Distinguish between the de facto guardian and de jure guardian in Muslim law in respect of a minor's property. What is the extent to which a de facto guardian can alienate the movable and immovable property of the minor?

Question: Distinguish between the de facto guardian and de jure guardian in Muslim law in respect of a minor's property. What is the extent to which a de facto guardian can alienate the movable and immovable property of the minor? [BJS 1975, DJS 2000]

Find the question and answer of Muslim Law only on Legal Bites. [Distinguish between the de facto guardian and de jure guardian in Muslim law in respect of a minor's property. What is the extent to which a de facto guardian can alienate the movable and immovable property of the minor?]

Answer

A person may neither be a legal guardian nor a guardian appointed by the Court but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called a de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor.

This mode of guardianship comes into play when the person assumes the role of guardian without any legal or statutory authority. Therefore, a person who by way of circumstances is in the guardianship of a minor child not either by way of testament or statutorily then these types of guardianship is called a De-facto guardianship.

The expression "de facto guardian" is used in contradistinction to "de jure guardian." Legal guardians and guardians appointed by the Court are de jure guardians

A Natural Guardian or a Legal Guardian

Etymologically, a natural guardian is a person who shall be naturally or by the virtue of being a parent shall be responsible for the child. Under all schools of Muslim law, the father is the natural guardian of the child. This right is derived from the Substantive Muslim Law. The person who will be next in turn to take over guardianship in the absence of the father. But the father, if he is alive he shall be the supreme and the only guardian who shall have the right to make decisions on behalf of the minor child.

Guardianship and Wards Act, of 1890 comes into play when the guardian of the minor child is appointed by the court. The Rules and procedures are highlighted under this act. However, it needs to be noted that this act shall not only apply to Muslims but it also applies to every Indian citizen in India. Under Muslim law, when the father of the child is not there and there is an absence of legal documents specifical the absence of a will then the court shall have the authority to appoint the legal guardian of the minor child. When the guardian is appointed by this method then they are also called 'Statutory Guardians' since they are being appointed by the virtue of the Guardianship and wards Act, of 1890.

The mother, brother, uncle, and all relations other than the father and father's father are de facto guardians, unless they are appointed executor by the will of the father or father's father, or are appointed guardians by the Court.

In the case of Ali Mohammad v. Ramniwas,('67) A. Raj. 258, A mother and her minor son executed a mortgage deed. Later the son, as the plaintiff, wanted to redeem the mortgage: It was held in the case that a de facto guardian has no power to transfer any right or interest in the immovable property of the minor and that such a transfer is not merely voidable but void. It is void also qua those who are sui juris.

Alienation of immovable property

A de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely voidable, but void. A de facto guardian is a bare custodian of their property; and has no power to sell, mortgage, or otherwise deal with immovable property belonging to them.

As stated by their Lordships of the Privy Council in Imambandi v. Mutsaddi, (1918) 45 I.A. 73, which is the leading case on the subject,

"the mother has no larger powers to deal with her minor child's property than any outsider or non-relative who happens to have a charge for the time being of the infant." A sale, mortgage, or any other transfer by the mother is wholly void.

In Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty,(1996) 1 SCR 11, the Supreme Court held that father is the natural guardian and in his absence, other legal guardians would be entitled to act. In their absence, a property guardian appointed by the 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 minor's estate, and therefore, the competent person entitled to alienate the minor's property would be subject to the above condition, either the natural guardian or the property guardian appointed by the Court. In this case, after the demise of the father, no property guardian was appointed. The mother, therefore, is not a guardian for the alienation of the property of the minor. The sale by the mother, therefore, is void.

Moreover, in regard to the alienation of immovable property, a de facto guardian has the power to sell and pledge the goods and chattels, of the minor in his charge for the minor's imperative necessities, such as food, clothing, or nursing. But a mother has no power as a de facto guardian to enter into any contract whereby a minor would be saddled with any pecuniary liability.

On the other hand, a legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely Imambandi v. Mutsaddi, (1918) 45 I.A. 73:

(1) where he can obtain double its value;

(2) where the minor has no other property and the sale is necessary for his maintenance;

(3) where there are debts of the deceased, and no other means of paying them;

(4) where there are legacies to be paid, and no other means of paying them;

(5) where the expenses exceed the income of the property;

(6) where the property is falling into decay; and

(7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.

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