Imambandi And Others Vs Haji Mutsaddi And Others: The Father Is Considered To Be The Sole And Supreme Guardian Of His Minor Child


Court :

Brief :
It was held by the council that the mother had no power to alienate the property for she wasn't the legal guardian. Ameer Ali in delivering the judgment of the Board laid down that the mother in Muslim law is merely entitled to the custody of a minor and isn't the natural guardian. The father is the sole and supreme legal guardian.

Citation :
Privy council Appeal No.73 of 1914

Bench:
Lord Shaw, Justice Sir John Edge, Justice Ameer Ali, Justice Walter Phillimore, Justice Bart, and Justice Lawrence Jenkins

Appellant:
Imambandi

Respondent:
Sheikh Haji Mutsaddi

Issues

1. According to Muslim law how far a mother's dealings with her minor children's property were binding on the minors?

Facts of the Case

1. There was a property at issue before the Bombay high court which was claimed by three widows of a Muslim man who died intestate.

2. The petitioner claimed that she was the mother of the child and hence, the legal guardian and thus, was entitled to the share of the property belonging to the child.

3. The case deals with the concept of guardianship and division of property which is based on guardianship.

Appellant’s Contention

1. A declaration of the title and status of the appellants' vendors.

2. A decree in favor of the appellants for the possession of shares covered by the deed of sale.

Respondent’s Contention

1. The respondents denied, as they had done in the Revenue Courts, that Zohra was one of Ismail Ali Khan's married wives and that her children were his legitimate issue, and they further contended that the shares the plaintiffs claimed to recover did not pass under the sale.

2. The revenue courts had rejected the appellant's plea.

Judgment

It was held by the council that the mother had no power to alienate the property for she wasn't the legal guardian. Ameer Ali in delivering the judgment of the Board laid down that the mother in Muslim law is merely entitled to the custody of a minor and isn't the natural guardian. The father is the sole and supreme legal guardian.

Relevant Paragraphs

1. Paragraph 6: The Lordship opinionated on the grounds of Mohammedan law “a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a "de facto guardian,'' and has no authority to convey any other right or interest on the immovable property which the transferee can enforce against the infant; nor can such transferee. If it is let into possession of the property, refuse an action in ejectment on behalf of the minor child as a trespasser. If follows that, without a title, he cannot recover the possession of the property of who’s not equally entitled to it.

2. As observed that in the absence of the father under Sunni law the custody vests in his executor. If the father dies without appointing an executor or if the father is alive, the custody of his minor child devolves on their grandfather. Also, should he be dead, or have left an executor, it vests in him. In De-jure guardians, judges as representative sovereign devolve the duty of appointing the guardianship to protect and preserve the infant’s property. No person has the right or power to intrude with the minor’s property except for some specified purpose, nature which is clearly defined.

3. Paragraph 1: The question that was raised was that according to Mohammedan law, how far and under what circumstances a mother’s dealing with her infant’s property is binding on the child before the court. The decision was by no means uniform, and abandoned two different tendencies: one; a set of decisions implies to give such dealings a qualified force, and the other declares them altogether void and ineffective. In the former class of cases, the main test is to determine the validity of the particular transaction which benefits the minor: to admit the absence of authority or power on behalf of the mother to alienate or encumber the minor’s property.

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Preksha Goyal
on 14 May 2021
Published in Others
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