Hindu Minority and Guardianship Act, 1956 — Natural, Testamentary, Court Guardians

The Hindu Minority and Guardianship Act, 1956 (HMG) is the personal-law statute that decides who speaks for a Hindu minor — over the minor's person, over the minor's property, and in litigation about the minor. It sits on top of the Guardians and Wards Act, 1890 (GWA), which is the secular procedural code for the appointment and supervision of guardians by the District Court. The HMG is the substantive overlay: it identifies the natural guardian, defines the limits of his powers, validates testamentary appointments, kills off the de facto guardian's power of alienation, and sets the welfare of the minor as the paramount consideration. The Act came into force on 25 August 1956 as the fourth limb of the codified Hindu personal-law package, alongside the Hindu Marriage Act 1955, the Hindu Succession Act 1956 and the Hindu Adoptions and Maintenance Act 1956.

For the judiciary aspirant, the four working sections are Section 4 (definitions), Section 6 (who is a natural guardian), Section 8 (powers of the natural guardian) and Section 13 (welfare paramount). Section 9 governs testamentary guardians; Sections 11 and 12 deal with the de facto guardian and the minor's undivided coparcenary interest. Almost every MCQ on guardianship in a state judiciary paper is testing one of those provisions.

Object and historical setting

Pre-1956, Hindu guardianship was shastric and unequal. The father was the absolute guardian of the legitimate minor. The mother was subordinate — entitled to reverence, not authority. Narada listed the father, the mother and the elder brother as guardians, in that order. Loss of caste, conversion to another religion, remarriage or even an immoral life were not enough to deprive a father of guardianship. The Privy Council and the colonial High Courts refined the position case by case, and the GWA 1890 gave it statutory shape: Section 19(b) of that Act provided that the District Court could not appoint a guardian for the person of a minor whose father was alive, unless the father was unfit. The father's testamentary power was equally wide — he could exclude the mother by appointing a stranger as guardian by will.

The HMG 1956 codified a position closer to constitutional values. It abolished the de facto guardian's power of alienation. It restricted the natural guardian's power over the minor's immovable property by requiring previous court permission. It made the welfare of the minor the controlling principle. Read alongside the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956 and the Mitakshara and Dayabhaga schools, the HMG completes the architecture of statutory Hindu family law. The reader who has worked through the sources of Hindu law will recognise the now-familiar pattern: a shastric foundation overlaid by a 1956 codifying statute that pulls the doctrine into modern shape.

A void marriage under Section 11 of the Hindu Marriage Act on void marriages may also throw up guardianship questions where the children of that marriage are not deemed legitimate, and the children of a voidable marriage follow Section 16 HMA. The HMG and the GWA are complementary, not rivals. Section 2 HMG provides that the Act is in addition to, and not in derogation of, the GWA. Section 5 HMG gives the new Act overriding effect over inconsistent prior law. Where the GWA and the HMG cover the same ground, the HMG prevails (Kusa Parida v. Baishnab, AIR 1966 Ori 60). The District Court therefore continues to appoint and supervise guardians under Sections 7, 17 and 25 GWA, but does so in the substantive frame the HMG sets.

Application — Section 3

Section 3 HMG follows the standard codified-Hindu-law application formula. The Act applies to any person who is a Hindu by religion in any of its forms or developments — including Virashaiva, Lingayat, Brahmo, Prarthana or Arya Samaj followers — to Buddhists, Jains and Sikhs, and to any other person domiciled in India who is not a Muslim, Christian, Parsi or Jew (subject to proof that he would not have been governed by Hindu law). For the operating definition of "Hindu" the reader should look across to Section 2 HMA on who is a Hindu — the test is the same across HMA, HSA, HAMA and HMG.

Section 4 — Definitions

Section 4 carries the four definitions that drive the rest of the Act:

Three drafting points matter. First, the definition of "guardian" uses "includes" — the four listed classes are not exhaustive. The Bombay High Court in Ratan v. Bisan (AIR 1978 Bom 190) held that a de facto guardian still falls within the definition for the limited purpose of identifying the person who has care of the minor; he is simply stripped of the power of alienation by Section 11. The Kerala High Court in D.N. Ram Chandra v. Annapurni Ammol (AIR 1964 Ker 269) had taken the narrower view that only the four classes qualify. The better view is that "includes" is enumerative but not exhaustive.

Second, age of majority is uniformly eighteen. The cleavage between Bengal and Madras (15 years) and the rest (16 years) under shastric law was buried by the Indian Majority Act 1875; the HMG simply restates the modern position. Third, the definition catches both the person and the property of the minor — a single guardian may have one limb of guardianship without the other (custody but not property; or property without custody).

Section 6 — Natural guardians of a Hindu minor

Section 6 is the heart of the statute. It identifies the natural guardian for three classes of Hindu minors:

Two provisos disqualify a person from acting as natural guardian: (a) ceasing to be a Hindu, and (b) renouncing the world finally and completely by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi). The Explanation expressly excludes step-parents — the stepfather is not the natural guardian of the children of his wife by an earlier marriage; the stepmother is not the natural guardian of her husband's children by an earlier marriage. The Supreme Court reiterated in Madegowda v. Ankegowda (AIR 2002 SC 215) that a sister, however adult and protective, is not the natural guardian of her minor sister.

Three further drafting choices in Section 6 deserve attention. First, the natural guardian's authority does not extend to the minor's undivided interest in joint family property — that is parked separately under Section 12 (read further below). Second, custody of a child below five "ordinarily" goes to the mother; the word "ordinarily" preserves judicial discretion to displace the rule where the mother is unfit (Chander Prabha v. Prem Nath, AIR 1969 Del 283). Third, the husband-as-guardian of a married minor girl in clause (c) is now largely a museum piece — the Prohibition of Child Marriage Act 2006 makes such marriages voidable at the option of the minor and the structural drift is towards refusing to enforce conjugal rights against an unwilling minor wife.

Disqualifications

Apart from the two provisos to Section 6, Section 10 adds a further disqualification: a minor cannot be the guardian of the property of another minor. Conversion of the minor (as opposed to conversion of the guardian) does not by itself terminate guardianship; the court will assess what advances the welfare of the minor. Remarriage of the mother is not a disqualification under the HMG; the Punjab High Court in B. Ram v. Shila Devi (AIR 1960 P&H 304) so held. Loss of caste, immoral conduct or even imprisonment of the parent is relevant only to the welfare assessment, not to the bare entitlement under Section 6.

Githa Hariharan v. Reserve Bank of India — reading down "after the father"

The most important constitutional gloss on Section 6(a) is Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149). The petitioner, a working mother, applied to the Reserve Bank of India for 9% Relief Bonds in the name of her minor son. The application form named her as guardian. The RBI refused on the textual ground that under Section 6(a) the father is the natural guardian and the mother only "after him" — it asked for either the father's signature or a guardianship certificate from a competent court.

The petitioner challenged the RBI circular and Section 6(a) itself. Read literally — "after the father" as "after the lifetime of the father" — the section would have to fall under Articles 14 and 15 for treating the mother as inferior in capacity to the father during his life. The Supreme Court rescued the section by reading down. The word "after", the Court held, does not necessarily mean "after the lifetime of"; it can mean "in the absence of" — absent for any reason whatsoever:

This is a constitutional reading: the Court harmonised Section 6(a) with Articles 14 and 15 by interpreting "after" functionally. The doctrinal upshot is that the mother is the natural guardian during the father's lifetime in any of the three situations the Court named — indifference, mutual arrangement, or incapacity. The earlier line in Jijabai v. Pathan Khan (AIR 1971 SC 315) — where a daughter under the mother's care for two decades while the father lived apart led the Court to treat the mother as natural guardian — was effectively absorbed into Githa Hariharan as a paradigm case of factual absence.

Two consequences for the exam. First, an MCQ that asks whether the mother can act as natural guardian during the father's lifetime under the HMG must be answered "yes — in the situations identified in Githa Hariharan". Second, the case is a working illustration of the rule of harmonious construction — the Court did not strike Section 6(a) down; it saved it by reading the operative word constitutionally. The landmark Hindu-law decisions assemble Githa Hariharan in its larger gender-equality lineage with Sarla Mudgal, Mary Roy and Vineeta Sharma.

Section 7 — Adopted son and the date of adoption

Section 7 provides that the natural guardian of an adopted son is the adoptive father, and after him the adoptive mother. The text speaks only of an adopted son because Section 7 was drafted before the Hindu Adoptions and Maintenance Act 1956 on capacity to adopt formalised adoption of a daughter. By force of Section 12 HAMA on the effects of adoption, the natural ties of the adopted child are severed and replaced by ties to the adoptive parents from the date of adoption — so the natural guardian of an adopted daughter is, by extension, the adoptive father, and after him the adoptive mother. The natural parents become strangers; an alienation by the natural father of property already vested in the adopted child is void (K.M. Rao v. K. Nagabhushanam, AIR 2001 AP 531).

Section 8 — Powers of the natural guardian

Section 8 is the working alienation rule. It is structured in six sub-sections and tested on every paper. Read it as a layered restriction.

Section 8(1) — the general power and the personal-covenant bar

Two ideas are concentrated here. The natural guardian can do what is necessary or reasonable and proper for the benefit of the minor or his estate — a wide power, controlled by the test of necessity or evident benefit. But the guardian cannot bind the minor by a personal covenant. He can pledge the estate; he cannot pledge the minor personally. So a guardian who executes a promissory note on behalf of the minor binds the estate, not the minor personally (Manik Chand v. Ramchandra, AIR 1981 SC 519). A guardian who executes a contract to purchase a house on behalf of the minor for the minor's benefit binds the estate — the Supreme Court in Manik Chand upheld the contract. A guardian who agrees not to sell the minor's land except to a particular person at a fixed price commits the minor to a covenant not for benefit; that is voidable at the minor's instance.

Section 8(2) — court permission for immovable property

Two transactions need previous court permission: any mortgage, charge or transfer of immovable property; and any lease for more than five years or extending more than one year beyond majority. The five-year ceiling is read with the second limb — a lease for four years that extends two years past majority is equally bad without permission.

Section 8(3) — voidability

The transaction is voidable, not void. The minor (or any person claiming under him by inheritance, transfer or devolution) may sue to set it aside, but he must set it aside; he cannot ignore it. The Full Bench of the Kerala High Court in Ramdas v. Sreedevi held that a plaintiff who sues for partition while the alienation by his guardian still stands must pray for setting it aside — the suit cannot rest on ignoring the sale. The Supreme Court has applied the same principle in Vishwambhar v. Laxminarayan: the suit must be filed within three years of the minor attaining majority under Article 60 of the Limitation Act 1963.

Sections 8(4), (5) and (6) — the procedure for permission

Section 8(4) restricts the court's power to grant permission — it can do so only in case of necessity or for an evident advantage of the minor. Section 8(5) carries the GWA 1890 procedure forward: an application for permission is governed by the GWA, the court is the District Court (or City Civil Court) within whose territorial jurisdiction the immovable property lies, and an order refusing permission is appealable. The applicant for permission is the natural guardian — not the intending purchaser. The grant of permission, once made, clothes the transaction with validity not impeachable by the minor unless vitiated by fraud or material non-disclosure. Even with permission, however, the alienation can be set aside under Section 8(3) if it is shown to be against the minor's benefit — the validity is conditional, not absolute.

The exam point: "necessity" in Section 8(4) covers items like maintenance of the minor, repair of the property, payment of debts of the estate, performance of essential ceremonies. "Evident advantage" covers the sale of an unproductive asset to acquire a productive one (Nidhi Padhan v. Dhainkra, AIR 1963 Ori 133). A bare desire of the guardian to liquidate inconvenient property — without necessity or evident advantage — will not get permission.

Coparcenary property is outside Section 8

Section 8 governs the minor's definite property. The minor's undivided interest in joint family property — fluctuating with births and deaths in the coparcenary — is outside Section 8 by force of Sections 6 and 12. The Karta deals with that interest under classical Mitakshara doctrine: legal necessity, benefit of the estate, indispensable duty. The Karta's powers in the joint Hindu family are tested by their own benchmark, not by Section 8 of the HMG. The line is clinical and frequently tested.

Section 9 — Testamentary guardians

A testamentary guardian is one appointed by the will of a parent. Section 9 provides:

The architecture is symmetrical but tilted. The father can appoint by will a guardian for his legitimate minor children; the mother can appoint for her legitimate minor children only when she is herself the natural guardian (i.e., the father is dead or disentitled), and for her illegitimate minor children always. If the father appoints by will and the mother survives him, the appointment is suspended; the mother takes over as natural guardian. The father's appointment revives only if the mother dies without making her own appointment by will. If both parents make wills, the mother's appointment prevails over the father's.

Section 9(5) sets the testamentary guardian's powers — those of a natural guardian under the Act, subject to any restriction in the will. The testamentary guardian is therefore caught by Section 8 — he cannot alienate the minor's immovable property without previous court permission, and any contrary clause in the will (purporting to authorise alienation) is inconsistent with the Act and falls before Section 5 (Duraiswamy v. E. Balasubramanian, AIR 1977 Mad 304). The testamentary guardian must accept the appointment — acceptance can be express or by acting as guardian. Once accepted, refusal is not freely permitted; he can be removed only on the GWA grounds. Testamentary guardianship of a minor unmarried girl ceases on her marriage; if she becomes a widow during minority, it does not revive.

Section 10 — Minor cannot be guardian

Section 10 prohibits a minor from acting as the guardian of the property of any minor. The bar is on guardianship of property; on the person, the GWA position is the controlling text — Section 21 GWA recognises that a minor may be guardian of the person of his own wife or child, or the wife or child of another minor in the same undivided Hindu family. The HMG and the GWA must be read together at this point.

Section 11 — De facto guardian abolished as alienor

The de facto guardian is the person who in fact has care of the minor's person or estate without legal authority — not a natural guardian, not a testamentary guardian, not a court-appointed guardian. Pre-1956, the Privy Council in Hanooman Prasad v. Mst. Babooee (1856) 6 MIA 393 had recognised the alienation by a de facto manager, provided it was for legal necessity or benefit of the estate. The HMG abolishes that alienation power:

The Federal Court in Sriramulu v. Pundarikakshayya (AIR 1949 FC 218) had already begun confining the doctrine; Section 11 finishes the job. The post-1956 result: an alienation by a de facto guardian is void, not voidable. The minor on attaining majority does not need to set aside the transaction, and cannot ratify it; the alienee is a trespasser, not entitled even to a refund of consideration under Sections 28 and 41 of the Specific Relief Act 1877. The Supreme Court in Madegowda v. Ankegowda (AIR 2002 SC 215) confirmed the rule on facts — a major sister purporting to sell the property of her minor sister as de facto guardian conveyed nothing.

The rule extends to the natural guardian acting outside her authority. Where the father is alive and not disqualified, the mother who alienates the minor's property has no authority to do so under Section 6; her sale is treated as a sale by a stranger, void as in Narain Singh v. Sampurna Kuer (AIR 1968 Pat 318), even though Section 11 strictly speaking does not apply (because she is a natural guardian, just out of turn).

Section 12 — Undivided coparcenary interest

Section 12 keeps the minor's undivided coparcenary interest outside the HMG and outside the GWA's jurisdiction — the Karta manages it. If a male adult coparcener is in management, no guardian can be appointed; the proviso preserves the inherent power of the High Court to appoint a guardian even for the undivided interest, but only High Courts which have inherent original-side jurisdiction can use that power. Where the only adult member is the mother, she manages the joint family property as the adult member of the family for the purposes of Section 12; permission of the court is not required for her to deal with that property under classical doctrine. After the 2005 amendment to Section 6 of the Hindu Succession Act on devolution of coparcenary interest made daughters coparceners by birth — discussed at length in the entry on the daughter's coparcenary right after Vineeta Sharma — the same Section 12 logic applies. A minor daughter's undivided interest is governed by joint-family doctrine and by the classical modes of partition, not by Section 8 HMG.

Section 13 — Welfare of the minor as paramount consideration

Section 13 is the controlling principle of the entire Act and the natural cross-link to the welfare-of-minor doctrine in Hindu law:

Section 13 displaces the rigour of Section 19(b) GWA — the older rule that the father, unless unfit, gets the guardianship by right. The Supreme Court in Rosy Jacob v. Jacob (AIR 1973 SC 2090) drew the modern line: a father cannot claim an indefeasible right to custody under Section 25 GWA merely because there is no defect in his personal character if the custody of the mother would equally or better promote the welfare of the minor. The phrase "welfare of the minor" covers material wellbeing, education, the emotional environment, the religion, the moral upbringing, and the wishes of an intelligent child. The controlling consideration governing the custody of children is the welfare of children and not the right of the parents. That is the operative test in every modern Indian custody decision.

Custody under Section 26 HMA — concurrent jurisdiction

Custody of children of a marriage in matrimonial proceedings is dealt with by Section 26 of the Hindu Marriage Act on custody, maintenance and education of children. The HMG, the HMA and the GWA all carry concurrent jurisdiction on custody. In a pending matrimonial petition under HMA — including one for divorce on the grounds in Section 13 or judicial separation under Section 10 — the matrimonial court can pass interim and final custody orders under Section 26 HMA; outside such proceedings, custody applications go to the District Court under Section 7 GWA. Section 13 HMG controls all of them — welfare paramount. The cross-reading should be done explicitly in any custody answer: HMG identifies the natural guardian; HMA Section 26 supplies the matrimonial-court jurisdiction; GWA supplies the procedure; Section 13 HMG and the welfare principle decide who actually gets the child.

Comparison with the GWA 1890 and the JJ Act 2015

Three statutes operate on minors and their guardians — the HMG (substantive personal law), the GWA 1890 (secular procedural code), and the Juvenile Justice (Care and Protection of Children) Act 2015 (welfare-of-the-child code for children in need of care or in conflict with law). The HMG identifies who is the natural guardian and what powers he has over property. The GWA supplies the District Court's jurisdiction to appoint, declare, supervise and remove a guardian, and the procedure to be followed. The JJ Act 2015 governs placements, adoptions through the CARA framework, foster care, sponsorship and the Child Welfare Committee structure for children in need of care and protection. The three regimes do not overlap on the alienation question; they overlap on custody and welfare. A judiciary aspirant must keep the three labels distinct: who is the guardian (HMG); what process is followed (GWA); who is in need of care (JJ Act).

Limitation — when to sue

Article 60 of the Limitation Act 1963 governs a suit by the minor (or his representative) to set aside a transfer by the guardian made without court permission — three years from the minor attaining majority. The minor cannot challenge the transaction during minority; he must wait until he attains majority. The interaction with Article 60 is exam-relevant; a minor who turns 21 without filing is too late under Article 60 — he loses the right to set aside, even if the alienation by the guardian was clearly outside Section 8(2). The right to set aside is personal but transmissible — the words "any person claiming under him" in Section 8(3) cover an heir, a transferee inter vivos, a testamentary disponee or a person to whom the right has devolved by operation of law.

Comparative threads — Muslim guardianship

The Hindu rule must be read against the Muslim-law rule for context. Under Muslim law, the father is the sole natural guardian of the person of a minor — the mother is entitled only to hizanat (custody) for the early years (boys up to 7, girls up to puberty in the Hanafi school). Guardianship of property under Muslim law is more restrictive than the HMG: a guardian must seek court permission for sale of immovable property and the test is necessity or manifest advantage — essentially the Section 8(4) HMG test. The HMG's gender-neutralising trajectory — culminating in Githa Hariharan — marks the doctrinal distance between the codified Hindu position and the uncodified Muslim position on guardianship.

MCQ angle — the testable corners

Five corners of the Act are tested almost ritually in state judiciary, CLAT PG and DJSE papers. A judiciary aspirant should be able to recite the answer in a sentence each.

1. Mother's primary guardianship of children under five. Section 6(a) proviso — "ordinarily". Custody (not guardianship simpliciter) of a child under five normally vests in the mother regardless of who is the natural guardian. The proviso bites on custody, not on Section 6(a) at large.
2. Mother's primary guardianship of an illegitimate child. Section 6(b) — the mother first, the father after her. The line in Kanwaljit v. N.K. Singh (AIR 1961 P&H 331) on void marriages reinforces this where Section 16 HMA does not deem the children legitimate.
3. Section 8 court permission for alienation. Mortgage, charge, transfer by sale, gift, exchange or otherwise of immovable property; lease beyond five years or beyond one year past majority. Without permission, the act is voidable at the instance of the minor or his representative — not void.
4. Father's testamentary appointment defeated by surviving mother. Section 9(2) — if the father appoints a guardian by will and the mother survives him, the appointment is suspended. It revives only if the mother dies without making her own appointment.
5. Section 13 welfare paramount. Welfare of the minor is the paramount consideration. Section 19(b) GWA's father-first rule is read down to that extent. Rosy Jacob and the line in Madhu Bala v. Arun Khanna (AIR 1987 Del 81) — the welfare test runs through every reported decision.

Adjacent points likely to be tested: Githa Hariharan reading down "after" (the most-tested constitutional gloss in the Hindu-law paper); the de facto guardian's alienation being void (not voidable) under Section 11; the inapplicability of Section 8 to the minor's undivided coparcenary interest under Section 12; the three-year limitation under Article 60 for setting aside an unauthorised alienation. For the wider Hindu Law and codified personal-law notes a quick traverse of maintenance of wife, children and aged parents and maintenance under Hindu law alongside stridhan and women's property rights rounds out the family-law tested universe.

Conclusion

The Hindu Minority and Guardianship Act, 1956 takes a shastric corpus and codifies it with constitutional sensibility. Section 4 names the actors. Section 6 ranks them — father then mother for legitimate children, mother then father for illegitimate children, husband for a married minor girl. Section 8 disciplines the natural guardian's power over the minor's immovable property by demanding court permission. Section 9 lets a parent choose by will, but never to evade the welfare principle. Section 11 kills the de facto guardian's power of alienation. Section 12 keeps the joint family's undivided interest within the Karta's customary management. Section 13 sets the welfare of the minor as the paramount consideration that trumps every other rule.

Read with Githa Hariharan, the Act is a working example of how a personal-law statute can be brought into line with constitutional values without statutory rewriting. Read with Rosy Jacob, Manik Chand and Madegowda, it is a tested doctrine of guardianship that a judiciary aspirant must hold in working memory — one rule per section, one case per rule.

Frequently asked questions

After Githa Hariharan, can a Hindu mother act as natural guardian during the father's lifetime?

Yes, in three situations identified by the Supreme Court in Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149). First, where the father is wholly indifferent to the minor's affairs even while living with the mother. Second, where by mutual understanding the mother is exclusively in charge. Third, where the father is physically or mentally incapable of caring for the minor. The Court read the word 'after' in Section 6(a) as 'in the absence of' rather than 'after the lifetime of' — a constitutional reading harmonising the section with Articles 14 and 15.

Is an alienation of a minor's immovable property by the natural guardian without court permission void or voidable?

Voidable at the instance of the minor or any person claiming under him, not void. Section 8(3) HMG is express. The minor must, on attaining majority, sue to set the transfer aside within three years — Article 60 of the Limitation Act 1963. He cannot ignore the sale; the Kerala Full Bench in Ramdas v. Sreedevi held that a partition suit must include a prayer to set aside the unauthorised alienation. Contrast Section 11 — alienation by a de facto guardian is void, not voidable, and cannot be ratified.

Can a Hindu father by will appoint a guardian who excludes the mother?

No. Section 9(2) HMG suspends the father's testamentary appointment if the mother survives him. The mother takes over as natural guardian under Section 6(a). The father's appointment revives only if the mother dies during the minority of the child without making her own appointment. The pre-1956 position — where a father could exclude the mother by will (Jagannatha v. Ramayamma, AIR 1921 Mad 132) — was abolished by Section 9(2). If both parents make wills, the mother's appointment prevails.

Does Section 8 court permission apply to the minor's undivided interest in joint family property?

No. Section 8 governs the minor's definite property only. The minor's undivided coparcenary interest is parked outside Section 8 by Sections 6 and 12 of the HMG. The Karta manages the joint family property under classical Mitakshara doctrine — legal necessity, benefit of estate, indispensable duty. No guardian can be appointed for the minor's undivided interest where an adult coparcener is in management. The proviso to Section 12 preserves the inherent power of the High Court to appoint such a guardian, but only High Courts with original-side jurisdiction can exercise it.

Who is the natural guardian of an illegitimate Hindu child?

The mother first, and after her, the father — Section 6(b) HMG. The order is reversed from the legitimate-child position in Section 6(a). Even where the parents' marriage is declared void (for example, for being within prohibited degrees of relationship under Section 5(iv) HMA), if Section 16 HMA does not deem the children legitimate, the mother is the natural guardian. The mother also has the testamentary power under Section 9(4) HMG to appoint a guardian by will for her illegitimate minor children — a power the putative father does not have.

What is the test the court applies before granting Section 8 permission?

Necessity or evident advantage of the minor — Section 8(4) HMG. The court will not grant permission for an alienation merely because the guardian finds it convenient. Necessity covers maintenance of the minor, repair of the property, performance of essential ceremonies, payment of debts of the estate. Evident advantage covers the sale of an unproductive asset to acquire a productive one (Nidhi Padhan v. Dhainkra, AIR 1963 Ori 133). The procedure is governed by the Guardians and Wards Act 1890 by force of Section 8(5) HMG, and only the natural guardian — not the intending purchaser — can apply.