[1][THE
GUARDIANS & WARDS (KERALA) RULES, 1970 In exercise of the powers
conferred by Article 227 of the Constitution of India, Section 50 of the
Guardians and Wards Act, 1890 (Central Act 8 of 1890) and of all other powers
thereunto enabling and in supersession of the existing rules on the subject,
the High Court of Kerala, with the previous approval of the Government of
Kerala, conveyed in G.O. Rt. 1503/70/Home, dated 23-9-1970 makes the following
rules: All proceedings under the
Guardians and Wards Act, 8 of 1890, shall be entitled "In the matter
of.................. a minors", as in Form No. 1 (1)
An application by any person, other than the Collector or other
officer appointed by Government, for the appointment of a guardian, or for a
declaration that a person is the guardian of a minor, shall be by original
petition of Form No. 1. An interlocutory order for the protection of the person
and/or property of a minor may be as in Form No. 2 (2)
Particulars:- In addition to the particulars required by Section
10 of the Act, the petition shall state the personal law to which the minor is
subject, whether the minor is entitled to any separate property absolutely or
subject to the right or interests of any other person/and whether any property
is subject to any, and, if so, to what, encumbrances; and it shall specify all
persons of the same degree of relationship as or of nearer degree than the
proposed guardian, and, where a female is proposed as guardian, the nearest
male relation of the minor. Where the legal guardian of the
minor is living and is not proposed as guardian, the petition shall also state
any facts relied on as showing that he is unfit to act as guardian or that he
consents to the application. An application for permission
under Section 29 of the Act shall be by interlocutory application stating the
grounds for the application and the relief sought. When a person other than a
petitioner is proposed a guardian, the petition shall be accompanied by a
declaration of his willingness to act. Such declaration may be as in Form No.
3. Notice of the petition shall be
in form No.4 and shall be served on the persons mentioned in Rule 2 in addition
to the persons mentioned in sub-section (1) of Section 11 of the Act. The Court
may also direct the petitioner to publish the notice in the Gazette and/or in
such newspaper or newspapers as it thinks fit and shall direct such
publication in any case in which the petitioner is the collector or is not a
relation of the minor. An order appointing a guardian or declaring a person to
be a guardian of the person and/or property may be as in Form Nos. 5 and 6
respectively. (1)
Unless for reasons to be recorded in writing it otherwise orders,
the Court shall require a person appointed or declared to be guardian of the
property of the minor to give security for twice the amount or value of the
movable property and for the amount of the annual rents, profits or other
income of the movable and immovable property to be received or accounted for by
him and also to furnish the statement of the property and debts mentioned in
clause (b) of section 34 of the Act and to file and prove his accounts once in
every year. (2)
Such security shall, unless the court otherwise directs, be of one
or the other of the following: (a)
Immovable property: (b)
Cash; (c)
Government security; (d)
Fixed deposit or cash deposit in the Post Office Savings Bank; (e)
Post Office Cash Certificate; (f)
National Savings Certificate; and (g)
A fidelity bond by a Guarantee Society duly approved by the High
Court. (3)
The security bond may be as in Form Nos. 7, 8, or 9, as the case
may require. If any person is entitled to
maintenance or an allowance for marriage out of the property or to reside in
any house of the Ward, the court may fix the amount to be paid to such person
for maintenance or in respect of marriage or residence or give such directions
with respect thereto as it thinks fit. (1)
Every application under the Act subsequent to the determination of
the original petition under which a guardian of the minor was appointed or
declared by the court shall be by interlocutory application headed as in Form
No. 10. (2)
Unless to Court for reasons to be recorded in writing otherwise
orders, or unless the written consent of the parties 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 Ward as the
Court directs. The notice shall state the substance of the order prayed for, as
in Form No. 11. An application for permission to
deal with any immovable property of a ward by way of sale mortgage, lease or
otherwise shall state concisely the substance of the order prayed for as in
Form No. 10, 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 its disposal in the interests
of the ward and also by the affidavit of some person acquainted with the
circumstances of the ward showing the necessity or advantage of the said
disposal. If permission to sale is granted,
the sale shall be by public auction held in such manner and subject to such
conditions as the Court may direct or, if the Court, for reasons to be recorded
in writing, so directs, by private contract. The sale shall be subject to the
approval of the court. The order authorizing a sale may be as in Form No. 12. If a particular sale or other
disposal of any property is authorized, unless the Court for reasons to be
recorded in writing 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. The order of approval may be as in Form No. 13 If the instrument of transfer is
approved by the Court an order shall be passed sanctioning the sale and
directing in what manner the proceeds thereof are to be applied and how the
costs of the application to the Court are to be paid. The order may be as in
Form No. 14. An application for the removal or
discharge of a guardian may be made by interlocutory application, as in I, II
or III of Form No. 15 as the case may require, and, except where the ward has
attained his full age, shall also pray for the appointment of a guardian in
place of the guardian to be discharged or removed. An interim order of removal
or discharge may be as in Form No. 16. Unless the Court the reasons to
be recorded in writing, 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 which may be found to be due from him; and except where
the ward has attained his full age, notice of the application shall be given to
all parties to the original petition and to all persons interested in the
property of the ward. An order on taking accounts and the final order of
discharge may be as in Form Nos. 17 and 18 respectively. [2][On the
ward attaining majority, the Court shall issue a notice to the ward guardian to
show cause why the guardian shall not be discharged from his liabilities and
the Court may after making such enquiry as it deems fit, pass necessary orders
in the matter.] All persons to whom notice of the
original petition for the appointment or declaration of a guardian was issued
may at any time during the minority of the ward, on obtaining an order of the
Court for this purpose, inspect and take notes of the said statement and
accounts; and any person interested in the person or property of the ward 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 and
accounts. When accounts are exhibited by a
guardian, the Court shall observe the following rules as to the persons who
should be appointed to examine the accounts and the scales of remuneration to
be granted to them:- (i)
In cases where the income of the ward's property is such that it
cannot afford the appointment of an outside auditor the audit of the accounts
may be entrusted to a competent member of the staff of the court, and he may be
paid a remuneration commensurate with the income of the ward's property. (ii)
in other cases, the audit of the account shall be entrusted to a
chartered accountant or to a legal practitioner who in the opinion of the court
is qualified in examining accounts, and such person may be paid a remuneration
not exceeding 2 per cent of the net annual income of the. ward's property. (iii)
The remuneration payable under this rule shall come out of the
funds of the ward's estate. Unless the court for reasons to
be recorded in writing otherwise orders, and excepting any moneys or securities
directed by the court to be paid or retained by a guardian for a specific
purpose, all moneys and securities for money belonging to the 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 deposited into court
to the credit of the original petition under which the guardian was appointed
or declared. Unless the court for reasons to
be recorded in writing otherwise orders, moneys belonging to the ward shall not
be invested except in the purchase of lands with actual possession or in
Government securities. An allowance may be granted to a
guardian in respect of any special work or service performed by him other than
work or service in the custody or care of the person or the general control and
management of the property of the ward. This 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 in writing, no remuneration shall be
allowed to a guardian. The costs of any application with
respect to the person or property of the word 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 realized by a sale or
mortgage of any property of the ward authorized by the Court for this purpose.THE
GUARDIANS & WARDS (KERALA) RULES, 1970
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