MEETHIYAN SIDHIQU versus MUHAMMED KUNJU PAREETH KUTTY AND ORS.

Citation: [1996] 1 S.C.R. 11 · Decided: 02-01-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Dismissed
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Judgment (excerpt)

'< 
MEETHIYAN SIDHIQU 
A 
v. 
MUHAMMED KUNJU PAREETH KUTTY AND ORS. 
JANUARY2, 1996 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
B 
Mohammadan Law: 
Legal Property Guardians of Muslim minor-After demise of father no 
property guardian appointed-Hence mother not guardian for alienation of c 
the property of minor-Therefore sale made by mother void. 
Jmambandi v. Mussaddi, (1918) 45 I.A. 73 & Venkama Naidu v. S. V. 
Chistry, AIR (1951) Mad. 399, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1663 of 1996. D 
~ 
From the Judgment and Order dated 8.9.86 of the Kerala High Court in 
S.A. No. 296 of 1982. 
E.M. S. Anam for the Appellant. 
N: Sudhakaran for the Respondents 
E 
The following Order of the Court was delivered : 
Leave granted. 
Heard counsel on both sides. The facts are not in dispute. 
F 
This appeal by special leave arises from the judgment and decree of the 
Kerala High Court passed on September 9, 1986 in Second Appeal No. 296/ 
82. Admittedly, the appellant is a purchaser of the property from the !st re-
spondent who was a minor at that time and the property was sold through his 
mother as guardian. The question raised in this case is. whether the sale is 
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valid and whether the appellant has perfected his title. Admittedly, the sale 
was effected in 1949. The trial Court and the appellate Court upheld the right 
of the respondent but the High Court reversed the same and held that since the 
sale by the mother as a guardian was void in law, the appellant could not get 
valid title. Parties are co-owners of the properties. One co-owner cannot claim 
prescriptive right against another co-owner and in view of the fact that the H 
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12 
SUPREME COURT REPORTS 
[1996] 1 S.C.R. 
A 
plea was not raised that he asserted adverse title, disclaiming the right under 
the sale deed and that the respondent had acquisced to it, the plea of adverse 
possession was not sustainable in law. The High Court decreed the suit of the 
respondent. Thus this appeal by special leave. 
B 
c 
'D 
E 
Shri Anam, learned counsel for the appellant has contended that since 
the father Mohammad Kun ju died, the mother is the natural guardian and the 
sale made by her as guardian of the respondent, therefore, is not void. We find 
no force in the contention. 
Mulla's "principle of the Mohammadan Law'' [Ninteenth Edition] by 
Justice M. Hidayatullah, former Chief Justice of this Court and Arshad 
Hidayatullah, deals with legal property guardians of a muslim minor in Sec-
tion 359. In the order, only father, executor appointed by the father's will, 
father's father and the executor appointed by the will of the father's father, are 
legal guardians of property. No other relation is entitled to be the guardian of 
the property of a minor as of right; not even the motller, brother or uncle but 
the father or the paternal grand-father of the minor may appoint the mother, 
brother of uncle or any other person as his executor or executrix of his will in 
which case they become legal guardian and have all the powers of the legal 
guardian as defined in Sections 362 and 366 of the above Principles. The Court 
, may also appoint any one of them as guardian of the property of the minor in 
which case they will have all the powers of a guardian appointed by the court, 
as stated in Sections 363 to 367. 
In Section 360, it is stated that in default of th.e legal guardians men-
tioned in Section 359, the duty of appointing the guardian for the protection 
and preservation of the minor's property falls on the Judge as representing the 
F 
State. The Court may appoint any other person as guardian of the property of 
the minor. In so d~ing, the Court should be guided by all the powers in the 
circumstances to be for the welfare of the minor. The court may appoint mother 
as guardian of the property of the minor son in preference to his paternal un-
cle. The fact that the mother is a pardanashin lady is no objection to her ap-
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pointment. In Section 362, the legal guardian of the property of a minor has no 
power to sell the immovable property of the minor except in the cases (1) 
where he_ can obtain double its value; (2) where the minor has no other prop-
erty 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 
H 
the income of the property; (6) where the pro
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