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Natural guardians are not required to furnish security under rule 422 of the Bombay High Court (OS) Rules: Bombay High Court

The father and mother are natural guardians and in the matter of interpretation of a statute, the mother’s right to act as the natural guardian does not stand obliterated. Thus, no question arises of having to furnish surety or of justifying surety for the share of a birth minor since she is already charged in law with the guardianship of the property of the minor and is bound to safeguard it. This remarkable judgment was recently passed by Bombay High Court in the matter of MADHURI DATTPRASAD PITRE V GOVIND JANARDAN PITRE [T.P. No. 1701/ 2017] by Honourable Justice G.S. Patel.

This is a testamentary petition and the Bench is discussing an issue pertaining to an estate in which a minor has an interest and like other recent applications, the applicant is the mother and natural guardian of the minor. The registry has taken an objection demanding that the mother must justify the surety for the entirety of the minor’s share in the estate. The objection, in this case, is based on Rule 422 of the Bombay High Court (Original Side) Rules.

In this petition, the court deliberated upon Rule 422 and tried to correctly interpret it so that an objection with the Registry is not raised again and again. The facts of the case are, Madhuri seeks a Succession Certificate in respect of her father-in-law Govind who has two sons, Dattprasad and Mahesh and Dattprasad was Madhuri’s husband. Soham is their son and Dattaprasad died in 2013 and Mahesh, died in 2012. Madhuri as the only surviving member of the family along with her minor son, Soham Dattprasad Pitre and bought this petition when he was 14 years old.

Court noted that “Rule 422 itself provides that surety may be dispensed by the Court in a proper case and for reasons recorded in writing. But Rule 422(a)(ii) is often completely misread, misinterpreted, and misunderstood. Letters of Administration or Succession Certificate is exempted if the applicant is a guardian of the property of minor appointed by the Court.”

Thus, the Court asserted that in the application the Rule 422(a)(ii) has no application to a birth parent who is the natural guardian of a minor since when an application for Letters of Administration or Succession Certificate is made by a parent no question of having to furnish surety arises neither does that person has to justify this surety for the share of a birth minor in an estate. The parent-applicant is already charged in law with the guardianship of the property of the minor and is bound to safeguard it.

The Court observed that “Appointed by the Court” qualifies to “guardian” not “property”. This is, therefore, clearly a reference to someone other than the surviving birth parent and natural guardian. No mother or father needs to be ‘appointed’ a guardian of the property of the minor by an order of the Court. That parent is the natural guardian at law of the property of the minor. There are situations where persons other than parents may need to be appointed as guardians of the property of the minor. That requires an order of the Court. If neither of the parents and natural guardians is alive, then, possibly, a minor’s uncle, aunt, adult sibling, or grandparent may need to be appointed as the natural guardian of the property of the minor. This is also true if the person is a step-parent. Such an appointment will be done by an order of the Court on an application for that purpose.”

Thus, the Court stated that the requisition for justifying surety is without foundation in law or the rules and hence this petition is allowed and the Registry will proceed accordingly.

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