The father is the natural guardian of his minor children. By his will he can point a guardian to look after the property and person of his minor children. Such a guardian is called a testamentary guardian. Under s. 9 he cannot function if the testator is survived by his widow (i.e. mother of the children for whom the testamentary guardian is appointed).
As natural guardian the mother has a superior right to guardianship. In fact she can herself by her will appoint another testamentary guardian who will look after her children and their property during their minority on her death. But if she dies without leaving such a will, the appointment of testamentary guardian by the father revives and such testamentary guardian can function.
The powers of the testamentary guardian are defined by the will of the testator. He has the powers of a natural guardian subject to any restrictions that may have been imposed upon them by the will appointing him as’ testamentary guardian.
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In Ramanathan v. Palaniappa, AIR 1939 Mad. 531, A executed a will appointing Â 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 Â 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.
The minor’s plea was that Â or his agent could not borrow so as to bind his estate. It was held that Â 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.