06 June 2020

Muslim mother is not guardian of minor's property

  • Whether consent of mother is necessary to alienate property of minor?

  • Whether father is required permission of District Court for alienating property of minor?
   Grand mother gave property to minor grandson as a gift - Father without consent of mother of minor and without permission of court executed agreement to sale with third-party - before execution of sale deed, minor attained majority - Notice for specific performance of agreement given to the owner who has attained the majority - suit for specific performance filed against owner who was minor at the time of execution of agreement to sale by his father - Trial court hold that father of the minor was the legal guardian, however, he did not have the authority to execute the agreement, as the defacto guardian was the mother - Suit dismissed - First appellate court reversed the judgment of trial court - Second appeal filed in High Court.

Held: Under Mohammedan Law the mother cannot act or be the guardian of the property of the minor. Consent or permission neither of mother nor of District Court is necessary for father, being natural guardian to alienate property of minor.

   In light of the substantial questions of law framed, it would be material to note that under Paragraph 359 of the book principles of Mohammedan Law by Sir Mulla, the father is stated to be the guardian of the property of the minor. Paragraph 359 reads as under:

Muslim mother is not guardian of minor's property
"359. Legal guardians of property The following persons are entitled in the order mentioned below to be guardians of the property of a minor -
(1) the father
(2) the executor appointed by the father's will;
(3) the father's father;
(4) the executor appointed by the will of the father's father. "
   This would categorically demonstrate that the mother does not fall in any of the categories of guardian of the property of a minor under Mohammedan Law. This position, is clear from the dictum of the Hon'ble Apex Court in the case of Mahboob Saheb Vs. Syed Ismail and others AIR 1995 SC 1205 wherein it has been held in Para 5 as under:

   "Equally, in Mohammedan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian."[Para No14]

   In light of the above position, the finding by the Trial Court that the agreement dated 03.07.1991, was void and unenforceable in law, due to absence of consent of the defendant no.2/mother of the defendant no.1, clearly is unsustainable in law as under Mohammedan Law the mother cannot act or be the guardian of the property of the minor.[Para No.13]

   The finding therefore rendered by the learned Trial Court, that the agreement in question, in absence of the same having being executed by the mother of the minor or not having the consent of the mother of the minor, was unenforceable in law is clearly unsustainable in law, as in the instant case, the agreement was entered into by the father natural/property guardian of the minor.[Para No18]

   A further plea was sought to be raised, that the permission of the District Judge under the provisions of the Guardians and Wards Act, was sine qua non before entering into an agreement, however, this argument has to be noted to be rejected as under Paragraph 360, of Mohammedan Law by Sir Mulla the duty of appointing a guardian for the protection and preservation of the minor's property falls on the Judge as representing the State, only in default of the legal guardians mentioned in Paragraph 359. In the instant case, already the defendant no.3 was the natural guardian for the defendant no.1 and had acted and was acting as such.[Para No.19]

   Second appeal dismissed.

Bombay High Court

Anwarhussain Abdul Gaffar
Yamunabai Tulshiram Pawar

Decided on 06/06/2020

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