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Section 28: Powers of testamentary guardian

Guardians and Wards Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1890
Section 27 All 53 Sections of Guardians and Wards Act Section 29

Legal Commentary & Landmark Judgments: Section 28

Section 28 defines and restricts the powers of a testamentary guardian over the minor's property, subordinating testamentary authority to the express terms of the will and statutory sanctions.

  • Subordination to Will Terms: Where a guardian has been appointed by will or other instrument, his power to mortgage, charge, sell, gift, exchange, or lease property is subject to any restriction imposed by the instrument.
  • Court Permission to Alienate (Section 28(2)): Unless the will expressly forbids it, the court may, upon application, permit the testamentary guardian to alienate property notwithstanding testamentary restrictions if necessary for the minor's benefit.
  • Protection Against Improvident Sales: Ensures that testamentary guardians do not exceed the specific powers conferred by the testator.
Key Landmark Precedents:
  • Sri Narayan Bal v. Sridhar Sutar (1996) 8 SCC 54: The Supreme Court noted that testamentary guardians are strictly bound by the four corners of the will; unauthorized alienations are voidable at the minor's instance under Section 30.
  • Devgonda Patil v. Shamgonda Patil AIR 1992 Bom 189: Affirmed that testamentary restrictions on property management cannot be circumvented without formal application and sanction from the District Court.
Courtroom Practice & Strategic Litigation Guidance:

When a testamentary guardian seeks to sell real estate to fund the minor's overseas education, examine the will. If the will restricts sales or is silent, file a formal application under Section 28(2) seeking prior judicial permission before executing any sale deed.

Section 27 All 53 Sections of Guardians and Wards Act Section 29