Write a short note on the testamentary guardian and his powers.

Question: Write a short note on the testamentary guardian and his powers. [BJS 2000]

Find the question and answer of Muslim Law only on Legal Bites. [Write a short note on the testamentary guardian and his powers.]

Answer

Lexically, testamentary would mean 'by the will'. Hence, a testamentary guardian is a person who shall be appointed as the guardian of the minor child. This appointment is carried out by the father of the minor child. And under a circumstance where the father is not alive then the paternal grandfather shall have the authority to decide the guardian. This mode of appointment is an alternate mode of appointment for a testamentary guardian.

According to usual practice, the testamentary guardian is appointed by way of will which encloses who shall be the guardian to the minor child in case the natural guardian i.e. the father is not alive. A testamentary guardian can also be a non-muslim person or a female. However, specifically under Shia Law, a female can never be a testamentary guardian.

Testamentary Guardian of Person

The father may, it seems, entrust the custody of his minor children to the executor appointed by his will.

It has been held by the Chief Court of Sind in In re Isso, (1942) Kar. 215, that where the father at the time of his death was not entitled to the custody of the children, he was not entitled to appoint by will a guardian of the person of his children in derogation of the rights of the persons entitled to act as such guardians under the Mahomedan law. As the mother had predeceased the father, the female relations of the mother were held entitled to the guardianship of the minor daughters although the father had appointed by will a great-paternal uncle of the minor daughters as their guardian.

Testamentary Guardian of Property

Any person appointed executor by the will of the father or paternal grandfather of the minor becomes by virtue of his office legal guardian of the property of the minor. But can the father or paternal grandfather appoint one person as his executor and another person as guardian of the property of the minor was answered in affirmation in Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, A.I.R. (1983) A.P. 106., it was held in this case that even since the birth, the child was in the custody of mother. She, in her turn, entrusted the custody to her parents or, perhaps, after she was married or when she left for Saudi Arabia in 1976. It was further observed that the child is above seven years. The trial Court in the instant case has not recorded a finding that the father is not a fit person or that it is not conducive for the child to remain with the father. Therefore there is thus nothing to hold the father is not a fit person or it is not conducive to the safety and health of the child to entrust the child.

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