Guardianship of the Property

By | March 4, 2017
Guardianship of the Property

Last Updated on by Admin LB

Legal Guardianship of the minor’s property: Under Muslim law following parsons, in the order of performance, are recognized as the legal guardian of a minor’s property-

  1. father
  2. Executor appointed by the father under a will.
  3. Paternal grandfather
  4. Executor appointed by the paternal grandfather under a will.[1]

The guardian of a minor’s property belongs primarily to the father who is a natural guardian. After his death, it belongs to the executor appointed by the father under a will. Such an executor, under the authority of the father’s will, acts as a legal guardian of the minor’s property. If there is no will appointing any person as an executor then, after the death of the father, the paternal grandfather is entitled to the guardianship of the minor’s property. No other relatives like the mother, brother of the minor are given this status. However, the father & paternal grandfather have the authority to appoint any person as executor.

In Mahboob Saheb v. Syad Ismail[2], The Supreme Court of India has held that, although the mother is in the nearest relationship with her child, she is not regarded as the guardian of her minor child’s property. Therefore she has no right to transfer the property of the minor child.

Power of the Legal Guardian: The guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with his own, and subject to the provisions of the Guardians & Wards Act, 1890, he may do all reasonable and proper act for the realization, protection or benefit of the minor’s property.[3] The power of the guardian to deal with the property depends upon the nature of the property.

Transfer of Immovable Property by Legal Guardian

Keeping in view the Muslim personal law and also the provisions of  the Guardians & Wards Act, 1890, the court in India has laid down  specific rules relating to guardian’s power of disposition of the minor’s property, are given  below:

  1. Whereby sale, the guardian can get double the value of the property of his
  2. Where the sale is absolutely necessary for the maintenance of the minor.
  3. Where the sale is necessary for the satisfaction of a debt incurred by the livelihood of the minor.
  4. Where there are some general provisions in the will of the testator such as the payment of the legacies, which cannot be complete without the sale of the property.
  5. Where the property ceases to be a beneficial property.
  6. Where the property is in the hands of a usurper and the guardian has a reasonable belief that the property cannot be recovered from such person.
  7. here the property is in decaying or is being destroyed, or there is an imminent danger of its being lost.

It is evident from the preceding line that the guardian’s power of disposing off the minor’s property by sale is very much limited. The minor’s property can be sold only in exceptional circumstances when it is either absolute necessary or is manifestly advantageous.[4]

Mortgage:  The legal guardian’s right to mortgage is the same as that for the sale. A guardian is not authorised to mortgage his ward’s property except in the interest of the minor.

Lease: The guardian’s power to grant a lease of the minor’s property is also subjected to the conditions that is must be for the advantage of the minor or is otherwise urgently required.

Transfer by the guardian is voidable: Transfer of the property by a legal guardian against the provisions of the Muslim Law is not void but only voidable at the instance of minor on attaining the puberty. But where the transfer is according to the Muslim law, it is binding on the minor and on attaining the majority ha cannot ignore the liability.

Transfer of Movable Property by Legal Guardian: Under Muslim Law, the legal guardian has the right to deal with the movable property of his ward. The guardian is authorised to sell, pledge or pawn the movable property of the minor, property it is urgently required in the interest of the minor.

Right to enter into a contract: formerly, the Privy Council’s view was that a legal guardian was competent to enter into a contract on behalf of a minor for purpose of immovable property. Such a contract, it was observed by the court, would not be binding either on the minor personally or upon its estate.[5]But later on in the case of Sri Kakulam v. Kurra Subba Rao[6], the privy council held that a de jure or legal guardian is empowered to enter into a contract on behalf of the minor and such contract is binding on the minor as well as on his estate provided such contract was for the benefit of the minor.

Exercise of pre-emption: A legal guardian is competent to exercise the right of pre-emption on behalf of the minor. The guardian is also entitled to refuse to exercise the same if it is not in the benefit of the minor.[7]

Acknowledgement of the Debt: The legal guardian is empowered to acknowledge a debt of his ward so as to give the creditor a fresh start.

Testamentary Guardian of Minor’s Property:  As discussed earlier, the father and the grandfather have the right to appoint executors by a will to discharge the functions of the natural guardians after their death. Such executor-guardian is called a testamentary guardian. They too can act as legal guardians under Muslim Law. In so far as the power of the testamentary guardians to deal with the minor’s properties is concerned, it is the same as that of a father or paternal grandfather.

Guardians of Property Appointed by Court: In the absence of the legal guardian. i.e.  Father, paternal grandfather and their executor, the guardian for the property of a minor is appointed by the court. Guardian by the court is also termed as Certificated Guardian.

Power of the Guardian Appointed by the Court: The power and the duties of a guardian appointed by the court are governed by the Guardians & Wards Act, 1890.

Transfer of immovable property: Under Section 33 of this Act the court has authority to define, restrict or extend the power of a guardian from time to time. In brief, the power of the testamentary to deal with the minor’s property is given below:

A guardian appointed by the court has no authority to deal with the minor’s property without the sanction of the court. Such a guardian cannot sell, exchange, mortgage, charge, or otherwise transfer the immovable property without the previous permission of the court[8].

Lease: A guardian appointed by the court is empowered to lease out the minor’s property for a period of 5 years or for any term not extending more than one year beyond the date on which the minor attains majority. (Solema Bibi v. Hafeez Mohammed, (1927) 54 Cal. 687)

Movable property: A guardian appointed by the court is empowered to deal with the movable property without any previous permission of the court. (Section 27, Guardians and wards act, 1890)

De facto Guardian of Minor’s property: A de facto guardian is the person who is neither a guardian under Muslim personal Law nor a guardian under the Guardians and Wards Act, 1890. A de facto guardian is no guardian in the eye of law and is simply an unauthorised person who deals with the minor’s property. Legal effects of the dealing by de facto guardians in respect of minor’s property are given below:

Immovable property: A De facto guardian has no authority to deal with the immovable property of a minor. Transfer of any right or interest in the minor’s immovable property by a de facto guardian is void ab initio. (Imambandi v. Mutsaddi, (1918) 45 IA 73)

Movable property: A de-facto guardian is empowered to sell the pledge the movable property of a minor provided such a transfer is urgently required for the basic needs such as fooding or nursing of the minor.

[1] Imambandi v. Mutsaddi,  (1918) 45 IA 73

[2] AIR (1995) SC 1205

[3] Tyabji: Muslim Law, Ed. IV, p. 243

[4] Jamadar v. Amir Hasan, AIR (1957) Pat. 243.

[5] Mir Sarwarjan v. Fakhruddin , (1911), 39 IA

[6] (1948) PC 95

[7] Lal bahadur v. Durga, (1881), 3 All. 437; Umrao Singh v. Dalip singh, (1901) 23 All.129

[8] Sec. 29, 30 & 31 of the Guardians and Wards Act, 1890.

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Author: Mayank Shekhar

LLM, Faculty of Law, University of Delhi, UGC NET (Law) qualified. Under Mayank's leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

2 thoughts on “Guardianship of the Property

    1. Mayank Shekhar Post author

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