Bombay-high-court
Bombay-high-court

Mumbai: A Muslim mother cannot alienate the property of her son unless she is ‘certified’ to be the legal guardian under the Mahomedan law, the Bombay High Court ruled recently. The HC has held a mother is not a ‘natural’ guardian as per the Mulla principles and thus cannot sell or create any third party interests in a son’s property.

The significant ruling was pronounced by a single-judge bench of Justice Bharati Dangre, upholding the orders of a Kolhapur court, allowing a son to claim a share in his properties, which were sold by his mother.

As per the son’s claims, the property in question was purchased by his father in 1966. Since he was a minor, his father mentioned his mother’s name as a guardian to look after the property until the son attains majority. However, the father did not make the mother an ‘executor’ of the property, the son argued.

The son accordingly challenged the legality of the sale of his properties by the mother and sought his share in the same. Having considered the dispute, Justice Dangre referred to the Mahomedan laws pertaining to guardianship, which recognise guardians under four categories — natural or legal, testamentary, a guardian appointed by the court and a de facto guardian.

“The natural or legal guardian has a legal right to control and supervise the activities of a minor child. The father or the paternal grandfather is recognised as a natural guardian under all the schools prevailing under the Mahomedan law and in his absence, an executor appointed by him can act as a legal guardian,” Justice Dangre noted.

Bombay High CourtThe bench noted a testamentary guardian is appointed by Will while a de facto guardian is an authorised person, who has custody of a minor or his property and is a person holding no authority of guardianship, but under circumstances has taken the responsibility to act as a guardian of a minor.

“As per the Mulla Principles of Mahomedan Law (21st Edition), the mother is not a de jure (rightful) guardian and, therefore has no right to sell the interest of her minor children in immovable property. Such a transaction is not merely voidable but void,” Justice Dangre held.

“When mother, who merely finds a mention as a guardian while purchasing the property for the benefit of the minor, the sale deed would not confer the status of a legal guardian on the mother,” Justice Dangre added.

The bench referred to the Mahomedan laws, which recognises a mother or any other relation as a guardian only after being certified duly as per the Mulla principles.

“It is only if the mother is the executrix or a certified guardian under the Mahomedan law, all powers of de jure (rightful) guardian are conferred upon her. In the absence thereof, the transaction by her on behalf of the minors is void,” Justice Dangre ruled.

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