The Guardians’ and Wards’ Act, 1890
(VIII
of 1890)
[21st
March, 1890 ]
An
Act to consolidate and amend the law relating to Guardian and Ward
Preamble:---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.
Title,
extent and commencement.---(1) This Act may be called the
Guardians’ and Wards’ Act, 1890.
(2)
It extends to the whole of Pakistan
(3)
It shall come into force on the
first day of July 1890.
2.
Repealed:---[Repealed by the Repealing Act, 1938 (1 of
1938), S. 2 and Schedule.]
3.
Saving
of jurisdiction of Courts of Wards and Chartered High Courts:---This
Act shall be read subject to every enactment heretofore or hereafter passed
relating to any Court of Wards by [any competent Legislature, authority or
person] in [Pakistan], and nothing in this Act shall be construed to affect, or
in any way derogate from, the jurisdiction or authority of any Court of Wards,
or to take away any power possessed by [any High Court. * * *]
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, 1875, is to be deemed not to have attained
his majority;
(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, 1908 (Act V of
1908)] and includes a High Court in the exercise of its ordinary original civil
jurisdiction;
(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 of
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 the [Provincial Government], by notification in the official
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;
(7)
“European-British
subject” Omitted by the
Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.
(8)
“prescribed” means prescribed by
rules made by the High Court under this Act.
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 to a District Court, or authorize 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 his own Court 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)
When 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 & Declaration of
Guardians
5.
Power
of parents to appoint in case of European-British subjects.---Omitted by the Federal Laws (Revision and
Declaration) Ordinance, XXVII of 1981.
6.
Saving
of power to appoint in other cases.---In the case of a minor who is not
a European-British subject, 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 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
application 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
jurisdiction 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 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 Collector, it shall be by petition signed and verified in manner
prescribed by the [Code of Civil Procedure, 1908 (Act V of 1908)] 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;
(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 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 or 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 of both;
(i)
where the application is to appoint
a guardian, the qualification 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 causes 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, if 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.
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, 1908 (Act V of 1908)] on,---
(a)
the parents of the minor if they are
residing in [Pakistan
(b)
the person, if any, named in the
petition of letter as having the custody or possession of the person or
property of the minor,
(c)
the person proposed in the
application of letter to be appointed or declared guardian, unless that person
is himself the applicant, and
(d)
any other person in whom, in the
opinion of the Court, special notice of the application should be given; and
(b)
to be pasted on some conspicuous
part of the court-house, and of the residence of the minor, and otherwise
published in such manner as the Court, subject to any rules made by the High
Court under this Act, thinks fit.
(2)
The [Provincial 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 person 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][;
Provided that where the minor has not attained the age of
seven years in the case of male or the age of sixteen years in the case of
female, the Court shall, on the first date of hearing, pass interim order for
the custody of minor to the mother and visiting rights to the father.]
(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
authorize,---
(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 dispossess
otherwise than by due course of law any person in possession of any of the
property.
12.
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.
13.
Simultaneous
proceedings in different Courts.---(1) 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 proceedings in
the other Court or Courts, stay the proceedings before itself.
(2)
If the Courts are both or all
subordinate to the same High Court, they 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.
(3)
In any other case in which
proceedings are stayed under sub-section (1); the Courts shall report the case
to, and be guided by such orders as they may receive from their respective
Provincial Governments.
14.
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 persons or
property, or both, the Court may, if it thinks fit, appoint or declare them.
(2)
Omitted
by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.
(3)
Omitted
by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.
(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.
15.
Appointment
or declaration of 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.
16.
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 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
by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.
(5)
The Court shall not appoint or
declare any person to be a guardian against his will.
17.
Appointment
or declaration of Collector in virtue of office.---(1)
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 authorize 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.
18.
Guardian
not to be appointed by the Court in certain cases.---
Nothing in this Chapter shall authorize 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 or 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 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
19.
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
instrument, 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.
20.
Capacity
of minors 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.
21.
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 an officer of the Government,
as such officer, is so appointed or declared to be guardian, such fees shall be
paid to the Government out of the property of the ward as the [Provincial
Government], by general or special order, directs.
22.
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 the [Provincial Government] or of such authority as that
Government, by notification in the official Gazette, appoints in this behalf.
23.
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.
24.
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 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 Criminal Procedure, 1898 (Act V of 1898)].
(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.
25.
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.
26.
Duties
of guardian of property.---A guardian of the property of a
ward is bound to deal herewith 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
realization, protection, or benefit of the property.
27.
Power
of testamentary guardian.---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 depose of any immovable property specified in the order in a
manner permitted by the order.
28.
Limitation
of powers of guardian of property appointed or declared by the Court.---Where
a person other than a collector, or than 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 otherwise, 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
that date on which the ward will cease to be a minor.
29.
Viodability
of transfers made in contravention of Section 28 or section 29.---A
disposal of immovable property by a guardian in contravention of either of the
two last foregoing sections is void-able at the instance of any other person
affected thereby.
30.
Practice
with respect to permitting transfer 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 a necessity or for an evident
advantage to the ward.
(2)
The order granting the permission
shall recite the necessity or advantage, 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
is 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 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 terms 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 there-from 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.
31.
Variation
of powers of guardian of property appointed or declared by the Court.---Where
a guardian of property of a 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.
32.
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, if 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 regards his own responsibility,
to have performed his duty as guardian in the subject-matter of the
application.
33.
Obligations
on guardian of property appointed or declared by the Court.---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 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 moveable
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 celebration 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
from time to time directs, and, if the Court so directs, the whole or any part
of that property.
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 the ward be paid out of the income of the property.
34.
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 petition 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.
35.
Suits
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 found to be payable by the guardian or his
representative, as the case may be.
(2)
Omitted
by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.
36.
General
liability of guardian as trustee.---Nothing in either of the two last
foregoing sections shall be construed to deprive a ward or his representative
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.
37.
Right
of survivorship among joint guardians.---On the death of one of two or
more joint guardians, the guardianship continues to the survivor or survivors
until a further appointment is made by the Court.
38.
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, 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 an offence
implying, in the opinion of the Court, 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 insolvency;
(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, that person made and of maintained the
appointment in ignorance 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.
39.
Discharge
of guardian.---(1) A guardian appointed or
declared by the Court desires to resign his office, he may apply to the Court
to be discharged.
(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 the [Provincial
Government] approves of his applying to be discharged, the Court shall in any
case discharge him.
40.
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 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; or
(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, the Court may declare him to be
discharged from his liabilities save as regards any fraud which may
subsequently be discovered.
41.
Appointment
of successor to guardian dead, discharged or removed.---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 minor, appoint or declare another guardian of his
person or property, or both, as the case may be.
CHAPTER
IV
Supplemental Provisions
42.
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 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 therefore or of the intention of the Court to make it as the
case 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 the 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 injunction granted under [Rules 1 and 2 of Order 39 of
the First Schedule of the Code of Civil Procedure, 1908 (Act V of 1908)] 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 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.
43.
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.
44.
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
clause (b) or Section 34, a
statement required under that clause, or to exhibit accounts in compliance with
a requisition under clause (c) of that section, or to pay into the Court the
balance due from him on those accounts in compliance with a requisition under
clause (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 he first
during which the default continues, and not exceeding five hundred rupees in
the aggregate, and to detention in the civil jail until he under-takes 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 property or accounts, as the case may be.
(2)
If a person who has been released
from detention on giving an undertaking 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.
45.
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 a
matter arising in any proceeding under this Act and treat the report as
evidence.
(2)
For the purpose of preparing the
report 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 an Court by the [Code of
Civil Procedure, 1908 (Act V of 1908)].
46.
Orders
appeal-able.---An appeal shall lie to the High
Court from an order made by the 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 to 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 settling a matter in difference between
joint guardians, or enforcing the order; or
(j)
under Section 44 or Section 45,
imposing a penalty;
Provided that, where the order from which an appeal is
preferred is passed by an officer subordinate to a District Court, the appeal
shall lie to District Court.
47.
Finality
of other orders.---Save as provided by the last
foregoing section and by Section 115 of the Code of Civil Procedure, 1908 (Act
V of 1908)] an order made under this Act shall be final, and shall not be
liable to be contested by suit or otherwise.
48.
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 had.
49.
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 Courts;
(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 clauses (a), (b), (c), and (d) of Section
34 should be made;
(e)
as to the preservation of statements
and accounts delivered and exhibited by guardians;
(f)
as to the inspection of those
statements and accounts by persons interested;
(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;
(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 clauses (a) and (i) of
sub-section (1) of sub-section (1) shall not have effect until they have
been approved by the [Provincial Government], nor shall any rule under this
section have effect until it has been published in the official Gazette.
50.
Applicability
of Act to guardians already appointed by Court.---Omitted by the Federal Laws (Revision &
Declaration) Ordinance, XXVII of 1981.
51.
Amendment
of Majority Act.---[Repealed by the Repealing Act, 1938 (I of 1938), Section 2 and
Schedule.]
52.
Amendment
of Chapter XXXI of the Code of Civil Procedure.---[Repealed by the Code of Civil Procedure,
1908 (Act V of 1908), Section 156 and Schedule V.]
THE SCHEDULE.---[ENACTMENTS
REPEALED.]
Repealed by the Repealing Act, 1938,
(I of 1938), Section 2 and Schedule.
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