Muslim Father Can Act As Legal Guardian Of Minor Daughter To Alienate Immovable Property: Kerala HC [Read Judgment]

Referring to tenets of Muhammedan law, the Kerala High Court has ruled that Muslim father can act as the legal guardian of his minor daughter so as to alienate immovable property. The ruling was given by dismissing the appeal suit of a Muslim daughter who had sought for partition of property, ignoring the alienation effected by her father in capacity of her legal guardian.

The subject-property was initially purchased on behalf of the daughter and her siblings by their father as the legal guardian. Later, the father executed a sale deed by acting as the legal guardian of the daughter in order to alienate her share in the property in her favour of her brother.

The daughter filed suit for partition, claiming her share on ground that the alienation effected by her father on her behalf was invalid. The suit was filed almost 28 years after the daughter became a major.

The division bench of Justice V Chitambaresh and Justice Satish Ninan made extensive reference to the ‘Principles of Muhammedan Law’ as codified by M Hidayattullah and Arshad Hidayattullah. It was noted that the following persons were entitled in the order mentioned below to be guardians of the property of a minor as per Section 359 of Muhammedan Law:

1. The father;


2. The executor appointed by the father's Will;


3.  The father's father;


4. The executor appointed by the Will of the father's father.

Hence, the father was entitled to act as legal guardian of the daughter, as per Section 359.  It was also noted that a legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases as per Section 362 of the Muhammedan Law:

1. Where he can obtain double its value;


2. Where the minor has no other property and the sale is necessary for his maintenance;


3.  Where there are debts of the deceased and no other means of paying them;


4. Where there are legacies to be paid and no other means of paying them;


5. Where the expenses exceed the income of the property;


6. Where the property is falling into decay; and


7. When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution.

On the basis of evidence on record, the court reached the conclusion that none of the contingencies existed in the case so as to enable the father to alienate minor’s property. However, the court further held that such alienation, without satisfying any of the conditions under Section 362, will not be void. Such a transaction in breach of Section 362 will only be a transaction which is voidable at the instance of the minor, as per Section 363. Therefore, the court held that the transaction cannot be simply ignored, as it was not a void transaction. Therefore, suit for setting aside the deed had to be filed within 3 years of attaining majority of the daughter, as per Article 60 of the Limitation Act, and not having done so, the court found the suit liable to be dismissed.

Read the Judgment Here