A Mohammedan male dies leaving behind a widow and a minor son. He had some immovable property which is sold by the widow claiming that she needs money for herself and her son. Is the sale valid?

Question: A Mohammedan male dies leaving behind a widow and a minor son. He had some immovable property which is sold by the widow claiming that she needs money for herself and her son. Is the sale valid? [DJS 1999]

Find the question and answer of Muslim Law only on Legal Bites. [A Mohammedan male dies leaving behind a widow and a minor son. He had some immovable property which is sold by the widow claiming that she needs money for herself and her son. Is the sale valid?]

Answer

The term 'Guardianship' (Wilayat) connotes the guardianship of minors. As per Muslim law, the mother is entitled to the custody of her minor children up to a certain prescribed age - regardless of the sex of the child. But she is not the natural guardian of the minor and his property. The father is alone the natural guardian of the child and in case he dies his executor becomes the natural guardian of the child. The mother of the child does not have more power to deal with the child's property than any outsider. In case the mother is the father's executor or is a certified guardian she has all the power of a de-facto guardian.

No power to alienate immovable property:

The position of the de facto guardian is different from the legal guardian and the guardian appointed by the court. He is not entitled to alienate the property of the minor. The alienation of the minor's property without the prior permission of the court is completely void in the case of the de facto guardian.

1. He is not entitled to refer to any dispute regarding the property belonging to a minor.

2. He cannot give consent on behalf of the minor to validate by the co-heir of the property.

3. He cannot bind the minor by any kind of bond or lien of his father's property.

In Vekama v. SV Chisty, [AIR 1951 Mad 399] the minor's dad along with other co sharers made a home loan on the suit properties. Afterwards, after the dad's demise, the mother as watchman of the minor with the other co-sharers executed a deal deed. It was held:

1. That the deal deed executed by the mother was void and broken under the Muslim

2. Where the Muslim minor tries to recuperate property sold by his unapproved watchman maintaining to follow up for his sake, he looks for arbitration that the deal is void and without such an announcement he can't acquire the property

3. In such cases the adage that 'he who looks for value should do value' unmistakably applies

4. The court has power under Section 41 of the Specific Relief Act to grant remuneration if the equity of the case so requires.

Thus, a mother being a `de facto guardian' cannot sell the property of a minor. Even then if she does so, such a sale will be of nullity. The (de facto guardian) can also refer the dispute if any, relating to the property, to arbitration. In this connection, in the case of Johra Bibi v. Mohammad Sadak, (AIR 1951, Mad 992), it was held that even the mother of a minor, without getting herself appointed as a legal guardian, cannot refer the matter to arbitration. Even the sale deed executed by a mother as a `de facto' guardian on the property of her minor is held void and inoperative as already decided in the case of Venkama Naidu v. Chisty (AIR 1951 Mad. 399).

So, applying the aforesaid legal position to the present case at hand, where a Mohammedan male dies leaving behind a widow and a minor son, the sale of immovable property by the widow claiming that she needs money for herself and her son is not valid until she gets herself declared as a legal guardian by the court.