A Mohammedan dies, leaving debts, some house property, a minor son, a widow, and a brother. In order to discharge the debts the widow sells a house purporting to act as guardian of her minor son. Is the sale binding on the minor? Will it make any difference if the sale is effected by the brother who has been actually managing the property left by the deceased on behalf of the minor?

Question: A Mohammedan dies, leaving debts, some house property, a minor son, a widow, and a brother. In order to discharge the debts the widow sells a house purporting to act as guardian of her minor son. Is the sale binding on the minor? Will it make any difference if the sale is effected by the brother who has been actually managing the property left by the deceased on behalf of the minor? [Punj JS 2010]

Find the question and answer of Muslim Law only on Legal Bites. [A Mohammedan dies, leaving debts, some house property, a minor son, a widow, and a brother. In order to discharge the debts the widow sells a house purporting to act as guardian of her minor son. Is the sale binding on the minor? Will it make any difference if the sale is effected by the brother who has been actually managing the property left by the deceased on behalf of the minor?]

Answer

In Muslim law, a mother cannot be designated as a guardian of the minor's property. Any alienation of property can be justified only on grounds of need and necessity.

Guardianship of a minor can be defined as overall supervision of the minor's growth and welfare. Guardianship empowers a guardian to have custody of a minor for a certain period.

The term 'Guardian' is defined in the Guardians and Ward Acts as "a person having the care of a person of a minor or of his property, or of both his person and his property."

Tahir Mahmood defines guardianship in Muslim law as "Guardianship of a person to a child belongs primarily to its father, the mother's being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of the person, namely, the custody and physical upbringing of the child." Under Muslim law, the Guardianship of a minor is known as Hizanat.

Muslim law recognizes various types of Guardianship which are as follows:

• Natural or Legal Guardian
• Testamentary Guardian
• Guardian appointed by courts
• De-facto Guardian

As far as Natural Guardians' guardian is concerned, they are naturally termed as the first legal guardian of the minor. Under various schools of Muslim law, the father is considered the natural guardian of the minor. The father's right to act as guardian is an absolute right which is given to him under the substantive law of Islam.

Father is known as the natural guardian of the minor but in his absence instead of his mother, the grandfather has the authority to act as guardian of the minor. If both are not present or dead then any executor who is appointed by any of them can act as guardian. A minor cannot be represented by a grandfather if the father is alive.

The natural guardian of a minor in order of priority is as follows:

1. Father

2. Executor of father

3. Paternal grandfather

4. The executor of a paternal grandfather

Thus, the mother, brother, uncle etc. are not entitled to of right to be the legal guardian of the property of a minor.

Moreover, Mother can neither act as a guardian nor be appointed as a guardian under Muslim law. In the case of Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner, (2000) 8 SCC 507, the Hon'ble Supreme Court held that a mother of a minor cannot be appointed as his guardian to accept the gift on his behalf during the lifetime of the minor's father.

It is to note that one of several heirs of the deceased Mahomedan, though he may be in possession of the whole estate of the deceased, has no power to alienate the shares of his co-heirs, not even for the purpose of discharging the debts of the deceased. If he sells or mortgages any property in his possession forming part of the estate of the deceased, though it may be for payment of the debts of the deceased, such sale or mortgage operates as a transfer only of his interest in the property. It is not binding on the other heirs or the other creditors of the deceased especially not binding on a minor unless it is for necessity or for his benefit.

In the present case at hand, in order to discharge the debts the widow sells a house purporting to act as guardian of her minor son. The sale is not binding on the minor and even if the sale is effected by the brother who has been actually managing the property left by the deceased on behalf of the minor, the same cannot be deemed to be binding on the minor as per the provisions of Muslim Law.

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