When, during the British period, testamentary powers were conferred on Hindus, the testamentary guardians also came into existence. It was the father’s prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.’ The father may appoint a testamentary guardian but if the mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If the mother appoints a testamentary guardian, her appointee will become the testamentary guardian and the father’s appointment will continue to be ineffective. If the mother does not appoint, the father’s appointee will become the guardian. It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian, as Section 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) confers such power on the mother alone.

Meaning:

A Testamentary Guardian is one who is appointed by the will of the natural guardians of the minor.  The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. It is necessary for the testamentary guardian to accept ‘the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.

Who may appoint a testamentary guardian?

A testamentary guardian is a guardian appointed by the way of will. As per Section 9 (1) of HMGA, the Hindu Father (Natural Guardian of the minor child as per Section 6 of HMGA) can appoint a guardian by will for the person and separate property.

Who can appoint a testamentary guardian in case of an illegitimate child?

Section 9 (4) states that a Hindu Mother, who is entitled to be the natural guardian, can by will appoint a testamentary guardian for any minor illegitimate child to take care of him and his property

Section 9: The Hindu Minority and Guardianship Act, 1956:
Testamentary guardians and their powers.—

(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both.

(5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.

(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

Under the old Hindu law, a Hindu father alone and no other had the power to appoint a testamentary guardian of his minor children. A husband had no power to appoint his minor wife’s father as her testamentary guardian under his Will. Kapila Annapumamma v. Ramanujeya Ratnam AIR 1959 AP 40. A father was entitled to appoint by will a guardian of the person of his minor children even to the exclusion of their mother. – Alagappa v. Mangatrai IL 40 Mad 672. A Hindu mother cannot appoint by Will a guardian even for the person of a minor. Under Mitakshara law, the management of the whole property including the minor’s share in joint family property would be vested not in the mother but in the eldest male member. It would be otherwise where the family is divided or where the minor has separate property.-Anusitavathi v. Siromani 1938 ILR 40 (Mad) A Hindu father or another senior coparcener of a Mitakshara family has no power to appoint, by will or otherwise, testamentary guardians for the coparcenary property of the minor- Chidambaram Pillai v.Rangaswami AIR 1941 Mad 561. The present Act preserves the old law insofar as it excludes the undivided interest of the minor in joint family property from the operation of Section 9. A father cannot appoint a testamentary guardian in respect of the undivided interest of a minor in joint family property- Pattayee v. Subbaraya 1980 HLR 500 (Mad).