Muslim Mother Not Legal Guardian Of Minor’s Property By Right, But Court May Appoint Her For Child’s Welfare: Orissa High Court

The Court was hearing an appeal under Section 47(e) of the Guardians and Wards Act against a District Judge’s rejection of a mother’s application seeking appointment as guardian of her minor daughter’s property and permission to sell the child’s undivided interest.

A Bench of Justice Sanjay Kumar Mishra observed: “The mother is not a legal guardian of the minor's property as of right. In Imambandi vs. Mutsaddi and Meethiyan Sidhiqu, AIR 1918 PC 11, it was held that an unauthorised mother or other de facto guardian cannot, merely, by assuming control over the minor's property, convey the minor's immovable property so as to bind the minor.”

The Court added: “The conclusion, however, does not answer the separate statutory question which arises in the present case. Section 360 of Mulla's Principles of Mahomedan Law recognises that, in default of the legal guardians mentioned in Section 359, the Court is to appoint a guardian for the protection and preservation of the minor's property. Section 7 of the Act, 1890, independently and expressly, empowers the competent Court to appoint a guardian of the minor's property, when such appointment is for the welfare of the minor. Section 17 of the Act, 1890 further directs the Court to be guided by the welfare of the minor, while considering the proposed guardian's character, capacity, nearness of kin and existing relationship with the minor and her property.”

Advocate T.K. Mishra appeared for the appellants. Advocates J. Pal and L. Senapati appeared for Respondent No. 1, while Additional Standing Counsel M.K. Dash appeared for the State.

Background

The minor’s father purchased the disputed property in Bhubaneswar in 1993 and died in 2021. His widow, their major daughter and their minor daughter were subsequently declared his legal heirs. The minor remained in her mother’s care and custody.

The mother stated that she had no sufficient independent income and required funds for the minor’s education, maintenance and welfare. She sought appointment as guardian and permission to sell the minor’s share in the property, which was situated about 170 kilometres from their residence. She undertook to use the proceeds for the child’s welfare and, as far as possible, to acquire or invest in property for her.

The major daughter supported the application, the State filed no objection and no other opposition was received despite publication of notice. The District Judge nevertheless rejected the application after relying on Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty (1996) and finding that the requirements for appointment and alienation had not been established.

Court’s Observations

Mother Can Be Appointed By Court Despite Lacking Automatic Authority

The Court agreed that the mother did not possess an automatic right under Mahomedan law to act as guardian of the minor’s property. It held, however, that this did not disqualify her from being appointed by a competent court under Sections 7 and 17 of the Guardians and Wards Act.

The Court found that the father had died and that no executor under his will or paternal grandfather acting as legal guardian had been shown. It noted that the mother had maintained and educated the child, faced no opposition to her appointment and had no interest shown to be adverse to the minor.

The Court held: “Hence, this Court is of the view that, the Appellant No.1 mother does not become the legal guardian of the minor's property (Appellant No.2) by status alone. However, she is not disqualified from being appointed by the competent Court as guardian of the minor's property, when the statutory welfare requirements are satisfied. Once appointed by the Court, her powers are controlled by the Act, 1890, in particular, Sections 29 and 31 thereof.”

Sale Requires Necessity Or Evident Advantage To Minor

The Court explained that Section 29 places a ward’s immovable property under judicial control and prohibits its transfer without prior permission. It stated that Section 31 permits a sale only where necessity or an evident advantage to the ward is established.

The Court observed: “The enquiry is therefore not whether the mother is a legal guardian under personal law, but whether the Court, having appointed her, is satisfied on the material before it that a controlled sale is justified for the minor's welfare and evident advantage.”

Referring to Harikrishnan v. Sri Chanda Prabhuji Jain Temple (1962) and Smt. Sakshi Devi v. State of NCT of Delhi (2014), the Court noted the protective character of the jurisdiction and the relevance of a child’s education, maintenance and other welfare requirements.

The Court found that the father’s death, the mother’s lack of sufficient income, the minor’s school-going age, the distance of the property and the proposed welfare use of the sale proceeds cumulatively established necessity or, at minimum, evident advantage to the child.

Independent Valuation And Preservation Of Sale Proceeds

The Court held that the mother’s inability to state the property’s precise market value during cross-examination was not sufficient to reject the application. It observed that the guardianship court could obtain an independent valuation, prevent a sale below verified market value and preserve the minor’s proceeds through a secure investment.

The Court also examined the applicable succession principles. On the stated material, it calculated the minor daughter’s share as 7/16th but clarified that the legal-heir certificate was not conclusive regarding fractional shares. It therefore directed that the minor’s exact lawful undivided share be verified from the title and succession material before any sale.

The Court clarified: “This Court has not treated the mother as the natural or legal guardian of the minor's property under Mahomedan Law. The authority to manage and alienate the minor's property flows from her appointment by the competent Court and from the conditional permission granted under the Guardians and Wards Act, 1890.”

Conclusion

The High Court allowed the appeal and set aside the District Judge’s judgment. It appointed the mother as guardian of the minor’s property for the limited purposes of protection, management and the transaction authorised by the judgment.

The Court directed verification of the minor’s exact share and an independent current valuation. It prohibited a sale below the value attributable to that share and required prior compliance before the guardianship court, including the prescribed bond and surety.

The Court directed that the minor’s net sale proceeds be placed in a secure fixed deposit or another court-approved investment. Withdrawal of the principal would require a further court order, except for permitted expenditure on the minor’s education, maintenance, health, residence or other demonstrable welfare needs.

The mother was directed to submit the sale deed, proof of consideration, investment receipt and account statement within the period fixed by the guardianship court, preferably within six weeks of receiving the consideration. The Court directed the guardianship court to issue the necessary certificate and complete the consequential steps.

Cause Title: Shamina Naaz and Another v. Rimsha Taashfeen and Another (Neutral Citation: 2026:OHC:189)

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