Indian Law: Position of De Facto Guardian

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Indian laws do not recognize a de facto guardian as the minor’s legal guardian. When a minor has no legal guardian, usually a close relative takes care of him and his property. Such a person is known as de facto guardian, who is not a lawful guardian. However, a de facto guardian shall be also the de facto manager of the minor’s property. He may apply for legal guardianship, in court under the Guardian and Wards Act.

Indian Laws: Powers of a De Facto Guardian

The current Indian law has abolished the concept of de facto guardian. However, the Privy Council has recognized certain powers of a de facto guardian. The Council has held that the de facto manager’s powers, pertaining to the alienation of the minor’s property, are at par with the natural guardian’s powers. Nonetheless, this provision is valid, only if there is existence of a necessity or benefit of estate.

In a landmark case, Sriramulu v. Pundarikakshyya, 1949 FC 219, the Court observed that under the Hindu law, in certain situations, even a legally unauthorized person, can effect the sales, mortgages and gifts of property, belonging to others. It also observed that this kind of power is not recognized under other systems of law.

Further, the court held that a de facto guardian may alienate the property of the minor, though he is not the legal guardian. A person is considered as a de facto guardian, if he is actively involved in the management of the minor’s estate. There should be a course of conduct by the de facto guardian pertaining to the minor’s property. A mere intermeddler cannot be deemed as a de facto guardian. 

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