GUARDIANS AND WARDS
ACT, 1977
(Act No. XIX of Svt. 1977)
GUARDIANS AND WARDS ACT, 1977 489
Section
CHAPTER I
Preliminary
1. Short title, extent and commence-
ment.
2. Saving of enactments, etc.
3. Saving of jurisdiction of Courts of
Wards.
4. Definitions.
4-A. Power to confer jurisdiction on
subordinate judicial officers and
to transfer proceedings to such
officers.
CHAPTER II
Appointment and Declaration of
Guardians
5. Omitted.
6. Saving of power to appoint in
other cases.
7. Power of the Court to make orders
as to guardianship.
8. Persons entitled to apply for
order.
9. Court having jurisdiction to
entertain application.
10. Form of application.
11. Procedure on admission of
application.
THE GUARDIANS AND WARDS ACT, 1977 (1920 A.D.)
(Act No. XIX of Samvat 1977)
CONTENTS
Section.
12. Power to make interlocutory
order for production of minor
and interim protection of per-
son and property.
13. Hearing of evidence before
making of order.
14. Simultaneous proceedings in
different Courts.
15. Appointment or declaration of
several guardians.
16. Appointment or declaration of
guardian for property beyond
jurisdiction of the Court.
17. Matters to be considered by the
Court in appointing guardian.
18. Appointment or declaration of
Collector in virtue of office.
19. Guardian not to be appointed by
the Court in certain cases.
CHAPTER III
Duties, Rights and Liabilities of
Guardians.
General.
20. Fiduciary relation of guardian to
ward.
21. Capacity of minors to act as
guardians.
22. Remuneration of guardian.
490 GUARDIANS AND WARDS ACT, 1977
Section.
23. Control of Collector as guardian.
Guardian of the Person
24. Duties of guardian of the person.
25. Title of guardian to custody of
ward.
26. Removal of ward from jurisdiction.
Guardian of property.
27. Duties of guardian of property.
28. Powers of testamentary guardian.
29. Limitation of powers of guardian
of property appointed or declared
by the Court.
30. Voidability of transfers made in
contravention of section 28 or sec-
tion 29.
31. Practice with respect to permitting
transfers under section 29.
32. Variation of powers of guardian of
property appointed or declared by
the Court.
33. Right of guardian so appointed or
declared to apply to the Court for
opinion in management of prop-
erty of ward.
34. Obligations on guardian of prop-
erty appointed or declared by the
Court.
34-A. Power to award remuneration for
auditing accounts.
35. Suit against guardian where ad-
ministration-bond was taken.
Section.
36. Suit against guardian where ad-
ministration-bond was not taken.
37. General liability of guardian as
trustee.
Termination of Guardianship
38. Right of survivorship among joint
guardians.
39. Removal of guardian.
40. Discharge of guardian.
41. Cessation of authority of guardian.
42. Appointment of successor to
guardian dead, discharged or re-
moved.
CHAPTER IV
Supplemental Provisions.
43. Orders for regulating conduct or
proceedings of guardians, and
enforcement of those orders.
44. Penalty for removal of ward from
jurisdiction.
45. Penalty for contumacy.
46. Reports by Collectors and subor-
dinate Courts.
47. Orders appealable.
48. Finality of other orders.
49. Costs.
50. Power of High Court to make rules.
51. Applicability of Act to guardians
already appointed by Court.
GUARDIANS AND WARDS ACT, 1977 491
THE GUARDIAN AND WARDS ACT, 1977 (1920 A.D.)
(Act No. XIX of Samvat 1977)
[Sanctioned by His Highness the Maharaja Sahib Bahadur per Chief
Minister’s endorsement No. 8372, dated 11th September, 1920 read with
the State Council Resolution No. 1, dated 8th April, 1925. (Notification
No. 14-L/81).]
An Act to consolidate and amend the law relating to Guardian and Ward.
Whereas it is expedient to consolidate and amend the law relating to
guardian and ward; It is hereby enacted as follows:––
CHAPTER I
Preliminary
1. Short title, extent and commencement.––(1) This Act may be called
the Guardians and Wards Act, 1977.
(2) It extends to the whole of Jammu and Kashmir State. It shall come into
force on the 1st day of Baisakh, 1978.
2. Saving of enactments, etc.—All proceedings had, certificates granted,
allowances assigned, obligations imposed and applications, appointments and
orders made heretofore on matters dealt with by this Act shall, so far as may
be, be deemed to have been respectively had, granted, assigned, imposed and
made under this Act.
3. Saving of jurisdiction of Courts of Wards.—This Act shall be read
subject to every enactment heretofore or hereafter passed relating to any Court
of Wards by His Highness 1[or the Government] and nothing in this Act shall
be construed to affect, or in any way derogate from, the jurisdiction or author-
ity of any Court of Wards.
4. Definitions.—In this Act, unless there is something repugnant in the
subject or context,—
(1) “minor” means a person who, under the provisions of the Majority
Act, is to be deemed not, to have attained his majority;
1. In section 3 words in brackets added by Act X of Samvat 1996.
492 GUARDIANS AND WARDS ACT, 1977
(2) “guardian” means a person having the care of the person of a
minor or of his property, or of both his person and property ;
(3) “ward” means a minor for whose person or property, or both, there
is a guardian ;
(4) “District Court” has the meaning assigned to that expression in the
Code of Civil Procedure ;
1[(5) “the Court” means—
(a) the District Court having jurisdiction to entertain an application
under this Act for an order appointing or declaring a person to
be a guardian, or
(b) where a guardian has been appointed or declared in pursuance
of any such application:––
(i) the court which, or the Court or the officer who, appointed
or declared the guardian or is under this Act deemed to
have appointed or declared the guardian ; or
(ii) in any matter relating to the person of the ward the
District Court having jurisdiction in the place where the
ward for the time being ordinarily resides; or
(c) in respect of any proceeding transferred under section 4-A,
the Court or the officer to whom such proceeding has been
transferred] ;
(6) “Collector” means the chief officer in charge of the revenue-
administration of a district, and includes any officer whom 2[the
Government,] by notification in the Jammu and Kashmir Govern-
ment Gazette, may, by name or in virtue of his office, appoint to
be a Collector in any local area, or with respect to any class of
persons, for all or any of the purposes of this Act; and
(7) “prescribed” means prescribed by rules made by the High Court
under this Act.
3[4-A. Power to confer jurisdiction on subordinate judicial officers and to
transfer proceedings to such officers.—(1) The High Court may, by general or
special order, empower any officer exercising original civil jurisdiction subordinate
1. Clause (5) substituted by Act VII of 1989.
2. Substituted for “His Highness” by Act X of Samvat 1996.
3. Section 4-A inserted by Act VII of 1989.
GUARDIANS AND WARDS ACT, 1977 493
to a District Court, or authorise the Judge of any District Court to empower any
such officer subordinate to him, to dispose of any proceedings under this Act
transferred to such officer under the provisions of this section.
(2) The Judge of a District Court may, by order in writing, transfer at any
stage any proceeding under this Act pending in his Court for disposal to any
officer subordinate to him empowered under sub-section (1).
(3)The Judge of a District Court may, at any stage, transfer to his own
Court or to any officer subordinate to him empowered under sub-section (1)
any proceeding under this Act pending in the Court of any other such officer.
(4)Where any proceedings are transferred under this section in any case
in which a guardian has been appointed or declared, the Judge of the District
Court may, by order in writing, declare that the Court of the Judge or officer to
whom they are transferred shall, for all or any of the purposes of this Act, be
deemed to be the Court which appointed or declared the guardian.]
CHAPTER II
Appointment and Declaration of Guardians
5. Omitted.
6. Saving of power to appoint in other cases.—In the case of a minor,
nothing in this Act shall be construed to take away or derogate from any power
to appoint a guardian of his person or property, or both, which is valid by the
law to which the minor is subject.
7. Power of the Court to make order as to guardianship.—(1) Where
the Court is satisfied that it is for the welfare of a minor that an order should be
made—
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an
order accordingly.
(2) An order under this section shall imply the removal of any guardian
who has not been appointed by will or other instrument or appointed or
declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or
494 GUARDIANS AND WARDS ACT, 1977
appointed or declared by the Court, an order under this section appointing or
declaring another person to be guardian in his stead shall not be made until the
powers of the guardian appointed or declared as aforesaid have ceased under
the provisions of this Act.
8. Persons entitled to apply for order.—An order shall not be made
under the last foregoing section except on the application of—
(a) the person desirous of being, or claiming to be, the guardian of the
minor, or
(b) any relative or friend of the minor, or
(c) the Collector of the district or other local area within which the
minor ordinarily resides or in which he has property, or
(d) the Collector having authority with respect to the class to which
the minor belongs.
9. Court having jurisdiction to entertain application.—(1) If the applica-
tion is with respect to the guardianship of the person of the minor, it shall be
made to the District Court having jurisdiction in the place where the minor
ordinarily resides.
(2) If the application is with respect to the guardianship of the property
of the minor, it may be made either to the District Court having jurisdiction in
the place where the minor ordinarily resides or to a District Court having juris-
diction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a
minor is made to a District Court other than that having jurisdiction in the place
where the minor ordinarily resides, the Court may return the application if in its
opinion the application would be disposed of more justly or conveniently by
any other District Court having jurisdiction.
10. Form of application.—(1) If the application is not made by the Collec-
tor, it shall be by petition signed and verified in manner prescribed by the Code
of Civil Procedure for the signing and verification of a plaint, and stating, so
far as can be ascertained,—
(a) the name, sex, religion, date of birth and ordinary residence of the
minor ;
GUARDIANS AND WARDS ACT, 1977 495
(b) where the minor is a female, whether she is married, and, if so, the
name and age of her husband ;
(c) the nature, situation and approximate value of the property, if any,
of the minor ;
(d) the name and residence of the person having the custody or
possession of the person or property of the minor ;
(e) what near relations the minor has, and where they reside ;
(f) whether a guardian of the person or property, or both, of the
minor has been appointed by any person entitled or claiming to
be entitled by the law to which the minor is subject to make such
an appointment ;
(g) whether an application has at any time been made to the Court to
any other Court with respect to the guardianship of the person or
property, or both, of the minor and, if so, when, to what Court and
with what result ;
(h) whether the application is for the appointment or declaration of a
guardian of the person of the minor, or of his property, or both ;
(i) where the application is to appoint a guardian, the qualifications of
the proposed guardian ;
(j) where the application is to declare a person to be a guardian, the
grounds on which that person claims ;
(k) the cause which have led to the making of the application; and
(l) such other particulars, if any, as may, be prescribed or as the nature
of the application renders it necessary to state.
(2) If the application is made by the Collector, it shall be by letter
addressed to the Court and forwarded by post or in such other manner as
may be found convenient, and shall state as far as possible the particulars
mentioned in sub-section (1).
(3) The application must be accompanied by a declaration of the
willingness of the proposed guardian to act and the declaration must be
signed by him and attested by at least two witnesses.
496 GUARDIANS AND WARDS ACT, 1977
11. Procedure on admission of application.—(1) If the Court is satisfied
that there is ground for proceeding on the application, it shall fix a day for the
hearing thereof, and cause notice of the application and of the date fixed for
the hearing—
(a) to be served in the manner directed in the Code of Civil procedure
on ––
(i) the parents of the minor if they are residing in the State,
(ii) the person, if any, named in the petition or letter as having the
custody or possession of the person or property of the minor,
(iii) the person proposed in the application or letter to be appointed or
declared guardian, unless that person is himself the applicant, and
(iv) any other person to whom, in the opinion of the Court, special
notice of the application should be given ; and
(b) to be posted on some conspicuous part of the court-house, and of
the residence of the minor, and otherwise published in such man-
ner as the Court, subject to any rules made by the High Court under
this Act, thinks fit.
(2) 1[The Government] may, by general or special order, require that, when
any part of the property described in a petition under section 10, sub-section
(1) is land of which a Court of Wards could assume the superintendence, the
Court shall also cause a notice as aforesaid to be served on the Collector in
whose district the minor ordinarily resides, and on every Collector in whose
district any portion of the land is situate, and the Collector may cause the
notice to be published in any manner he deems fit.
(3) No charge shall be made by the Court or the Collector for the service
or publication of any notice served or published under sub-section (2).
12. Power to make interlocutory order for production of minor and
interim protection of person and property.—(1) The Court may direct that the
person, if any, having the custody of the minor shall produce him or cause him
to be produced at such place and time and before such persons as it appoints,
and may make such order for the temporary custody and protection of the
person or property of the minor as it thinks proper.
1. In section 11 (2), 22, 23 and 40 (2) “the Government” substituted for “His Highness” by Act
X of Samvat 1996.
GUARDIANS AND WARDS ACT, 1977 497
(2) If the minor is a female who ought not to be compelled to appear in
public, the direction under sub-section (1) for her production shall require her
to be produced in accordance with the customs and manners of the country.
(3) Nothing in this section shall authorise —
(a) the Court to place a female minor in the temporary custody of a
person claiming to be her guardian on the ground of his being her
husband, unless she is already in his custody with the consent of
her parents, if any, or
(b) any person to whom the temporary custody and protection of the
property of a minor is entrusted to disposses otherwise than by
due course of law any person in possession of any of the property.
13. Hearing of evidence before making of order.—On the day fixed for
the hearing of the application, or as soon afterwards as may be, the Court shall
hear such evidence as may be adduced in support of or in opposition to the
application.
14. Simultaneous proceedings in different Courts.—If proceedings for
the appointment or declaration of a guardian of a minor are taken in more
Courts than one, each of those Courts shall, on being apprised of the proceed-
ings in the other Court or Courts, stay the proceedings before itself, and shall
report the case to the High Court, and the High Court shall determine in which
of the Courts the proceedings with respect to the appointment or declaration
of a guardian of the minor shall be had.
15. Appointment or declaration of several guardians.—(1) If the law to
which the minor is subject admits of his having two or more joint guardians of
his person or property, or both, the Court may, if it thinks fit, appoint or declare
them.
(2) Omitted.
(3) Omitted.
(4) Separate guardians may be appointed or declared of the person and
of the property of a minor.
(5) If a minor has several properties, the Court may, if it thinks fit, appoint
or declare a separate guardian for any one or more of the properties.
498 GUARDIANS AND WARDS ACT, 1977
16. Appointment or declaration of a guardian for property beyond
Jurisdiction of the court.—If the Court appoints or declares a guardian for any
property situate beyond the local limits of its jurisdiction, the Court having
jurisdiction in the place where the property is situate shall, on production of a
certified copy of the order appointing or declaring the guardian, accept him as
duly appointed or declared and give effect to the order.
17. Matters to be considered by the Court in appointing guardian.—
(1) In appointing or declaring the guardian of a minor, the Court shall, subject
to the provisions of this section, be guided by what, consistently with the
law to which the minor is subject, appears in the circumstances to be for the
welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court
shall have regard to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to the minor, the
wishes, if any, of a deceased parent, and any existing or previous relations of
the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court
may consider that preference.
(4) Omitted.
(5) The Court shall not appoint or declare any person to be a guardian
against his will.
18. Appointment or declaration of Collector in virtue of office.—Where
a Collector is appointed or declared by the Court in virtue of his office to be
guardian of the person or property, or both, of a minor, the order appointing or
declaring him shall be deemed to authorise and require the person for the time
being holding the office to act as guardian of the minor with respect to his
person or property, or both, as the case may be.
19. Guardian not to be appointed by the Court in certain cases.—
Nothing in this Chapter shall authorise the Court to appoint or declare a guardian
of the property of a minor whose property is under the superintendence of a Court
of Wards, or to appoint and declare a guardian of the person :–––
(a) of a minor who is a married female and whose husband is not, in the
opinion of the Court, unfit to be guardian of her person, or
(b) of a minor whose father is living and is not, in the opinion of the
GUARDIANS AND WARDS ACT, 1977 499
Court, unfit to be guardian of the person of the minor, or
(c) of a minor whose property is under the superintendence of a Court
of Wards competent to appoint a guardian of the person of the
minor.
CHAPTER III
Duties, Rights and Liabilities of Guardians
General
20. Fiduciary relation of guardian to ward.—(1) A guardian stands in a
fiduciary relation to his ward, and, save as provided by the will or other instru-
ment, if any, by which he was appointed, or by this Act, he must not make any
profit out of his office.
(2) The fiduciary relation of a guardian to his ward extends to and affects
purchases by the guardian of the property of the ward, and by the ward of the
property of the guardian, immediately or soon after the ward has ceased to be
a minor, and generally all transactions between them while the influence of the
guardian still lasts or is recent.
21. Capacity of minor to act as guardians.—A minor is incompetent to
act as guardian of any minor except his own wife or child or, where he is the
managing member of an undivided Hindu family, the wife or child of another
minor member of that family.
22. Remuneration of guardian.—(1) A guardian appointed or declared by
the Court shall be entitled to such allowance, if any, as the Court thinks fit for
his care and pains in the execution of his duties.
(2) When officer of the Government as such officer, is so appointed or
declared to be a guardian, such fees shall be paid to the Government out of the
property of the ward as
1
[ the Government ] by general or special order, direct.
23. Control of Collector as guardian.—A Collector appointed or declared
by the Court to be guardian of the person or property, or both, of a minor shall,
in all matters connected with the guardianship of his ward, be subject to the
control of 1[the Government] or of such authority as 1[the Government] by noti-
fication in the Jammu and Kashmir Government Gazette, appoints in this behalf.
1. See foot-note under section 11.
500 GUARDIANS AND WARDS ACT, 1977
Guardian of the Person
24. Duties of guardian of the person.—A guardian of the person of a
ward is charged with the custody of the ward and must look to his support,
health and education, and such other matters as the law to which the ward is
subject requires.
25. Title of guardian to custody of ward.—(1) If a ward leaves or is
removed from the custody of a guardian of his person, the Court, if it is of
opinion that it will be for the welfare of the ward to return to the custody of his
guardian, may make an order for his return, and for the purpose of enforcing
the order may cause the ward to be arrested and to be delivered into the
custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the
power conferred on a Magistrate of the First Class by section 100 of the Code
of the Criminal Procedure.
(3) The residence of a ward against the will of his guardian with a person
who is not his guardian does not of itself terminate the guardianship.
26. Removal of ward from jurisdiction.—(1) A guardian of the person
appointed or declared by the Court, unless he is the Collector or is a guardian
appointed by will or other instrument, shall not, without the leave of the Court
by which he was appointed or declared, remove the ward from the limits of its
jurisdiction except for such purposes as may be prescribed.
(2) The leave granted by the Court under sub-section (1) may be special
or general, and may be defined by the order granting it.
Guardian of Property
27. Duties of guardian of property.—A guardian of the property of a
ward is bound to deal therewith as carefully as a man of ordinary prudence
would deal with it if it were his own, and, subject to the provisions of this
Chapter, he may do all acts which are reasonable and proper for the realisation,
protection or benefit of the property.
28. Powers of testamentary guardian.—Where a guardian has been
appointed by will or other instrument, his power to mortgage or charge, or trans-
fer 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
GUARDIANS AND WARDS ACT, 1977 501
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 permit-
ted by the order.
29. Limitation of powers of guardian of property appointed or declared
by the Court.—Where a person other than a Collector, or a guardian appointed
by will or other instrument, has been appointed or declared by the Court to be
guardian of the property of a ward, he shall not, without the previous permission
of the Court,—
(a) mortgage or charge, or transfer by sale, gift, exchange or other-
wise, any part of the immovable property of his ward, or
(b) lease any part of that property for a term exceeding five years or for
any term extending more than one year beyond the date on which
the ward will cease to be a minor.
30. Voidability of transfers made in contravention of section 28 or
section 29.—A disposal of immovable property by a guardian in contraven-
tion of either of the two last foregoing sections is voidable at the instance of
any other person affected thereby.
31. Practice with respect to permitting transfers under section 29.—
(1) Permission to the guardian to do any of the acts mentioned in section 29
shall not be granted by the Court except in case of necessity or for an evident
advantage to the ward.
(2) The order granting the permission shall recite the necessity or advan-
tage, as the case may be, describe the property with respect to which the act
permitted is to be done, and specify such conditions, if any, as the Court may
see fit to attach to the permission; and it shall be recorded, dated and signed
by the Judge of the Court; with his own hand, or when from any cause he is
prevented from recording the order with his own hand, shall be taken down in
writing from his dictation and be dated and signed by him.
(3) The Court may in its discretion attach to the permission the following
among other conditions, namely:––
(a) that a sale shall not be completed without the sanction of the
Court ;
(b) that a sale shall be made to the highest bidder by public auction,
before the Court or some person specially appointed by the Court
502 GUARDIANS AND WARDS ACT, 1977
for that purpose at a time and place to be specified by the Court,
after such proclamation of the intended sale as the Court, subject
to any rules made under this Act by the High Court, directs ;
(c) that a lease shall not be made in consideration of a premium or
shall be made for such term of years and subject to such rents
and covenants as the Court directs ;
(d) that the whole or any part of the proceeds of the act permitted shall
be paid into the Court by the guardian, to be disbursed therefrom
or to be invested by the Court on prescribed securities or to be
otherwise disposed of as the Court directs.
(4) Before granting permission to a guardian to do an act mentioned in
section 29, the Court may cause notice of the application for the permission to
be given to any relative or friend of the ward, who should, in its opinion,
receive notice thereof, and shall hear and record the statement of any person
who appears in opposition to the application.
32. Variation of powers of guardian of property appointed or declared
by the Court.—Where a guardian of the property of ward has been appointed
or declared by the Court and such guardian is not the Collector, the Court may,
from time to time, by order, define, restrict or extend his powers with respect to
the property of the ward in such manner and to such extent as it may consider
to be for the advantage of the ward and consistent with the law to which the
ward is subject.
33. Right of guardian so appointed or declared to apply to the Court
for opinion in management of property of ward.—(1) A guardian appointed
or declared by the Court may apply by petition to the Court which appointed
or declared him for its opinion, advice or direction on any present question
respecting the management or administration of the property of his ward.
(2) If the Court considers the question to be proper for summary disposal,
it shall cause a copy of the petition to be served on, and the hearing thereof may
be attended by, such of the persons interested in the application as the Court
thinks fit.
(3) The guardian stating in good faith the facts in the petition and acting
upon the opinion, advice or direction given by the Court shall be deemed, so
far as regard his own responsibility, to have performed his duty as guardian in
the subject-matter of the application.
GUARDIANS AND WARDS ACT, 1977 503
34. Obligations on guardian of property appointed or declared by the
Court.—(1) where a guardian of the property of a ward has been appointed or
declared by the Court and such guardian is not the Collector, he shall—
(a) if so, required by the Court, give a bond, as nearly as may be in the
prescribed form, to the Judge of the Court to ensure for the benefit
of the Judge for the time being, with or without sureties, as may be
prescribed, engaging duly to account for what he may receive in
respect of the property of the ward ;
(b) if so required by the Court, deliver to the Court, within six months
from the date of his appointment or declaration by the Court or
within such other time as the Court directs, a statement of the
immovable property belonging to the ward, of the money and other
movable property which he has received on behalf of the ward up
to the date of delivering the statement, and of the debts due on that
date to or from the ward ;
(c) if so required by the Court, exhibit his accounts in the Court at
such times and in such form as the Court from time to time directs ;
(d) if so required by the Court, pay into the Court at such time as the
Court directs the balance due from him on those accounts, or so
much thereof as the Court directs ; and
(e) apply for the maintenance, education and advancement of the ward
and of such persons as are dependent on him, and for the celebra-
tion of ceremonies to which the ward or any of those persons may
be a party, such portion of the income of the property of the ward
as the court form time to time directs, and, if the Court so directs,
the whole or any part of that property.
(2) The Court shall examine the statement filed under clause (b) and the
amount or accounts filed under clause (c) of sub-section (1), with a view to rest
their accuracy; and after such examination shall pass such orders as it thinks
fit.
1[34-A. Power to award remuneration for auditing accounts.—When
accounts are exhibited by a guardian of the property of a ward in pursuance of
a requisition made under clause (c) of section 34 or otherwise, the Court may
appoint a person to audit the accounts, and may direct that remuneration for
1. Section 34-A inserted by Act VII of 1989.
504 GUARDIANS AND WARDS ACT, 1977
the work be paid out of the income of the property.]
35. Suit against guardian where administration bond was taken.—Where
a guardian appointed or declared by the Court has given a bond duly to account
for what he may receive in respect of the property of his ward, the Court may, on
application made by petitioner and on being satisfied that the engagement of the
bond has not been kept, and upon such terms as to security, or providing that
any money received be paid into the Court, or otherwise as the Court thinks fit,
assign the bond to some proper person, who shall thereupon be entitled to sue
on the bond in his own name as if the bond had been originally given to him
instead of to the Judge of the Court and shall be entitled to recover thereon as
trustee for the ward, in respect of any breach thereof.
36. Suit against guardian where administration bond was not taken.—
(1) Where a guardian appointed or declared by the Court has not given a bond
as aforesaid, any person, with the leave of the Court, may, as next friend, at any
time during the continuance of the minority of the ward, and upon such terms
as aforesaid, institute a suit against the guardian, or, in case of his death,
against his representative, for an account of what the guardian has received in
respect of the property of the ward, and may recover in the suit, as trustee for
the ward, such amount as may be payable by the guardian or his representa-
tive, as the case may be.
(2) The provision of sub-section (1) shall, so for as they relate to a suit
against a guardian, be subject to the provision of Order XXXII, rules I and 4 of
the First Schedule to the Code of Civil Procedure as amended by this Act.
37. General liability of guardian as trustee.––Nothing in either of the
two last foregoing sections shall be construed to deprive a ward or his repre-
sentative of any remedy against his guardian, or the representative of the
guardian, which, not being expressly provided in either of those sections, any
other beneficiary or his representative would have against his trustee or the
representative of the trustee.
Termination of Guardianship
38. Right of survivorship among joint guardians.––On the death of one
or two or more joint guardians, the guardianship continues to the survivor, or
survivors until a further appointment is made by the Court.
39. Removal of guardian.––The Court may, on the application of any
person interested, or of its own motion, remove a guardian appointed or
declared by the Court, or a guardian appointed by will or other instrument,
GUARDIANS AND WARDS ACT, 1977 505
for any of the following causes, namely : —
(a) for abuse of his trust ;
(b) for continued failure to perform the duties of his trust ;
(c) for incapacity to perform the duties of his trust ;
(d) for ill- treatment, or neglect to take proper care, of his ward ;
(e) for contumacious disregard of any provision of this Act or of any
order of the Court ;
(f) for conviction of any offence implying, in the opinion of the Court,
a defect of character which unfits him to be the guardian of his
ward ;
(g) for having an interest adverse to the faithful performance of his
duties ;
(h) for ceasing to reside within the local limits of the jurisdiction of the
Court ;
(i) in the case of a guardian of the property, for bankruptcy or insol-
vency;
(j) by reason of the guardianship of the guardian ceasing, or being
liable to cease, under the law to which the minor is subject:
Provided that a guardian appointed by will or other instrument, whether
he has been declared under this Act or not, shall not be removed—
(a) for the cause mentioned in clause (g) unless the adverse interest
accrued after the death of the person who appointed him, or it is
shown that person made and maintained the appointment in igno-
rance of the existence of the adverse interest, or
(b) for the cause mentioned in clause (h) unless such guardian has
taken up such a residence as, in the opinion of the Court, renders it
impracticable for him to discharge the functions of guardian.
40. Discharge of guardian.—(1) If a guardian appointed or declared by the
Court desires to resign his office, he may apply to the Court to be discharged.
506 GUARDIANS AND WARDS ACT, 1977
(2) If the Court finds that there is sufficient reason for the application, it
shall discharge him, and if the guardian making the application is the Collector
and 1[the Government] approves of his applying to be discharged, the Court
shall in any case discharge him.
41. Cessation of authority of guardian.—(1) The powers of a guardian of
the person cease—
(a) by his death, removal or discharge ;
(b) by the Court of Wards assuming superintendence of the person of
the ward ;
(c) by the ward ceasing to be a minor ;
(d) in the case of a female ward, by her marriage to a husband who is
not unfit to be guardian of her person or, if the guardian was
appointed or declared by the Court, by her marriage to a husband
who is not, in the opinion of the Court, so unfit ; or
(e) in the case of a ward whose father was unfit to be guardian of the
person of the ward, by the father ceasing to be so or, if the father
was deemed by the Court to be so unfit, by his ceasing to be so in
the opinion of the Court.
(2) The powers of a guardian of the property cease—
(a) by his death, removal or discharge ;
(b) by the Court of Wards assuming superintendence of the property
of the ward ;
(c) by the ward ceasing to be a minor.
(3) When for any cause the powers of a guardian cease, the Court may
require him or, if he is dead, his representative to deliver as it directs any
property in his possession or control belonging to the ward or any accounts in
his possession or control relating to any past or present property of the ward.
(4) When he has delivered the property or accounts as required by the
Court, and the Court has after examination found the accounts to be correct,
1. See foot-note under section 11.
GUARDIANS AND WARDS ACT, 1977 507
the Court may declare him to be discharged from his liabilities save as regards
any fraud, which may subsequently be discovered.
42. Appointment of successor to guardian dead, discharged or re-
moved.—When a guardian appointed or declared by the Court is discharged,
or, under the law to which the ward is subject, ceases to be entitled to act, or
when any such guardian or a guardian appointed by will or other instrument is
removed or dies, the Court, of its own motion or on application under Chapter
II, may, if the ward is still a minor appoint or declare another guardian of his
person or property, or both, as the case may be.
CHAPTER IV
Supplemental Provisions
43. Orders for regulating conduct or proceedings of guardians, and
enforcement of those orders.—(1) The Court may, on the application of any
person interested or of its own motion, make an order regulating the conduct
or proceedings of any guardian appointed or declared by the Court.
(2) Where there are more guardians than one of a ward and they are
unable to agree upon a question affecting his welfare, any of them may apply
to the Court for its direction, and the Court may make such order respecting
the matter in difference as it thinks fit.
(3) Except where it appears that the object of making an order under sub-
section (1) or sub-section (2) would be defeated by the delay, the Court shall,
before making the order, direct notice of the application therefor or of the
intention of the Court to make it, as the case may be, to be given, in a case
under sub-section (1), to the guardian or, in a case under sub-section (2), to the
guardian who has not made the application.
(4) In case of disobedience to an order made under sub-section (1) or
sub-section (2), the order may be enforced in the same manner as an injunc-
tion granted under order XXXIX, rules 1 and 2 of the First Schedule to the
Code of Civil Procedure, in a case under sub-section (1), as if the ward were
the plaintiff and the guardian were the defendant or, in a case under sub-
section (2), as if the guardian who made the application were the plaintiff and
the other guardian were the defendant.
(5) Except in a case under sub-section (2), nothing in this section shall
apply to a Collector who is, as such, a guardian.
508 GUARDIANS AND WARDS ACT, 1977
44. Penalty for removal of ward from jurisdiction.—If, for the purpose
or with the effect of preventing the Court from exercising its authority with
respect to a ward, a guardian appointed or declared by the Court removes the
ward from the limits of the Jurisdiction of the Court in contravention of the
provisions of section 26, he shall be liable, by order of the Court, to fine not
exceeding one thousand rupees, or to imprisonment in the civil jail for a term
which may extend to six months.
45. Penalty for contumacy.—(1) In the following cases, namely:––
(a) If a person having the custody of a minor fails to produce him or
cause him to be produced in compliance with a direction under
section 12, sub-section (1), or to do his utmost to compel the minor
to return to the custody of his guardian in obedience to an order
under section 25, sub-section (1), or
(b) if a guardian appointed or declared by the Court fails to deliver to
the Court, within the time allowed by or under sub-section (1) (b) of
section 34, a true and accurate statement required under that clause,
or to exhibit true and accurate accounts in compliance with a requi-
sition under sub-section (1) (c) of that section, or to pay into the
Court the balance due from him on those accounts in compliance
with a requisition under sub-section (1) (d) of that section, or
(c) if a person who has ceased to be a guardian, or the representative
of such a person, fails to deliver any property or accounts in
compliance with a requisition under section 41, sub-section (3),
the person, guardian or representative, as the case may be, shall
be liable, by order of the Court, to fine not exceeding one hundred
rupees, and in case of recusancy to further fine not exceeding ten
rupees for each day after the first during which the default con-
tinues, and not exceeding five hundred rupees in the aggregate,
and to detention in civil jail until he undertakes to produce the
minor or cause him to be produced, or to compel his return, or to
deliver the statement or to exhibit the accounts, or to pay the
balance, or to deliver the proper or accounts, as the case may be.
(2) If a person who has been released from detention on giving an under-
taking under sub-section (1) fails to carry out the undertaking within the time
allowed by the Court, the Court may cause him to be arrested and re-committed
to the civil jail.
GUARDIANS AND WARDS ACT, 1977 509
46. Reports by Collectors and subordinate Courts.—(1) The Court may
call upon the Collector, or upon any Court subordinate to the Court, for a
report on any matter arising in any proceeding under this Act and treat the
report as evidence.
(2) For the purpose of preparing the report of the Collector or the Judge
of the subordinate Court, as the case may be, shall make such inquiry as he
deems necessary, and may for the purposes of the inquiry exercise any power
of compelling the attendance of a witness to give evidence or produce a
document which is conferred on a Court by the Code of Civil Procedure.
47. Order appealable.—An appeal shall lie to the High Court from an
order made by a 1[**] Court,—
(a) under section 7, appointing or declaring or refusing to appoint or
declare a guardian ; or
(b) under section 9, sub-section (3), returning an application ; or
(c) under section 25, making or refusing to make an order for the return
of a ward to the custody of his guardian ; or
(d) under section 26, refusing leave for the removal of a ward from the
limits of the jurisdiction of the Court, or imposing conditions with
respect thereto ; or
(e) under section 28 or section 29, refusing permission to a guardian to
do an act referred to in the section ; or
(f) under section 32, defining restricting or extending the powers of a
guardian ; or
(g) under section 39, removing a guardian ; or
(h) under section 40, refusing to discharge a guardian ; or
(i) under section 43, regulating the conduct or proceedings of a
guardian or setting a matter in difference between joint guardian,
or enforcing the order ; or
(j) under section 44 or section 45, imposing a penalty.
1. In section 47 word “District” omitted by Act VII of 1989.
510 GUARDIANS AND WARDS ACT, 1977
48. Finality of other orders.—Save as provided by the last foregoing
section and by section 115 of the Code of Civil Procedure, an order made
under this Act shall be final and shall not be liable to be contested by suit or
otherwise.
49. Costs.—The Costs of any proceeding under this Act, including the
costs of maintaining a guardian or other person in the civil jail, shall, subject to
any rules made by the High Court under this Act, be in the discretion of the
Court in which the proceeding is held.
50. Power of High Court to make rules.—(1) In addition to any other
power to make rules conferred expressly or impliedly by this Act, the High
Court may from time to time make rules consistent with this Act—
(a) as to the matters respecting which, and the time at which, reports
should be called for from Collectors and subordinate Court ;
(b) as to the allowances to be granted to, and the security to be
required from, guardians, and the cases in which such allowances
should be granted ;
(c) as to the procedure to be followed with respect to applications of
guardians for permission to do acts referred to in section 28 and
29 ;
(d) as to the circumstances in which such requisitions as are mentioned
in clause (a), (b), (c) and (d) of sub-section (1) of section 34 should
be made ;
(e) as to the preservation of statements and accounts delivered and
exhibited by guardian ;
(f) as to the inspection of those statements and accounts by persons
interested ;
1[(ff) as to the audit of accounts under section 34-A, the class of
persons who should be appointed to audit accounts, and the
scales of remuneration to be granted to them] ;
(g) as to the custody of money, and securities for money, belonging to
wards ;
1. Clause (ff) added by Act VII of 1989.
GUARDIANS AND WARDS ACT, 1977 511
(h) as to the securities on which money belonging to wards may be
invested ;
(i) as to the education of wards for whom guardians, not being
Collectors, have been appointed or declared by the Court ; and
(j) generally, for the guidance of the Courts in carrying out the
purposes of this Act.
(2) Rules under clause (a) and (i) of sub-section (1) shall not have effect
until they have been approved by 1[the Government,] nor shall any rule under
this section have effect until it has been published in the Jammu and Kashmir
Government Gazette.
51. Applicability of Act to guardians already appointed by Court.—A
guardian appointed by holding a certificate of administration from a Civil Court
under any enactment repealed by this Act shall, save as may be prescribed, be
subject to the provisions of this Act, and of the rules made under it, as if he
had been appointed or declared by the Court under Chapter II.
–––––––
1. Substituted by Act X of Samvat 2010 for “His Highness”.