SOAS Research Online

Abstract

This thesis deals with the alienations of minors' properties by their guardians in South Asia and the law of limitation as it involves the setting aside improper alienations. In dealing with these two aspects of guardianship relating to property of minors a little effort is made to comment on the security of a minor's life if the guardianship of his person and of property are united in the same individual in the Subcontinent, and on the conservative attitude to deny custody of minor children to a guilty parent in Sri Lanka. For a convenient discussion of the subject the work is divided into six chapters devoting the first five to the relevant law of guardianship as it obtains in the Subcontinent and the last one to that of Sri Lanka. The first chapter deals, in brief, with the major legal systems from which the modern law of guardianship in the Subcontinent has developed. In the course of treatment it is attempted to show, along with the general discussion of the powers of guardians to deal with minors' properties, how the early British Regulations and Acts maintained the sastric and Common law principle of separating the guardianship of person and of property. Chapter 2 portrays the transformation of the powers of Hindu natural guardians from the sastric via Anglo-Hindu to the modern law. It has been shown in this connection how some of the sastric principles of Hindu law, e.g., for the payment of ancestral debts, have yielded to the influence of English equity rules. Chapter 3 is devoted to the exposition of de facto guardianship in Hindu law, the development of the powers of a de facto guardian equal to those of a natural guardian, and how it served the society well for over a century. Section 11 of the Hindu Minority and Guardianship Act, 1956, has been specially examined for its alleged abolition of de facto guardianship, and its amendment is suggested in this chapter. The principles of Mir Sarwarjan's case regarding the specific enforcement of a guardian's contract have been investigated and the powers of Hindu testamentary guardians are discussed in this chapter. Chapter 4 deals with the powers of a Muslim natural guardian in respect of minors' property; and suggestions are made in this chapter to place Muslim mothers in the position of natural guardians with full powers to deal with their minor children's properties, and to introduce the institution of de facto guardianship in Muslim law. Chapter 5 deals with the law of limitation especially with regard to setting aside an improper alienation of a Hindu de facto guardian. It has been shown how the judges were misled by the principles of Muslim cases to develop a different set of limitation rules applicable in cases of improper alienations by de facto guardians, while their general powers and the effects of their proper alienations are similar in all respects with those of natural guardians Uniformity of law in this regard is suggested. In the last chapter is discussed the law of guardianship in Sri Lanka, In the earlier part of the chapter the personal laws of different communities and the Roman-Dutch law are discussed in so far as they are concerned with the law of guardianship of person, and the growing influence of South African law has been shown. The little case-law that has developed in regard to property guardianship has been dealt with in the light of statutory law in the latter part of the chapter. The law of prescription which is applicable to an improper alienation of a minor's property is discussed in this chapter. In the conclusion I have submitted my suggestions.