NAYYER ZAHOOR Versus PUBLIC AT LARGE
SARDAR LIAQAT HUSSAIN, J.--- The captioned appeal has been filed against the decision dated 02.09.2024 recorded by Guardian Judge Family Court Muzaffarabad, whereby, the application for order regarding transfer of inheritance land through registry Mutation No. 2489 Survey No. 686 situated at new Mohallah Ward No.12 Tehsil and District Muzaffarabad.
Ex-parte arguments heard. Record perused.
A perusal of the record postulates that earlier Nayyar Zahoor widow of Sh. Zahoor Ahmed filed an application for guardianship of minors before Additional District Judge empowered as Guardian Judge Muzaffarabad on 06.08.2019. The learned Court below after necessary proceeding accepted the application and Nayyar Zahoor was appointed as guardian of the minors vide its decision dated 02.09.2019. Thereafter, Nayyar Zahoor along with minors filed an application for order regarding transfer of land mutation No.2489 survey No.686 situated at new Mohallah Ward No.12 Tehsil and District Muzaffarabad. In para No.6 of application, applicant submitted that applicant is not well and she has also no source of income and the expenses of minors are more than one lac. It is also submited in para No.7 of application that inherent land mutation No.2489 measuring 5 marlas 5 sarsai, which is in possession of applicant as well as minors, hence, applicant wants to sell the land just to fulfill the needs of minors. Learned Court below heard the arguments of applicant and rejected the same vide order dated 09.09.2024.
Sections 27 to 29 of the Guardians and Wards Act, 1890 deals with the matter. For ready reference, it deems appropriate to reproduce the said sections, which are as under:
27. Duties of Guardian of Property: --- A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own and, subject to the provisions of this chapter, he may do all acts which are reasonable and proper or the realization, protection or benefit of the property.
28. Powers of testamentary guardian: --- Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immoveable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.
29. Limitation of powers of guardian of property appointed or declared by the Court: --- Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court: a. mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immoveable property of his ward or b. lease any part of that property for a term exceeding five years of for any term extending more than one year beyond the date on which the ward will cease to be a minor.
It is also important to reproduce section 362 of Principles of Muhammadan Law by D.F. Mulla's, which is as under:
362. Alienation of immovable property by legal guardian. --- A legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely,
1. Where he can obtain double its value,
2. Where the minor has no other property 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 pay them,
5. Where the expenses exceed the income of the property,
6. Where the property is falling into decay, and
7. When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution".
From bare perusal of above mentioned sections of Guardians and Wards Act, 1890 as well as under para No.362 of Principles of Muhammadan Law clearly postulates that guardian has an authority to sell the property for fulfilment of necessities of minors or it is necessary to do so for the maintenance of minors. In the application, applicant categorically stated that monthly expenses of minors are more than one lac and she has no source of income thus, for giving better future it is necessary to sale the property.
Every contract entered into by a near guardian on behalf and for the benefit of the minor, and every contract entered into by a minor with the advice and consent of his hear guardian as far as regards his personal property, is valid and binding upon him provided there be no circumvention or fraud on the face of it. The underlying by legal guardian would be the rule of absolute necessity and benefit. An example which readily came to my mind that which supports the above conclusion was the ailment of mother/ guardian and daily expenditure which could be met out of the sale of their immovable property only. In case of absolute necessity of or clear benefit to the minors, a legal guardian can alienate immovable property belonging to him/her. In my opinion, the enumerated instances are illustrative of a basic rule of absolute necessity and benefit of the minor.
It deems appropriate the mentioned here that parents built property, bank balance etc. for giving better lives to their child. In my view, if the question of maintenance of minor occurs, then whatever, parents earns would spend for fulfillment of necessities of minor/ child, hence, the Court below committed grave error while dealing with the matter and also not considered that guardian wants to sale the property just to fulfillments of needs of minors.
For the foregoing reasons, I accept this appeal and the order dated 09.09.2024 recorded by Guardian Judge Family Court Muzaffarabad is hereby set aside and guardian is at liberty to sell the property of minors.
MQ/29/AJK-HC Appeal allowed.