Can a Muslim mother, who is not appointed guardian of a minor's property, affect sales of a minor's property for their benefit? Discuss with decided cases.

Question: Can a Muslim mother, who is not appointed guardian of a minor's property, affect sales of a minor's property for their benefit? Discuss with decided cases. [HJS 2000]

Find the question and answer of Muslim Law. [Can a Muslim mother, who is not appointed guardian of a minor's property, affect sales of a minor's property for their benefit? Discuss with decided cases.]

Answer

Father is the natural guardian and in his absence, other legal guardians would be entitled to act. In their absence, the property guardian appointed by the competent court would be competent to alienate the property of the minor with the permission of the court. When a sale is to be made on behalf of the minor the necessary ingredients are that the sale must be for the benefit of the estate of the minor and, therefore, the competent person entitled to alienate the minor's property would be, either the natural guardian or the property guardian appointed by the Court. The mother, therefore, is not a guardian for the alienation of the property of the minor, and the sale made by the mother, therefore, is void. This proposition was observed by the Hon'ble Supreme Court of India in Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty & Ors, 1996 AIR 1003.

The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father.

A Muslim mother cannot alienate the property of her son unless she is 'certified' to be the legal guardian under the Mohammedan law, the Bombay High Court ruled recently in Shri Dadu Nemisha Balwan & Others v. Shri Sadik Malikso Bargir, (Second Appeal No. 150 of 1998). The High Court has held a mother is not a 'natural' guardian as per the Mulla principles and thus cannot sell or create any third-party interests in a son's property.

Having considered the dispute, the court referred to the Mahomedan laws pertaining to guardianship, which recognize guardians under four categories — natural or legal, testamentary, a guardian appointed by the court, and a de facto guardian.

The natural or legal guardian has a legal right to control and supervise the activities of a minor child. The father or the paternal grandfather is recognized as a natural guardian under all the schools prevailing under the Mahomedan law and in his absence, an executor appointed by him can act as a legal guardian

The bench noted a testamentary guardian is appointed by Will while a de facto guardian is an authorized person, who has custody of a minor or his property and is a person holding no authority of guardianship, but under circumstances has taken the responsibility to act as a guardian of a minor.

As per the Mulla Principles of Mohammedan Law (21st Edition), the mother is not a de jure (rightful) guardian and, therefore has no right to sell the interest of her minor children in immovable property. Such a transaction is not merely voidable but void.

The court further clarified that when the mother, merely finds a mention as a guardian while purchasing the property for the benefit of the minor, the sale deed would not confer the status of a legal guardian on the mother. It is only if the mother is the executrix or a certified guardian under Mohammedan law, all powers of de jure (rightful) guardian are conferred upon her. In the absence thereof, the transaction by her on behalf of the minors is void.

Muslim Law – Notes, Case Laws, And Study Material

Test Series for Competitions