1. Definition of guardian.

The term 'guardian' is defined in the Guardians and Wards Act as "a person
having the care of the person a minor or of his property, or of both his person
and his property", and, no doubt, the individual who has by law the right and
duty of disposing of a boy or a girl in marriage may be said to have, for that
limited purpose, the care of his or her person. But there is no mention of
disposal in marriage in any part of the Act, and nothing to indicate that it was
intended to interfere with the rules of Muslim Law which assigns that function.
Under the name of jabr, it relates to relatives who are not necessarily those
entitled to the general care and custody (hiznat) of the ward's person (Wilson)..
The Quran. is the basis of the law relating to guardianship and, therefore, there
is very little room for differences between Sunni and Shia Schools.

(2) Meaning of Guardianship.

The term 'Guardianship' (Wilavat) connotes the guardianship of a minor.
Who is a minor?
A minor is one who has not attained the age of majority. Puberty and majority
are, in the Muslim Law, one and the same. Puberty is presumed to have been
attained on the completion of the fifteenth years. But now the Muslims are
governed by the Indian Majority Act, 1875, except in matters relating to
marriage, divorce and dower. The existing position regarding the age of
majority in such cases is given as below Fifteen years is the age of majority
for the purposes of marriage, dower and divorce. At or above this age, he or
she is free to do anything in the sphere of marriage dower and divorce.
According to Section 2 of the Child Marriage' Restraint Act, 1929 (as amended
in 1978), the minimum age for Marriage is 21 years for males and 18 years for
females.
Eighteen years is the age of majority in general. As regards other matters of
guardianship of person and property, a Muslim will be governed by the
Majority Act which prescribes 18 years as the age of majority. Thus, in cases of
wills, waqfs, etc., minority will terminate on the completion of 18 years.
Twenty-one years is the age of majority if the minor is under the Court of
Wards, or a guardian of him has been appointed by the Court.
Under Muslim Law, any person who has attained puberty is entitled to act in all
matters affecting his or her status or his or her property. But that law has been
materially altered by the Indian Majority Act, and the only matters in which a
Muslim is now entitled to act on attaining the age of fifteen years are
(1) marriage
(2) dower
(3) divorce
In all other matters, his minority continues until the completion of eighteen
years. Until then the Court has power to appoint a guardian of his person or of
property or both under the
Guardians and Wards Act in which case the age of minority is prolonged until
We minor has completed the age of twenty-one years.
The guardianship of the property of the minor under Muslim law may be
classified as follows:

(1) Legal (tie jure) or natural guardian.

(2) Guardian appointed by the Court (or certified guardian).
(3) De facto guardian.
 (1) LEGAL GUARDIAN.
The person entitled in the order mentioned below to the guardian of the property
of a minor are (i) the father

(ii) the executor appointed by the father's will

(iii) the father's father

(iv) the executor appointed by the will of the father's father.

Thus, mother, brother, uncle etc. are not entitled as of right to be the legal
guardians of the property of the minor. Of course, the father or father s father
may appoint any of them (mother, brother, uncle, etc.) or any other Person as
his executor or executrix and the latter shall hold as much power as the father or
father's father holds.
Except father and father's father, no other person, not even, the mother is legally
authorised to appoint, by will, any person as executor or executrix.
In Gulain Husani Kutubuddin Mailer v. Abdul Rashid Abdul Rajak, the
Supreme court of India has held that a mother of the minor cannot be appointed
as his guardian to accept gift on his behalf during the lifetime of minor's father.
In Amar Ahmad Khan v. Shamim Ahrnad Khan, the Jharkhand 'high. Court
has held that on the death of a Mohammadan his property immediately devolves
on his heirs separately to the extent of share they are entitled under personal
law. Thus immediately on death, each of- his heir becomes absolute owner of
property proportionate to his share. Thus, under Islamic Law, there is own no
concept of jointness of ownership of properties of a deceased Muslim.
Muslim heirs are independent owners of their specific shares and their liability
is also proportionate to the extent of their share in the estate. Under said
circumstances, one share-holder has no right, title and interest to alienate
property of another share-holder.
The Court further held that a mother is not a de jure guardian of her minor
children under Muslim Law and therefore has no right to sell interest of her
minor children in immovable property and such transaction is not merely
voidable but void.

Power of legal guardians regarding immovable property.

—
Under Muslim Law, a legal guardian of the property of a minor can sell the
immovable property of the minor, when the sale is necessary for the
maintenance and when the minor has no other property. The word
"maintenance" does not exclude other necessary expenses for mental and
physical well-being of a minor, acceding to the status in society of the family.
Thus, the expense of ordinary and reasonable education of a child form part of
his maintenance. In the present state of the society, which is rapidly advancing
in all directions education up to higher secondary stage cannot be said to be
extravagant. So as to be excluded from maintenance. Thus in the following
cases the legal guardian is authorised to deal with the minors’ property:

(1) When there are debts of the deceased, and no other means of paying
them;
(2) When the minor has no other means of livelihood and the sale is
absolutely necessary for his maintenance;
(3) When double the price of the property can be obtained by him;
(4) Where the expenses exceed the income of the property;
(5) When the property is falling into decay;
(6) When the property has been usurped and the guardian has reason to fear
that there is no chance of fair restitution;
(7) Where there are legacies to be paid, and no other means of paying them.
The guardian has no power to carry on business of his ward, especially it the
business is one which may involve the minor's estate in speculation or loss.
From the fact that minor member was held entitled to the benefits of the
business cannot be held to have been carried on, on his behalf in the Sense of
holding him liable for the debts of the business.
India, the Guardians and Wards Act, 1890 imposes on every guardian of
property the duty to deal with the minor's property as carefully as a man of
ordinary prudence would deal with it if it were his own and entitles every such
guardian to do all acts which are reasonable and proper for the realisation,
protection or benefit of the property. Section 28 of the aforesaid Act says
testarnentary guardian of property- cannot transfer the property against any
restriction in this behalf imposed by the will under which he functions. Section
30 of the above Act says that violation of these rules, will, in either case, make
the alienation voidable.

Relative rights of the heirs of a deceased person in the

property inherited by them.
In P. Narsimbhai v. Bai Bhabu, a widow was in possession of her two minor
children's property. She was required to pay certain loans of her deceased
husband. She, therefore, disposed of some of the property which also included
the shares of the minors. This transaction was challenged. She contested that
since the sale was effected for the purpose of paying off the dues under a decree
obtained against all the heirs, it could be binding on the two children also.
It was held by the Gujarat High Court that one of the Muslim co-heir's property
cannot be lawfully alienated his latter's share for any purpose whatsoever.
In Ahmadullah v. Hafizuddin Ahmed, the validity of the power of the guardian
to transfer his ward's property for the sake of his education was in question. The
Gauhati High Court held that in the present state of our society, which is rapidly
advancing in all directions, education upto the higher secondary stage cannot be
said to be extravagant so as to be excluded from
maintenance.

(2) Guardian appointed by the Court.

In absence of legal guardians, the duty of appointing a guardian for the
protection and preservation of the minor's property fall in the court. While
appointing a guardian the Court take into consideration the welfare of the minor
and, as such, may appoint another instead of paternal uncle, as the guardian of
the property of the minor. The Court also takes into consideration the will of the
father. If the mother is appointed the guardian, fact. That she is a pardanashin
lady will not be considered as an objection to the appointment. The Court must
pay due regard to the wishes of the minor's father and the interest and the
welfare of the minor, whatever that may be in a Particular case and a guardian
must be appointed with due regard to these considerations by the Court.
Without the previous permission and sanction of the Court a guardian of the
property appointed by the Court cannot

(1) Charge the immovable property of the minor

(2) Mortgage
(3) Transfer by sale
(4) Transfer by gift
(5) Exchange, and
 (6) Lease any part of the immovable property for a term exceeding 5 years or
for any term extending more than one year beyond the date with the ward
will cease to be a minor.

Thus, lie lease the immovable property even without the permission of the
Court
(1) for a term not exceeding 5 years, or
(2) for a term not extending more than one year beyond the date on which the
minor will cease to be a minor, whichever is shorter.
If such guardian alienates the minor's property in contravention of the
provisions, given above, such alienation will he voidable at the instance of th e
minor or any other person affected thereby. Permission for such alienation as
given above must not be granted by the Court except in the case of necessity
or for an evident advantage to the ward.

Powers of legal guardians regarding movable properties

Legal guardian
of the property of a minor has power to sell or pledge the goods and chattels
of the minor for the minor's imperative, necessities, such as, food, clothing
and
nursing and de facto guardian has similar rights. But guardian appointed by
the Court has larger powers. Such a guardian is bound to deal with the
property as carefully as the man of ordinary prudence would deal with it as if
it were his own.

Subsequent ratification binds minor. —

A guardian, appointed by the Court, executed a pronote on his own behalf and
also on behalf of the minor M, though it was not executed under necessity or
for his benefit. After attaining
the age of twenty-one years, M executed 'a mortgage-deed along with A, and
out of the consideration set apart a sum for a payment towards the pronote.
Is the minor liable? Yes! the minor is liable even though A did not execute it
under necessity, or for his benefit. The reason behind this is that the subsequent
ratification of the minor by setting apart a sum for the pronote after his age of
21 binds the minor.

(3) DE FACTO GUARDIANS.

A person who is neither legal guardian nor a guardian appointed by the Court
but has voluntarily placed himself in charge of the person and property of the
minor, is known as de facto guardian. A de facto guardian is a mere custodian
of the minor's person and property but has no right over either. He has no
responsibility towards the minor’s person or property or both but has no rights
in respect, thereof. Usually de facto guardians are relatives of the minor but
without right to be the guardian under Islamic law unless appointed by will or
by the court he is an official intermeddler with the minor’s property and has no
status or osition to alienate it without courts permission.
Legal guardians and guardians are appointed by the court are de jure guardian.
The mother, brother, uncle and all the relations other than the father and the
father’s father are defacto guardians unless they are appointed executors by the
will of the father or the father’s father or appointed guardians by the court.
 NO POWER TO ALIENATE IMMOVABLE
PROPERTY
The positon of de facto guardians is quite different from that of the legal
guardian and guardian appointed by the Court. He has no power or authority to
alienate the minor's property. An alienation of minor's immovable property
without the authority of the Court by a de facto guardian is absolutely void "
(a) He cannot refer any dispute regarding the immovable property of the Minor
to any arbitration;
(b) He cannot give consent on behalf of the minor so as to validate a bequest to
his co-heirs;
(c) He cannot enter into a contract of partnership or to allow the continuance of
the partnership business dissolved by the death of the minor's father;
(d) He cannot bind the minor by executing a bond in lieu of his father's debts;
(e) He cannot make agreements on minor's behalf for even purchase of
immovable property.
In Inambandis case, where one Zohra, a widow of one Ismail Ali Khan,
conveyed the shares of herself and her minor children, for Rs. 10,000 and the
sale was opposed in a suit by the two other widows and children, it was held
that a de facto guardian has no power to convey to another any right or Interest
in the property which the transferee can enforce against the infant; not can such
transferee, if let into possession of the property under such unauthorised
transfer, resist an action in ejectment as trespasser, on behalf of the infant.

Alienation, not only voidable but void.

A sale by a de facto guardian of the minor's immovable property without courts
permission is void and not merely voidable. The question of ratification by the
minor or attaining majority does not arise as the alienation is void in its
inception.
If a minor seeks to assail the legality and binding nature of the alienation made
by a de facto guardian, it is always open to him to avoid the contract as being
void. But when it is not challenged, it is not open to the third parties to impugn
the alienation.”

Mother, brother and uncle etc as de facto guardians.

—Under the Mohammedan law, mother is entitled to the custody of her minor
children to
Certain age according to the sex of child. But she is no natural guardian of his
dead, his executor of their property. The father alone or if he is dead, his
executor is the legal guardian. The mother has-no larger power to deal with her
child’s property than any outsider or non-relative. When the mother is the
father's executrix or certified guardian she has all the powers of a de jure
guardian, otherwise any deed made by her on the minor's behalf will be void ab
initio. Thus a deed of partition to which a Mohammedan minor is a party
represented by his mother as Lie facto guardian is void and not binding on the
minor irrespective of consideration that it benefit him or the arrangement was
followed for a long period. The same remark applies to brother, uncle and other
relation of the minor.
In a case where one Sultan Rowther died in February, 1957 and the plaintiffs
(respondents) being minors (also sons and daughters of the deceased) instituted
the present suit for a declaration that they are entitled to their hares in the suit
property since the sale deed executed by the defendant, (the widow of the
deceased and his major sons and daughters) was not binding on them, the Court
held that the mother was not de jure guardian under Muslim
Law and, therefore, had no right to sell the interest of her minor children in an
immovable property and such transaction is not merely voidable but totally
void. Therefore, the plaintiffs were entitled to a decree for partition and
separate possession of their share.
In Mohammed Amin v. Vakil Alimad, the Supreme Court has held that a de
facto guardian has no authority to enter into a family settlement in respect of a
minor's benefit, even though the settlement might be for his benefit.

Testamentary guardianship in property.

Quran specifically provides for the appointment of a testamentary guardian.
Father and father's father are competent persons to he appointed by will a
guardian of the property of their
minor sons and grandsons respectively. Under Shia law, the testamentary
guardian or executor must be major, sane, professor of Islam and of good
character. It is, however, not clear whether in the presence of grandfather, the
father
possess the capacity to appoint a testamentary guardian. In Mst. Atkin Begum
v. Muhammad it was held that in the presence of grandfather, the father has no
right to appoint a guardian.