The Muslim law-givers and the jurists mostly talk of sale of minor’s property. They seldom talk of any other type of alienation. They make a distinction between movable and immovable property. The power of the guardian over movable property of the minor is wider than his powers over immovable property. The guardian is allowed to dispose of the minor’s immovable property only in exceptional cases. The Hedaya sets forth the reason for this distinction thus: ‘The ground of this is that the sale of movable property is a species of conservation, as articles of this description are liable to decay, and the price is much more easily preserved than the article itself.
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On the contrary, with respect to immovable property, it is in a state of conservation in its own nature, whence it is unlawful to sell it-unless, however, it is evident that it will otherwise perish or be lost, in which case the sale of it is allowed”.
The author of the Dur-ul-Muhtar says that the sale of immovable property is not valid as the chance of its being lost is extremely rare. It appears to be clear that sale of movable property is justified not for the necessity of the minor, but on the basis of its conservation.
Whenever, the guardian can sell movable property for an adequate consideration and invest the sale proceeds in a more profitable undertaking, the sale will be justified. Not merely this, the guardian is allowed to take all reasonable risks which are involved in the world of business in his handling of movable property.
The sale of movable property can be avoided by the minor on attaining majority only on the ground of fraud resulting in inadequacy of consideration, or when inadequacy of consideration is such as to cause serious loss or detriment to the minor, though there is no indication of fraud.
In such a case the transaction is voidable at the instance of the minor. On the other hand, if the transaction is entered into bona fide with due care and diligence, then the guardian are not responsible for any unforeseeable consequences adversely affecting the interest of the minor.
The powers of alienation of immovable property are limited. The Dur-ul-Muhtar lays down that it is lawful for the executor to sell immovable property if there is an imminent danger of its being lost, or to sell it, if it can get double of its value, or for the maintenance of minors, or for the discharge of debts of the testator, or for the payment of legacies which cannot be paid otherwise, or where the income of the property does not exceed the cost of its up-keep, or when it is in the hands of a powerful misappropriator or usurper (muta-ghallab).
The Dur-ul-Muhtar lays down that the father is legal guardian of his minor children has the same powers as the executor. The Muslim authorities appear to take the view that the father’s powers are not greater than the powers of the executor.
There is a difference of opinion among them whether the executor can sell the properties to himself. According to Abud Hanifa, he can; according to Mohammed, he cannot; and according to Abud Yusuf, he can only if the sale is to manifest advantage of the minor.
The consensus of the authorities is that the sale of a minor’s immovable property by his legal guardian is valid in the following cases:
(i) When the guardian can fetch the double of its value,
(ii) When the sale is to the manifest advantage of the minor,
(iii) When there are some general provisions in the Will, such as payment of legacies, which cannot be carried into effect, without the sale of the property,
(iv) When there are debts of the testator, and they cannot be liquidated, save by the sale of property,
(v) Where the income of the property is less than the cost of its up keep,
(vi) When it is imminent danger of being lost or destroyed by decay, etc,
(vii) Where the property is in the hands of an usurper and the guardian has reasonable belief that there is no chance of recovery, and
(viii) When the minor has no other property and the sale is absolutely necessary for his maintenance.
Numbers (ii) and (iv) above do not apply in the case of father and grandfather.
An improper alienation made by a legal guardian is not void, but only voidable, and the minor on attaining majority can avoid it.
The basis of the guardian’s power of alienation under Muslim law is the need or necessity of the minor. The Majma-ul-Anhar very aptly says that if such a power is not given, the life of the minor and his goods and chattels might run the risk of injury or destruction such as he may stand in immediate need of ailment, clothing or nursing; or he may own slaves or live stock, and food and fodder might be required for them immediately; such and like urgent and imperative needs might recur from time to time; in such cases the lawful guardian is permitted to incur debts or to raise money on the pledge of the minor’s property.
Where the guardian is permitted to sell the minor’s property, it is necessary that the sale must be for adequate consideration, i.e., for consideration usually current in transactions of similar kind, otherwise, the sale may be set aside.
The case law on the guardian’s power of alienation is consistent and clear. It has been held that the guardian can sell the minor’s property in cases of urgent necessity or for the benefit of the minor, or for maintenance of the minor, or for the conservation of the property. But where neither there is any need nor is the minor’s property in a bad shape, alienation will not be justified.
In Meethiyan v. Md. Kunju, the Supreme Court said that father as natural guardian has power to alienate minor’s property. In his absence the legal guardian is competent to do so. The sale of minor’s property by the mother, who is not a legal guardian nor was she appointed as such, is void.