Muslim Mother Can Be Appointed Guardian Of Minor's Property, Sell Share For Child's Welfare: Orissa High Court
The Orissa High Court has recently held that though mother is not a legal guardian of the minor's property as of right under the Muslim Law, she can still be appointed as guardian of such property by competent Court under the Guardians and Wards Act, 1890 ('the 1890 Act'), when such appointment is required for welfare and evident advantage to the minor. [2026 LiveLaw (Ori) 120]While...
The Orissa High Court has recently held that though mother is not a legal guardian of the minor's property as of right under the Muslim Law, she can still be appointed as guardian of such property by competent Court under the Guardians and Wards Act, 1890 ('the 1890 Act'), when such appointment is required for welfare and evident advantage to the minor. [2026 LiveLaw (Ori) 120]
While elucidating the object underlying the scheme enshrined under the 1890 Act vis-à-vis alienation of minor's property, the Bench of Justice Sanjay Kumar Mishra observed–
“Section 31 of the Act, 1890 then provides the substantive test; permission may be granted in a case of necessity or for an evident advantage to the ward. 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.”
The first-appellant is the mother of the second-appellant/minor. The husband of the first-appellant had purchased a landed property in Bhubaneswar before he died in 2021. The first-appellant is residing at Berhampur along with two of her daughters (second-appellant/the minor and first-respondent).
The deceased father used to provide for education and maintenance of the minor daughter. After his demise, the first-appellant, being a Pardanashin lady, had no independent and sufficient income to provide proper education, nourishment, food and shelter to the minor. Therefore, she sought permission to sell the minor's share in the property for her needs and welfare.
Notably, Section 29 of the 1890 Act places the immovable property of the ward under judicial control by prohibiting transfer without previous permission of the Court. Section 31 further says permission may be granted in a case of necessity or for an evident advantage to the ward. The District Judge, Ganjam, however, rejected the prayer for such permission, resulting in filing of this appeal.
The core issues which emerged for adjudication were whether a Muslim mother can be appointed as guardian of minor's property and be given permission to alienate the same. If the answers to the above questions were found to be affirmative, then on what considerations such permission to be granted.
The Court noted that 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 1890 Act empowers the competent Court to appoint a guardian of the minor's property, when such appointment is for the welfare of the minor.
Further, Section 17 thereof 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.
Justice Mishra noted that in the present case, the father of the minor is dead. No executor under his will or paternal grandfather acting as the legal guardian of the property was shown. The first-appellant is the mother in whose care and custody the minor admittedly remains, and she has been maintaining and educating her since the death of the father.
Therefore, the Court was of the view that even though the mother does not become the legal guardian of the minor's property by status alone, 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.
Accordingly, the consideration which was required to be examined was whether the permission sought by the mother to alienate/sell minor's share of property is in tandem with her welfare and to her evident advantage. On a factual analysis, the Court observed–
“The present facts disclose more than a bare desire to liquidate the minor's property. The father, who was stated to be the bread earner, is no longer alive; the mother states that she has no independent and sufficient income; the minor is of school-going age; the property is situated at a substantial distance from the family's place of residence; and the mother proposes to apply the consideration for education, maintenance and acquisition/investment of property for the minor. The major daughter supports the application and there is no opposing evidence. The cumulative circumstances, viewed in the protective framework of Section 31 of the Act, 1890, establish a case of necessity and, at the least, an evident advantage to the ward.”
Consequently, the Court applied the relevant provisions of the Mahomedan Law to determine the minor's share in the property and allowed a controlled sale of such property in the interest of the minor. Moreover, as per Section 31(2) and (3) of the 1890 Act, the Court attached certain conditions/safeguards, including the one requiring the entire net sale consideration to be deposited in a fixed deposit, which have to be complied with strictly while alienating the minor's share in the property.
Before parting the Court deemed it apposite to clarify that it did not treat the mother as the natural or legal guardian of the minor's property under Mahommedan Law. Rather, the authority to manage and alienate the minor's property was traceable to her appointment by the competent Court and from the conditional permission granted under the 1890 Act.
Counsel for the Appellants: Mr. T.K. Mishra, Advocate
Counsel for the Respondents: Mr. J. Pal & Mr. L. Senapati, Advocates; Mr. M.K. Dash, Addl. Standing Counsel