In exercise of the powers conferred by
Section 50 of tine Guardians and Wards Act, 1890 (Central Act VIE of 1890), and
all other powers thereunto enabling the High Court of Karnataka hereby makes
and promulgates the following rules in regard to all matters covered by the
said Act, other than those specified in clauses (a) and (i) of sub-section (1)
of Section 50 of the said Act, in supersession of all rules on the subject
continuing in force by virtue of Section 119 of the States Reorganisation Act,
1956, (Central Act XXXVII of 1956) in different areas of the State and to have
effect throughout the territories of the State. (1)
In these
rules "The Act" means the Guardians and Wards Act, 1890, (Central Act
VIII of 1890). (2)
Words and
expressions contained in these rules shall bear the same meaning respectively
assigned to them by definitions contained in the Act. These rules shall come into force on the date of their publication in
the Karnataka Gazette. - On the coming into force of these rules all existing rules governing any
matter dealt with or covered by these rules shall stand repealed: Provided that this repeal shall not affect or invalidate any action
taken under the existing rules before the commencement of these rules. All proceedings under the Act shall be " entitled in the matter of
the minor. (1)
?for appointment of guardian.- An application by any person, other than the Deputy Commissioner, for
the appointment of a guardian, or for a declaration that a person is the
guardian of a minor, shall be by original petition in Form 1. An order for the
protection of the person and property of a minor pending the appointment of a
guardian may be as in Form 6. (2)
Particulars.- The application shall in addition to the particulars required by Section
10 of the Act, state whether the minor is entitled to any property absolutely
or subject to the rights and interests of any other person and whether any
property is subject to any, and 'what, incumbrances and shall specify all
persons of the same degree of relationship or of nearer degree than, the
proposed guardian, and where a female is proposed guardian, the nearest male
relation of the minor. Where the father of the minor is living, and is not proposed as
guardian, the application shall also state any facts relied on showing that he
is unfit to act as guardian of the minor, or that he consents to the
application. Where it is proposed to deal with any property of the minor in the
manner mentioned in Section 29 of the Act, the grounds of the application and
the relief prayed for shall be stated shortly in the original petition and it
shall not be necessary to present a separate petition or application, (vide
para 10 of Form 1). The declaration of the willingness of the proposed guardian to act shall
be in Form 2 and may be written at the foot of, or annexed to, or exhibited
with the petition. Every application for guardianship should be laid at once before the
Judge for appropriate orders being passed under Section 11 of the Act regarding
issue of notice. Notice of application shall be in Form 3 and shall be served on all
persons mentioned in Rule 5(2) besides those required to be served with notice
by Section 11 of the Act. The petitioner shall within seven days from the
admission of the petition, bring into Court the stamped application for service
of the notice. The Court may also direct the petitioner to publish the notice
in such newspaper or newspapers as it thinks fit and shall direct such
publication in any case in which the petitioner is the Deputy Commissioner, or
is not a relation of the minor. An order appointing a guardian or declaring a person to be guardian of
the person may be as in Forms 4 and 5. Whenever the application made under Section 10 of the Act states that
the property of the minor consists of land or any interest in land, a copy of
the petition shall be sent free of charge to the Deputy Commissioner of the
district in which such property or any part of it is situate. In uncontested proceedings under the Act shall be competent to the Court
exercising jurisdiction therein to permit or direct, except when otherwise
provided by any law or rule for the time being in force, that any particular
fact or facts may be proved, or evidence upon any application may be given by
affidavit. Except for reasons to be recorded, the Court shall examine the
applicant and the proposed guardian, if the latter is not the applicant, as to
the age of the minor and the competency and the fitness of the proposed
guardian and as to the necessity of the proposed appointment. No ministerial officer employed in the Judicial Department shall be
appointed or declared as such officer to be guardian of the person or property
of a minor. Nor shall any such official be appointed or declared as aforesaid
in his private capacity unless he has been appointed by will or other
instrument or is by reason of relationship to the minor or other special
circumstances unconnected with his official position suited to act as guardian. (1)
Security by
guardian.- Unless the Court for reasons to be recorded otherwise orders a person
appointed, or declared to be, guardian of the property of the minor, shall give
security in the bond of himself and two or more sureties for twice the amount
or value of the moveable property and for the amount of the annual rents,
profits or other income of the moveable and immoveable property to be received
or accounted for by the guardian and the bond shall not be cancelled until
after the expiry of three years after the attainment of majority by the minor. (2)
A guardian
shall inform the Court immediately on the death of any of his sureties and
shall furnish another security within one month of the death or such further
time as the Court may grant. When security is to be given, the Court shall determine the actual
amount thereof and may examine the proposed sureties as to the property and
liabilities and for this purpose may direct notice to issue to the proposed sureties,
and adjourn the further hearing of the application to a fixed day as in Form 7. The proposed guardian and his sureties when approved by the Court, shall
execute a security bond, in Form 8, before the Judge or an officer authorised
to administer affidavits. The bond shall be filed in Court, not less than three
days before the adjourned hearing, and, if approved by the Judge, shall be
signed by him in the margin. At the adjourned hearing the Judge shall determine
the amount to be allowed for the maintenance and education of the minor and the
amount, if any, to be allowed to the guardian under Rule 33. He may also give
any special directions as to the powers to be exercised by the guardian, and
shall pass an order in Forms 9 and 10 and adjourn the application to a fixed
day for the guardian to bring in the statement and account therein mentioned. At the time of the appointment or declaration of a guardian, the Court
shall in all cases require an inventory of all the property of the minor or
minors and of all debts due from the estate to be furnished to the Court within
six months under Section 34(b) of the Act unless for reasons to be recorded it
dispenses with the same, and shall fix a date for the inventory to be brought
up for such further orders as may thereon be necessary. Such inventory shall be
in Form 18. Any appreciable increment to or diminution of the property of the ward
shall be reported immediately by the guardian to the Court and the Court shall
cause the same to be noted in the inventory produced under the preceding rule. The Court shall direct the guardian to keep such accounts as may be
deemed necessary having regard to the extent and circumstances of the estate,
unless the Court, for reasons to be recorded, dispenses with the accounts. (1)
The accounts
to be kept by the guardian shall be for the year beginning with 1st April and
ending with 31st March. (2)
True copies
of the accounts maintained by the guardian every half year shall be filed into
Court, the accounts for the half year ending 30th September before the end of
immediately succeeding October and those for half year ending 31st March before
the end of immediately succeeding April. If any account for any half year is
not filed within the time stipulated therefor by this sub-rule, the matter
shall be posted before the Court for orders. (3)
Every copy
of statement of account filed into Court shall be verified by an affidavit of
the guardian declaring the same to be true and full account of all transactions
during the period to which the account in question relates. (4)
In addition
to the filing of accounts required by sub-rule (2), the Court may call upon the
guardian to produce into Court his accounts before the date stipulated in the
said sub-rule or for shorter periods or in respect of specified transactions. All persons to whom notice of the original petition for the appointment
or declaration of guardian was issued, may, at anytime during the minority of
the minor, on obtaining an order of the Court for this purpose, inspect and
take note of the statement of accounts filed by the guardian; and any person
interested in the person or property of the minor may, at any time, apply to
the Court by interlocutory application supported by an affidavit showing the
nature of his interest and the purpose for which the same is required for leave
to inspect and take notes of the said statement of accounts. In cases where accounts are exhibited by a guardian of the property of a
ward in pursuance of a requisition made under clause (c) of Section 34 of the
Act or otherwise, the Court shall observe the following rules as to class of
persons who should be appointed to examine the accounts and the scales of
remuneration to be granted to them.- (i)
Where the
net annual income of the ward's property does not exceed rupees five thousand
the Court may appoint either (a) an Officer of the Court or (b) a chartered
accountant (c) a legal practitioner who in the opinion of the Court is
qualified to examine accounts; (ii)
Where the
net annual income exceeds rupees five thousand, the Court shall appoint a
chartered accountant; (iii)
Where the
audit is done by a chartered accountant or legal practitioner, he may be paid a
remuneration not exceeding 2 per cent of the net annual income of the ward's
property. This will be payable out of the funds of the ward's estate. The audit or examination of accounts of the guardian by the person
appointed under the last preceding rule shall be ordered by the Court at least
once every year. The report of the auditor shall be placed before the Court and
the Court after receiving such explanations as may be necessary from the
guardian shall pass such orders as appear to it to be just and necessary in the
circumstances. (1)
Every
application under the Act, subsequent to the determination of the original
petition in which a guardian of the minor was appointed or declared, by the
Court shall be, by interlocutory application as in Form 11 supported by an
affidavit setting out relevant facts. (2)
Unless the
Court, for reasons to be recorded, otherwise orders, or unless the written
consent of the parries is filed in Court, notice of the application shall be
given to every party to the original petition, and to such other persons
interested in the person or property of the minor as the Court directs. The
notice shall state the substance of the order prayed for, as in Form 12. An application for leave to deal with any immovable property of a minor
by way of sale, mortgage, lease, or otherwise, shall state concisely the
substance of the order prayed for, as in Form 11 and shall be supported by the
affidavit of some disinterested and independent person, stating what in his
opinion is the value of the property proposed to be dealt with and the best
manner of disposing of the same in the interest of the minor, and also by the
affidavit of some person acquainted with the circumstances of the minor showing
the necessity or advantage of the said disposition. (1)
If leave to
sell is granted the sale shall, unless the Court for reasons to be recorded
otherwise orders, be made by public auction with the sanction of the Court, and
an order shall be made as in Form 13. The proclamation of the sale and the
order approving the proclamation of sale may be as in Forms 14 and 15,
respectively and the sale shall be conducted in the manner prescribed by the
succeeding sub-rules. (2)
The guardian
shall bring into Court.- (i)
affidavit or
affidavits by himself or some other persons acquainted with the property,
giving, the particulars prescribed by Order XXI, Rule 66 of me Code of Civil
Procedure, 1908, (Central Act V of 1908), and also stating what, in his
opinion, is the best time and place for sale and method of advertising the
same, and the lots, if any, into which the property should be divided; (ii)
if an
Officer of the Court is not to be appointed, an affidavit as to the fitness of
the proposed auctioneer; (iii)
where the
property is situated within the limits of a municipality, an affidavit showing
the municipal tax, if any, due on the property sought to be sold, and the
affidavit shall be accompanied by a certificate from the municipality showing
the particulars of the tax due; and (iv)
a
certificate from the Registrar of Assurances (Sub-Registrar) of the District or
sub-district in which the property is situate of the result of the search made
for a period of not less than twelve years prior to the application for leave
to sell the property. (3)
The Court
shall determine the lots, if any, in which the property shall be sold; the
manner of advertising the sale; and the probable expenses thereof, and shall
fix the date and place of sale and settle the proclamation of sale as in Form
14. (4)
The Court
may, if it is made to appear that a more advantageous sale can be had thereby
or for other sufficient reason, appoint fit person other than an officer of the
Court or a pleader, to sell the property and may fix as his remuneration either
a sum certain or a percentage on the net sale proceeds. If a particular, sale or other disposition of any property is
authorised, and unless the Court for reasons to be recorded otherwise orders,
the proceeds thereof shall be paid into Court, and the instrument of transfer
shall be brought into Court for the approval of the Judge as in Form 16. If the instrument of transfer is approved by the Court, an order shall
be passed directing in what mariner the proceeds thereof are to be applied and
how the costs of the application to the Court are to be paid, as in Form 17. Unless the Court, for reasons to be recorded, otherwise orders, and
excepting any moneys or securities directed by the Court to be paid or retained
by a guardian for specific purposes, all moneys and securities for money
belonging to his ward received by, or in the possession or control of, a
guardian, shall, after deducting any costs, charges and expenses of the
guardian properly incurred, be paid into the Court to the credit of the
original petition under which the guardian was appointed or declared. Unless the Court so orders, moneys belonging to wards shall not be
invested in securities other than those specified in clauses (a), (b), (c) and
(d) of Section 20 of the Indian Trusts Act, 1882, (Central Act II of 1882). An application for the discharge or removal of a guardian shall be made
by an interlocutory application as in Form 19 and except where the minor has
attained majority, shall also pray for the appointment of a guardian in place
of the guardian to be discharged or removed. Notice of the application shall be
given to all the parties on whom notice was issued on the original petition,
and to such other persons as the Judge may think fit. An interim order of
discharge or removal may be as in Form 20. Unless the Court, for reasons to be recorded, otherwise orders, a
guardian shall not be discharged from his liabilities until he has filed and
passed his accounts, and has paid into Court any balance shown in his accounts
as due from him, and except where the minor has attained majority, notice of
the application shall be given to all parties to the original petition and to
all persons interested in the property of the minor. An order on taking
accounts and the final order of discharge may be as in Forms 21 and 22
respectively. An allowance may be granted to a guardian in respect of any special work
or service to be performed by him other than the work or service in connection
with the custody or care of the person or the general control and management of
the property of the minor, and shall not exceed in amount the remuneration
usually paid for the said work or service and except as aforesaid, or for special
reasons to be recorded, no remuneration shall be allowed to a guardian. The costs of any application with respect to the person or property of a
minor may, if the application is for his benefit, be ordered to be paid out of
the income of his property, or if that is insufficient, out of capital moneys,
or moneys realised by a sale or mortgage of any property of the minor
authorised by the Court for this purpose. Cases are not to be considered as disposed of as soon as a guardian is
appointed. They should be kept pending for the purpose of receiving the
accounts of the guardian till the minor attains majority and the guardian then
acting for him is discharged or cases to act. A register in Form 23 shall be maintained by all Courts in proceedings
under the Act and all matters in which the guardian has not been discharged on
the date of the coming into force of these rules shall be entered in it. [1] Published in the Karnataka Gazette, dated
31-3-1966, vide Notification No. R.O.C. 270/66, dated 21-1-1966[1]RULES UNDER THE GUARDIANS AND WARDS ACT, 1890
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