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Section 38: Right of survivorship among joint guardians

Guardians and Wards Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1890
Section 37 All 53 Sections of Guardians and Wards Act Section 39

Legal Commentary & Landmark Judgments: Section 38

Section 38 establishes the principle of survivorship among joint guardians of property, ensuring that on the death of one joint guardian, the power to manage the estate vests in the surviving guardian.

  • Survivorship of Property Powers: On the death of one of two or more joint guardians of property, the guardianship of property continues to the survivor or survivors.
  • Continuous Administrative Control: Guards against sudden asset freezes, bank account locks, or inability to pay estate taxes upon the demise of a co-guardian.
  • Court Power to Appoint Replacement: The court retains full discretion to appoint an additional co-guardian upon application under Section 8.
Key Landmark Precedents:
  • Ramesh Chand v. Suresh Chand (2012) 188 DLT 538: Affirmed that the survivorship rule under Section 38 maintains unbroken management of the minor's business affairs.
  • Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42: Observed that joint fiduciary appointments under Section 38 provide both mutual checks and administrative continuity.
Courtroom Practice & Strategic Litigation Guidance:

Where joint guardians are appointed and one passes away, the survivor should submit a death certificate to banks and revenue authorities alongside Section 38 to update operating mandates without requiring a fresh court appointment.

Section 37 All 53 Sections of Guardians and Wards Act Section 39