Powers of a Testamentary Guardian under Hindu Law

In Ramanathan v. Palaniappa, AIR 1939 Mad. 531, A executed a will appointing  as executor of the will and authorising his (A’s) widow to adopt a son. Till the son became a major the executor was to manage the property which consisted of an ancestral money lending business.

The widow later on adopted a son. In the course of the business  appointed an agent for conducting the business borrowed from a Bank executing a promissory note along with C, each taking a half of the money. Ñ had to pay the whole amount to the Bank. After paying the whole amount to the Bank, Ñ sued the minor for contribution.

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The minor’s plea was that  or his agent could not borrow so as to bind his estate. It was held that  was a testamentary guardian and had also powers of a natural guardian as defined in Hanuman Prasad’s case. The appointing of an agent for a business of the kind was held to be within the powers of a natural guardian under Hindu law.

The continuing of the business was also within his powers “even apart from the directions contained in will”. The borrowing was for the benefit of the minor’s estate and so the suit for contribution was decreed.

Under s. 8 the powers of the natural guardians have been curtailed in regard to the making of alienations. In other respects their powers are still those recognised by the doctrine of “necessity or benefit” as laid down in Hanuman Prasad’s case. So testamentary guardians can exercise the powers of natural guardians (1) subject to the restrictions thereon under s. 8 and (ii) further, subject to the directions in the will itself. Such are the powers of testamentary guardians.

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