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HIGH COURT RULES & ORDERS

Volume II

 

CHAPTER 2
GUARDIANS AND WARDS

 

PART A — GENERAL

 

1.         Civil Judges empowered to try cases under the Act.- Section 5 of the Punjab Family Courts Act, 1964, provides that “Family Courts” shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. Items 5 and 6 of the Schedule are “Custody of Children” and “Guardianship”. Section 25 of this very Act further provides that a Family Court shall be deemed to be a “District Court” for the purposes of the Guardians and Wards Act, 1890, as the “Court” under the Guardians and Wards Act is the “District Court”. Section 4-A(1) of the Guardians and Wards Act, 1890, confers power on the High Court to empower any officer exercising original Civil Jurisdiction subordinate to a District Court or authorize any Judge or any District Court to empower any such officer subordinate to him to dispose of any proceeding under this Act transferred to such officer under the provisions of this section. The Hon’ble Judges have decided that, with a few exceptions, all the work under the Guardians and Wards Act should be entrusted to the Family Courts presided over by Ist Class Civil Judges to be specially nominated for each district as permanent record, accounts and special registers are required to be maintained. All the Senior Civil Judges in the Punjab have been empowered to dispose of the proceedings under the Guardians and Wards Act, 1890. All the proceedings under the Guardians and Wards Act are, therefore, to be transferred or entrusted to the Senior Civil Judges for disposal.

 

2.         Minor’s interest is the main consideration in appointing a guardians.- In appointing guardians, Courts should work on the principle that the interest of the minor is the main consideration (section 7). Very often it will be found that an application for the appointment of a guardian has been made in the interest not of the minor but of the applicant, especially when the application is for the guardianship of an unmarried girl.

 

3.         Discretion of Court in appointing a guardian and issuing notices of application.- It does not follow that because an application is made for the appointment of a guardian, one must necessarily be appointed. Every application for guardianship should be laid at once before the Judge, who should only issue notice if he is satisfied after examination of the applicant (except when the applicant is the Collector) that there is ground for proceedings on the application under Section 11 of the Act, and even then, he should exercise a careful discretion as to the persons to whom notice should issue [section 11(iv)]. It should also be noted that in certain cases a guardian cannot be appointed under the Act (section 19).

In appointing a guardian the Courts shall be guided by the provisions of section 17.

 

4.         Reasons for rejecting an application in limine should be recorded.– If any application is rejected in limine the Court must give its reasons for rejection as an appeal lies under section 47 (a) of the Act.

 

5.         No need to appoint a guardian of a deceased military servant for purposes of pension.- Courts should not appoint a guardian, under the Guardians and Wards Act, merely in order to enable the heir of a man who has died in military service to draw a pension. A certificate signed by a Revenue Officer of or above the rank of a Naib-Tahsildar is accepted as sufficient authority for the payment of such pensions to de facto guardians.

 

6. Petty cases-proceedings should terminate on appointment of guardian.- By Rule 8 of the rules framed under the Guardians and Wards Act, 1890, accounts are required (vide Part B of this Chapter) from guardians only when the annual income of the estate is likely to exceed Rs. 5000/- and in other cases only if the Court thinks fit to order. Having regard to the petty sums involved in the vast majority of cases, it should be the rule and not the exception that the latter class of proceedings should terminate with the appointment of the guardian. Continuous control is desirable only in the case of large properties.

 

7.         Form of Bank account for current expenses.- Attention is drawn to rule 13 of the rules framed under the Guardians and Wards Act, 1890, –(vide Part B of this Chapter). With respect to money required for the current expenses of the estate and of the ward’s maintenance, which is not to be invested, that rule lays down no restriction as to the form of account, i.e., current account, savings account or fixed deposit account in which it may be placed. Such money should be placed in such form of Bank account as will be to the best interests of the minor.

 

8.         Restrictions regarding withdrawal from Bank account.- When permitting the opening of an account in a Bank, the Court may direct that no withdrawal should be made by the guardian from the account except under the orders of the Court. If such restrictions are imposed on the powers of a guardian, they should be embodied in the guardianship certificate; or if a separate order to this effect is recorded, an attested copy of it should be forwarded to the Bank for registration along with an attested copy of the guardianship certificate. The Court should see in particular that the amounts kept in the Bank are no larger than are sufficient for current expenses and that all surplus money is invested in accordance with rule 13 of the rules framed under the Guardians and Wards Act 1890. (vide Part B, of this Chapter).

 

9.         Cases in which money for current expenses are to be deposited in treasury.- In cases falling under Rule 14, money required for current expenses must be deposited in the treasury and the surplus money invested in Government Promissory Notes as laid down therein.

 

10.       Pass books, etc., to be kept by guardians.- All pass books, Government Promissory Notes and Post Office Saving Schemes relating to Accounts of minors should be kept by their guardians and inspected by the Court at least once a year. 

PART B — RULES

 

(Rules made by the High Court with the approval of the Provincial Government under the powers conferred by section 50, subsection (1),

clause (j), of the Guardians and Wards Act, 1890, for the guidance of Courts in carrying out the provisions of the Act.)

 

1.         Application for appointment of a guardian shall be in form A.- Application for the appointment of a guardian of the person or property, or both, of a minor under section 10 of the Act shall, subject to such variations as the circumstances of each case may require, be in Form A annexed to these rules.

 

2.         Notice required by section 11 shall be in form B.- The notice required by section 11 of the Act shall be in Form B annexed to these rules.

 

3.         Form and time for filing statement of property and debts. Further statements when to be put in.- The statement showing the property and the debts of a ward, as required by clause (b) of section 34 of the Act, shall be in Form C annexed to these rules.

Only one such statement shall ordinarily be exhibited by the guardian, on or before such date, subsequent to the assumption of guardianship, as the Court may fix, unless for any special reason, to be recorded in writing, the Court shall subsequently think it necessary to call for another statement or statements. The guardian shall, however, inform the Court of any subsequent accrual of property to the minor, e.g., by inheritance, etc., and submit any statement with respect to it that may be called for. The Court shall carefully examine the statements, submitted under this rule and pass any further orders that may appear necessary for the proper management of the property.

 

4.         Guardian Certificate-points to be noted thereon.- When a guardian is appointed under the Act, he should be furnished with a certificate of guardianship, in Form F, and his attention should be drawn in particular to the provisions of sections 26, 27, 28, 29, 32, 33, 35, 36, 39, 44 and 45 of the Act which shall be printed in full on the back of the said certificate. The certificate shall also state any special restrictions imposed by the Court on the powers of the guardian at the time of his appointment.

 

5.         Bonds required from guardian-their forms and amount.- Except in cases in which, for reasons to be recorded in writing, the Court directs otherwise, every guardian of property appointed by the Court (other than the Collector of the District) shall be required to execute a bond, with or without a surety or sureties as the Court may think fit to direct, in a sum not less than the total estimated value of the movable property and three years’ profits of the entire estate. Such bonds shall be in Form D annexed to these rules with such variations or modifications as will suit the circumstances of each case.

 

6.         Time to be fixed for filing bonds. Allowances of guardians and other orders. Orders in respect of (a) the execution, or otherwise, of such bond, and (b) the amount, if any, of the allowance to be paid to the guardian, shall be made by the Court at the time of appointing the guardian. When a bond is required the Court shall fix the time within which such bond is to be furnished and the order of appointment shall be made conditional on furnishing the bonds.

7.         Entry of application in register No. 2. Cases in which periodical accounts are to be put in to be entered in Register E.- (i)      Every application for appointment of guardian shall be entered in Civil Miscellaneous Register No. 2.

(ii)        Every case, in which a guardian of property is appointed and the guardian is directed to file accounts periodically, shall be entered in register No. XXVI (Form E) and the particulars prescribed therein shall be entered from time to time as soon as orders are passed by the Court, or the particulars are available. Cases should be entered in this register chronologically and an alphabetical index thereof given in the beginning of the register.

 

8.         Accounts should be scrutinized once a year in cases of large income.– When the annual income of the ward’s estate appears    likely     to         exceed *[Rs.5000/-], and in other cases if the Court thinks fit to so order, the guardian should be directed to submit to the court once a year and on a fixed date an account of the income and expenditure of the estate together with a list of the property, movable or immovable, sold or purchased, and of the amounts due to and from the ward. Such account shall be scrutinized by the Judge who should certify that he has done so and should record such remarks thereon as may be necessary.

 

9. Such cases to be treated as pending-minor to be produced before Court in such cases.- When a guardian is required to submit yearly accounts to the Court, the case should, until the ward concerned attains his majority, be treated as pending and the ward should be produced before the Court on the dates on which returns have to be furnished by the guardian, such dates to be reckoned as dates of hearing and entered as such in the cause book of the Court.

 

10.       Notice of application under sections 28 and 29 to be given to persons affected by it.- When an application is made by a guardian for any of the purposes referred to in sections 28 and 29 of the Act, the Court should, before disposing of it, cause notice thereof to be given to such persons, whether relatives of the ward or otherwise connected with him, as the Court may consider to be affected by the application.

 

11.       Annual Inspection of Wards by Courts.- In the absence of sufficient reason to the contrary, all male wards should be produced before the Court once a year, and the Court should, so far as is possible, examine their physical, intellectual and moral conditions, and ask them whether they have any remarks to make on the subject of the management of their estates. To facilitate this arrangement the Court should maintain a list of all such wards.

 

12.       Inspection of statements and accounts filed by the guardian.- All statements and accounts submitted by a guardian should be kept with the records of the case to which they relate ; and may, with the permission of the Court, be inspected by any person legitimately interested in the same, on payment of the ordinary inspection fee.

 

13.       Opening of accounts in approved banks in the name of minors for current expenses. Investment of surplus money in government securities. Where the Court deems it necessary to direct the guardian to open an account in a bank, the account shall be in the name of the minor through his guardian in the Post Office Savings Bank, or in the National Bank of Pakistan or in any other bank approved by the High Court. If, after payment of the current expenses of the estate and of the ward’s maintenance, there should be any balance, such balance should be invested by the guardian in #[(i) Government securities other than Post Office Savings Schemes; or (ii) Post Office Savings Schemes; or (iii) Municipal Debentures, Port Trust Bonds and Wapda Bondds; or (iv) National Savings Certificates], or in any other securities mentioned in clauses (a), (b), (c) and (d) of section 20 of the Trusts Act, 1882 (II of 1882).

Note 1:- A list of banks approved by the High Court is supplied to subordinate courts and additions and alterations made therein are communicated from time to time.

Note 2:- In order to enable a bank to open an account in the name of a minor through his guardian, an attested copy of the guardianship certificate should be supplied to it for registration.

 

14.       Investment of money in cases of estates managed by Government. Ward’s money not to be deposited in the name of Court.– [(i) In cases in which the ward’s estate is under the management of Government, in the person of the District Judge, the Collector or other Government officer, surplus moneys may be invested in Government Promissory Notes, purchased through and held in the safe custody of the National Bank of Pakistan , in accordance with the procedure laid down in paragraph 110(b) and note 1 to paragraph 101 of Chapter IX of the Government Securities Manual, 3rd edition. The income of the estate required for current expenses of the management of the estate, the maintenance, and education of the ward, should be deposited in the treasury.

(ii) The deposit of money in a private bank in the name of the District Judge or other Government officer, as a guardian of a ward’s estate, is prohibited,–(vide rule 7 et seq, section V of the Treasury Rules (Punjab).

 

15.       Court may pass orders for proper education of the ward in certain cases. When it appears to the Court, at the annual inspection of the ward or otherwise, that orders are required as to the education of the ward, the Court should pass such orders as appear to suit the case, regard being had to the present position and future prospects of the ward’s family and the intellectual capabilities of the ward himself.

 

16.       Management of Wards’ estates to be noted in annual report.- The management of ward’s estates should be specially noted in the Annual Civil Report submitted by each District Judge and detailed mention should be made of the main facts relating to the more important estates.

 

 

FORM A.

[In the court of………………………]

[Court fee]

In matter of guardianship of ………………son of…………….caste……………resident of Minor

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 nature and age of her husband.

 

C

The nature, situation, and approximate value of the property, if any, or the minor (For details see schedule on reverse).

 

D

The name and residence of the person having the custody or possession of the person or property of the minor.

 

E

What near relation the minor has, and where they reside.

 

F

Whether a guardian of he person or property, or both, of the minor has been appointed by any person entitled, or claiming to be entitle 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 both,

 

I

Where the application is to declare a person to be a guardian, the qualifications 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

 

L

Such other particulars if any, as may be presented, or as the mature of the application renders it necessary to state.

 

 

Signatures of petitioner or of a person duly authorised by him in this behalf.

The above particulars are true to the knowledge of the person making them except as to matters stated on information and belief, and as to those matters he believes them to be true.

I, the guardian proposed in the above application, do hereby declare that I am willing to act as such.

Attested by   (1)                                    Signature of the person verifying

(2)                                               Signature of the proposed guardian.


 

SCHEDULE TO FORM A.

 

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