"A" is a mother of a minor Muslim "B". She sells "B's" immovable property for his necessities and benefits. "A" is the de facto guardian of "B". Discuss the validity of the sale.

Question: "A" is a mother of a minor Muslim "B". She sells "B's" immovable property for his necessities and benefits. "A" is the de facto guardian of "B". Discuss the validity of the sale. [UPJS 2012]

Find the question and answer of Muslim Law only on Legal Bites. ["A" is a mother of a minor Muslim "B". She sells "B's" immovable property for his necessities and benefits. "A" is the de facto guardian of "B". Discuss the validity of the sale.]

Answer

The power of a guardian on the property of a minor is as follows:

(1) Powers on the immovable property.

(2) Powers on the movable property.

(3) Powers to purchase and sale the property.

A guardian may exercise his or her authority over a minor's immovable property in accordance with his or her capacity. A legal guardian, for instance, has more authority in this area than a guardian appointed by a court or a "de facto" guardian.

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.

(a) A legal guardian's authority - Normally, a legal guardian cannot sell a minor's immovable property. However, he may do so (1) if he can obtain its double value, (2) if it becomes necessary for the minor's maintenance, (3) if there are debts or legacies that cannot be paid in any other way, and (4) if the property is likely to fall or be destroyed.

(b) The powers of a de facto guardian - A minor's property cannot be sold by a "de facto guardian". Even if he still does it, the sale will be void. He (the de facto guardian) may also request arbitration for any property-related disputes that may arise.

In this regard, in the case of Johra Bibi v. Mohammad Sadak, AIR 1951 Mad 992, it was held that even the mother of a minor, without getting herself appointed as a legal guardian, cannot refer the matter to arbitration. Even the sale deed executed by a mother as a `de facto' guardian on the property of her minor is held void and inoperative as already decided in the case of Venkama Naidu v. Chisty, AIR 1951 Mad. 399.

In Ali Mohammad v. Ramniwas, AIR 1967 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.

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