The Orissa High Court has held that a Muslim mother, though not automatically recognised as the legal guardian of her minor child’s property under Muslim personal law, can be appointed as guardian by a competent court under the Guardians and Wards Act, 1890, if the appointment serves the child’s welfare.
The court also ruled that permission to sell a minor’s share in immovable property can be granted if the sale is necessary or offers an evident advantage to the child.
Justice Sanjay Kumar Mishra made the observations while allowing an appeal filed by a mother and her minor daughter after a District Court rejected the mother’s request for permission to sell the child’s share in a property.
The High Court clarified that the mother’s authority to manage and sell the minor’s property would arise from her appointment by the court and the conditional permission granted under the law, not from her status as the mother alone.
Mother Sought Permission to Sell Minor’s Property
The case concerned a property in Bhubaneswar purchased by the minor’s father before his death in 2021.
After his death, the mother was living in Berhampur with her two daughters, including the minor and her elder sister.
The father had been providing for the minor’s education and maintenance. Following his death, the mother said she had no independent or sufficient income to meet the child’s expenses, including education, food, nourishment and shelter.
Describing herself as a Pardanashin woman, she approached the court seeking permission to sell the minor’s share in the property to meet her needs and secure her future.
The District Judge in Ganjam rejected her application, prompting the appeal before the High Court.
Court Says Welfare of Child Is Paramount
The High Court examined whether a Muslim mother could be appointed guardian of a minor’s property and, if appointed, whether she could be permitted to sell it.
Referring to Section 360 of Mulla’s Principles of Mahomedan Law, the court noted that in the absence of the legal guardians recognised under Muslim law, a court can appoint a guardian to protect and preserve a minor’s property.
Section 7 of the Guardians and Wards Act empowers courts to appoint guardians when such an appointment is necessary for the minor’s welfare. Section 17 requires courts to consider factors such as the proposed guardian’s character, capacity, relationship with the child and proximity of kinship.
The court noted that the minor’s father had died and no executor under his will or paternal grandfather acting as legal guardian of the property had been shown to exist.
The mother, meanwhile, had the child’s care and custody and had been maintaining and educating her since the father’s death.
The bench held that the mother was not disqualified from being appointed guardian merely because Muslim personal law did not recognise her as the legal guardian of the child’s property by status alone.
Sale Allowed With Safeguards
The court found that the request involved more than a mere desire to sell the property.
It took into account the father’s death, the mother’s lack of sufficient income, the minor’s schooling, the property’s distance from the family’s residence and the proposed use of the sale proceeds for the child’s education, maintenance and future investment.
The court also noted that the elder daughter supported the application and there was no opposing evidence.
It concluded that the circumstances established a case of necessity and, at the least, an evident advantage to the minor under Section 31 of the 1890 Act.
The High Court accordingly allowed a controlled sale of the minor’s share, with safeguards under Section 31(2) and (3), including a direction that the entire net sale consideration be deposited in a fixed deposit.
The court stressed that the safeguards must be strictly followed.
