The Orissa High Court has held that a Muslim mother can be appointed as the guardian of her minor child's property under the Guardians and Wards Act, 1890, even though she is not automatically recognised as the legal guardian of the property under Muslim personal law. Justice Sanjay Kumar Mishra allowed an appeal against the rejection of a mother's application seeking permission to sell her minor daughter's share in an immovable property for her education, maintenance and welfare.
Background
In Shamina Naaz & Another v. Rimsha Taashfeen & Another, the minor girl's father, Mohammed Mufazil, had purchased land at Kalarahanga in Bhubaneswar in 1993. After his death in May 2021, his widow, Shamina Naaz, continued to look after their minor daughter and her education.
The mother claimed that she had no independent and sufficient income to meet the child's needs. Since the property was situated approximately 170 kilometres from their residence, she sought permission to sell the minor's share and use the proceeds for her daughter's education, maintenance and future security.
The District Judge, Ganjam, rejected the application in October 2023. The mother subsequently approached the High Court. Her elder daughter supported the request, and no opposing evidence was presented by the respondents.
The High Court clarified that a mother's inability to act as the legal guardian of a minor's property under Muslim personal law does not prevent a competent court from appointing her as guardian under the Guardians and Wards Act.
The Court observed:
"The conclusion, however, does not answer the separate statutory question which arises in the present case. Section 360 of Mulla's Principles of Mahomedan Law recognises that, in default of the legal guardians mentioned in Section 359, the Court is to appoint a guardian for the protection and preservation of the minor's property."
The Court also examined Section 31 of the Act, which permits the sale of a minor's immovable property when necessary or when the transaction offers an evident advantage to the child.
Considering the father's death, the mother's financial circumstances, the child's educational needs and the property's distance from their residence, the Court found sufficient grounds to permit a controlled sale.
It further emphasised:
"The absence of an exact valuation in the oral testimony is therefore a matter requiring a safeguard, not a reason to reject the application altogether."
The High Court set aside the District Judge's judgment and allowed the appeal. It appointed Shamina Naaz as guardian of her minor daughter's property for limited purposes and permitted the sale of the minor's lawful undivided share, subject to court supervision.
The Court directed that the property undergo an independent valuation and that the minor's share not be sold below its verified value without legally permissible approval. The sale proceeds attributable to the minor must be securely invested in her name, with withdrawals of the principal requiring further court permission, except as expressly authorised.
The guardian must also submit the sale deed, proof of consideration and investment records to the guardianship court.
Case Details
Case Title: Shamina Naaz & Another v. Rimsha Taashfeen & Another
Case Number: GUAP No. 04 of 2024
Judge: Justice Sanjay Kumar Mishra
Decision Date: 7 October 2026
