order allowing the mortgage. - Example 3:
A will specifies that the minor’s estate cannot be sold unless the guardian is authorized by the court. The guardian believes that selling part of the estate is necessary to invest in the minor’s future. The guardian petitions the court for approval, and the court may grant permission to sell the property if it finds that doing so serves the minor’s best interest.
Conclusion:
Section 28 ensures that testamentary guardians cannot freely dispose of the minor’s immovable property unless permitted by the terms of the will or by the court. This safeguards the minor’s assets and ensures that decisions regarding property are made with careful consideration of the minor’s welfare. The section provides a balance between the guardian’s authority and the protection of the minor’s property, with court oversight playing a crucial role in ensuring that any actions taken are truly in the best interest of the ward.
