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IN THE HIGH COURT OF ORISSA, CUTTACK

GUAP No.04 of 2024

CNR No.ODHC010157572024

(In the matter of an application under

Section 47(e) of the Guardians and Wards Act, 1890)

Shamina Naaz & another ....... Appellants

-Versus-

Rimsha Taashfeen & another ....... Respondents

Advocate for the parties

For Appellants : Mr. T.K. Mishra, Advocate

For Respondent No.1 : Mr. J. Pal, Advocate

Mr. L. Senapati, Advocate

For Respondent No.2 : Mr. M.K. Dash, ASC

----------------------------

CORAM: JUSTICE SANJAY KUMAR MISHRA

----------------------------------------------------------------------------------- ---

Date of Hearing: 12.08.2026 Dated of Judgment: 07.10.2026

---------------------------------------------------------------------------------------

S.K. Mishra, J.

1. This Appeal under Section 47 of the Guardians

and Wards Act, 1890 is directed against the Judgment

dated 20.10.2023 passed by the learned District Judge,

GUAP/4/2024

ODHC010157572024

2026:OHC:189

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Ganjam, Berhampur in Guardian Petition No.3 of 2023,

whereby the prayer of the Appellants for appointment of

Appellant No.1 as guardian of the property of minor

Appellant No.2 and for permission to alienate the minor's

interest in the property, described in the petition, came to

be rejected.

2. The brief facts leading to the filing of the

present Appeal are that, the husband of Appellant No.1

and father of Respondent No.1 and the minor, Appellant

No.2, Mohammed Mufazil, had purchased an immovable

property at Mouza Kalarahanga, Bhubaneswar,

measuring an area of Ac.0.127 decimal, under

Registered Sale Deed No.2094 dated 26.06.1993. The

property was thereafter recorded in his name under

Khatian No.725/2253, corresponding to Plot

No.1703/4942.

2.1. Mohammed Mufazil died on 22.05.2021. The

Respondent No.1 was born on 22.04.2004 and minor

Rida Alia was born on 27.04.2013. Appellant No.1, the

minor-Appellant No.2 and Respondent No.1 are residing

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at Berhampur under the care and custody of Appellant

No.1, after the death of Mohammed Mufazil. Thereafter,

the Revenue Officer-cum-Tahasildar, Berhampur issued

Legal Heir Certificate bearing No.ELHC/2021/187336

dated 26.12.2021 declaring Appellant No.1, Respondent

No.1 and the minor-Appellant No.2 as his legal heirs.

According to the Appellants, the minor-Appellant No.2

had an equal 1/3

rd share in the said property.

2.2. It is the case of the Appellants that after the

death of Mohammed Mufazil, Appellant No.1 was

maintaining the minor-Appellant No.2 and providing her

education. Appellant No.1, being a Pardanashin lady, had

no independent and sufficient income to provide proper

education, nourishment, food and shelter to the minor.

The minor was studying in Std. IV at St. Vincent Convent

School, Berhampur.

2.3. Appellant No.1, therefore, sought permission to

sell the minor's share in the property. The property is

valuable and is fetching a good price in the market. She

undertook to utilise the sale proceeds for the education,

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maintenance and betterment of the minor and to

purchase suitable land in the name of the minor near

their residence.

2.4. It is the case of the Appellants that, the

property is situated about 170 kilometres away from their

residence and that land brokers have kept their eye on

the property. There is no male member in the family to

look after the said property. Some prospective purchasers

approached Appellant No.1 with offers of a good price. On

approaching the Sub-Registrar, Khandagiri,

Bhubaneswar, she was advised to obtain permission from

the competent Court for sale of the minor's share.

2.5. Being so advised, the Appellants filed

Guardian Petition No.3 of 2023 under Sections 29 and 31

of the Guardians and Wards Act, 1890, shortly, „the

Act,1890‟, before the learned District Judge, Ganjam.

They sought appointment of Appellant No.1, Shamina

Naaz, as guardian of her minor daughter, Appellant No.2,

Rida Alia. They also sought permission to sell the minor‟s

share in the property situated at Mouza Kalarahanga,

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Bhubaneswar Tahasil, under Khata No.725/2253, Plot

No.1703/4942.

3. Respondent No.1 filed a Counter before the

Court below admitting the case of the Appellants and

supported the prayer for appointment of Appellant No.1

as the guardian of the minor and for permission to sell

the minor's share.

4. The learned Government Pleader, though

appeared for Respondent No.2, did not file any Counter

opposing to such prayer. No other Objection was filed

despite publication of notice.

5. Appellant No.1 was examined as P.W.1 and

documents were marked as Exts.1 to 6 without any

objection. The Respondents did not adduce any oral or

documentary evidence.

6. The learned District Judge, Ganjam, by the

impugned judgment dated 20.10.2023 passed in

Guardian Petition No.3 of 2023, rejected the prayer of the

Appellants. Aggrieved thereby, the present Appeal has

been preferred, seeking permission to alienate the

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minor‟s share for her education, maintenance and

betterment.

7. The learned District Judge noticed that the

parties were Mohammedans. The Court, therefore,

considered the question of guardianship and alienation of

the minor‟s property under Mahomedan Law. The Court

examined whether Appellant No.1, being the mother of

the minor, could be appointed as guardian of the minor‟s

property and permitted to sell the minor‟s share.

7.1. The learned District Judge relied upon the

decision of the Supreme Court in Meethiyan Sidhiqu

vs. Muhammed Kunju Pareeth Kutty & Others ; AIR

1996 SC 1003 : (1996) 7 SCC 436. The Court referred to

Section 359 of Mulla‟s Principles of Mahomedan Law. It

was observed that the father, his executor, the paternal

grandfather and his executor are the legal guardians of

the property of a Muslim minor. No other relation,

including the mother, is the legal guardian of the minor‟s

property as of right.

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7.2. The learned Court below also referred to

Section 360 of Mulla‟s Principles of Mahomedan Law. It

was observed that, in the absence of a legal guardian, the

Court may appoint a guardian for the protection and

preservation of the minor‟s property. In doing so, the

Court has to be guided by the welfare of the minor. It was

also noticed that the mother may be appointed as

guardian of the minor‟s property in preference to the

paternal Uncle. She being a Pardanashin lady, it was also

held not to be an objection to such appointment.

7.3. The learned District Judge further referred to

Section 362 of Mulla‟s Principles of Mahomedan Law. It

was observed that a legal guardian cannot sell the

minor‟s immovable property except in the circumstances

stated therein. Such circumstances include the necessity

of sale for maintenance where the minor has no other

property, debts or legacies of the deceased, expenses

exceeding the income of the property, the property falling

into decay and absence of reasonable chance of

restitution of the property.

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7.4. On consideration of the aforesaid principles

and the evidence, the learned District Judge held that

Appellant No.1 failed to prove the essential requirements

for the relief sought. The Court noticed that Appellant

No.1 has proved the documents relating to the death of

her husband, purchase of the property and recording of

the property in his name. However, the Court found that

the same was not sufficient to establish the requirements

for granting the prayer. The Court, therefore, declined to

entertain the prayer of the Appellants (Petitioners before

the Court below). Consequently, vide the impugned

judgment dated 20.10.2023, the learned District Judge,

Ganjam, dismissed the Guardian Petition No.3 of 2023

on contest but without cost and disposed of the Guardian

Petition finally.

8. The Appellants have challenged the impugned

judgment basically on the ground that the learned

District Judge did not consider the welfare and interest of

the minor. It was contended by learned Counsel for the

Appellants that Appellant No.1, being the natural

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guardian of Appellant No.2, sought permission to sell the

minor‟s share for her education, maintenance and

betterment. It was further contended that Appellant No.1

has no independent income. Her husband, who was the

bread earner, died on 22.05.2021. The property is

situated at Kalarahanga, Bhubaneswar, about 170

kilometres from Ganjam. There is no male member in the

family to look after the property. It was also contended

that the property may be captured by land grabbers or

land brokers. It was argued that the sale consideration

would be utilised for the betterment of the minor.

8.1. It was further contended that the evidence of

Appellant No.1 as P.W.1 supported the case of the

Appellants. Her inability to state the market valuation of

the property in cross-examination was not fatal to the

application under Sections 29 and 31 of the Act, 1890.

Learned counsel for the Appellants also referred to

Section 39 under Chapter V and Chapter XVIII of Mulla‟s

Mahomedan Law, which deals with guardianship of

person and property, so also Section 7 of the Act, 1890,

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which deals with the power of the Court to make an order

as to guardianship. It was contended that, though the

mother is not the legal guardian of the minor‟s property,

she is a de facto guardian. Learned Counsel for the

Appellants further contend that the judgment of the Apex

Court, relied upon by the learned District Judge, Ganjam

is distinguishable. It was also contended that Exts.4 and

5 were not properly considered by the learned Court

below.

8.2. Though it was neither specifically pleaded

before the Court below nor before this Court, Mr. Mishra,

learned Counsel for the Appellants submitted that the

Appellants are Sunni Muslims. Referring to Sections 359,

360, 362 and 366 of Mulla‟s Principles of Mahomedan

Law, he further submitted that the said provisions govern

the guardianship and power of legal guardians for

alienation of the property of a minor. However, the

learned Court below failed to take note of the said

provisions, so also appreciate the minor's welfare and

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evident advantage, in terms of Section 31 of the Act,

1890, while passing the impugned judgment.

9. The material facts, which are either admitted

or remain uncontroverted on the record, are these:

Mohammed Mufazil, husband of Appellant No.1 and

father of the minor and Respondent No.1, purchased the

property at Mouza Kalarahanga, Bhubaneswar, by

Registered Sale Deed No.2094 dated 26.06.1993. He died

on 22.05.2021. The minor Rida Alia is presently under

the care and custody of her mother. The Legal Heir

Certificate dated 26.12.2021 has also been produced. The

Appellants asserted that the minor has an undivided one-

third share in the property.

9.1. The Appellants pleaded that Appellant No.1

has no independent and sufficient income, that the

deceased was the bread earner of the family, that the

property is situated at a considerable distance from their

residence, and that the income/resources presently

available are insufficient to meet the minor's educational,

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maintenance and other needs. It was further pleaded that

the consideration obtained from a sale would be applied

for the minor's education, maintenance and betterment

and, to the extent possible, invested in or utilised for

acquiring suitable property near the place of their

residence.

9.2. The record further shows that Respondent

No.1, the major daughter, supported the prayer; the State

did not file any Counter Affidavit opposing the

application; no other objection was received despite

publication; and the Appellants' evidence and Exts.1 to 6

remained unchallenged by any evidence adduced by the

Respondents.

9.3. The learned District Judge passed the

impugned order, basically, relying on the decision of the

Supreme Court in Meethiyan (supra). The learned Court

below, however, proceeded on the footing that the

Appellant No.1 has failed to prove the essential

ingredients, as detailed in Meethiyan (supra), while

rejecting the prayer for alienation.

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10. Points for determination:

(i) Whether the impugned judgment is

perverse, deserving interference?

(ii) Whether the Appellant No.1, who is the

natural mother of the Appellant No-2, can

be appointed as the guardian of the

minor's property by the Court?

(iii) Whether the statutory requirements for

permission to alienate the minor's

interest, for the minor's welfare and

evident advantage, in terms of Section 31

of the Act, 1890, are satisfied?

(iv) If so, what would be the extent of the

minor's share, which may be dealt with,

and what safeguards are necessary in the

said regard?

11. Point (i) & (ii) : Perversity and Appointment

of the mother as guardian of the minor's property

under Mahomedan law:

The mother is not a legal guardian of the

minor's property as of right. In Imambandi vs.

Mutsaddi and Meethiyan Sidhiqu , AIR 1918 PC 11, it

was held that an unauthorised mother or other de facto

guardian cannot, merely, by assuming control over the

minor's property, convey the minor's immovable property

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so as to bind the minor. The learned Court below was

therefore correct only to this limited extent.

11.1. 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. Section 7 of the Act, 1890,

independently and expressly, empowers the competent

Court to appoint a guardian of the minor's property,

when such appointment is for the welfare of the minor.

Section 17 of the Act, 1890 further directs the Court to

be guided by the welfare of the minor, while considering

the proposed guardian's character, capacity, nearness of

kin and existing relationship with the minor and her

property.

11.2. In the present case, the father has died. No

Executor under his will or paternal grandfather acting as

the legal guardian of the property has been shown.

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Appellant No.1 is the mother, the person in whose care

and custody the minor admittedly remains, and the

person, who has been maintaining and educating her

since the death of the father. Respondent No.1, who is

the major daughter of the Appellant No.1, has expressly

supported the application. The State has filed no Counter

opposing the case. There is no material before this Court

suggesting that the proposed guardian has any adverse

interest in the minor's property or that her appointment

would be contrary to the minor's welfare. On the

contrary, the uncontroverted circumstances appearing

from the record satisfy the welfare-oriented

considerations under Sections 7 and 17 of the Act, 1890.

11.3. Hence, this Court is of the view that, the

Appellant No.1 mother does not become the legal

guardian of the minor's property (Appellant No.2) by

status alone. However, she is not disqualified from being

appointed by the competent Court as guardian of the

minor's property, when the statutory welfare

requirements are satisfied. Once appointed by the Court,

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her powers are controlled by the Act, 1890, in particular,

Sections 29 and 31 thereof. Point Nos.(i) & (ii) are

answered accordingly.

12. Point (iii): Whether the statutory

requirements for permission to alienate the minor's

interest, for the minor's welfare and evident

advantage, in terms of Section 31 of the Act, 1890,

were established before the Court below?

Section 29 of the Act, 1890 places the

immovable property of the ward under judicial control by

prohibiting transfer without previous permission of the

Court. Section 31 of the Act, 1890 then provides the

substantive test; permission may be granted in a case of

necessity or for an evident advantage to the ward. The

enquiry is therefore not whether the mother is a legal

guardian under personal law, but whether the Court,

having appointed her, is satisfied on the material before it

that a controlled sale is justified for the minor's welfare

and evident advantage.

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12.1. The Supreme Court and High Courts have

repeatedly emphasised the protective character of this

jurisdiction. In Harikrishnan vs. Sri Chanda Prabhuji

Jain Temple, reported in AIR 1962 Mad 267, it was

explained that the Court exercises a protective and

administrative jurisdiction over the ward and that the

enquiry under Section 31 of the Act, 1890 is directed to

necessity or evident advantage. In Smt. Sakshi Devi v.

State of NCT of Delhi, reported in 2014 SCC OnLine Del

2740, upkeep and maintenance of the minor as a legal

necessity was recognized and permission was accorded

for sale of the minor's undivided share, subject to

safeguards. These authorities are not Muslim-law

authorities as to who is the legal guardian, but they are

relevant to the statutory meaning and operation of

Sections 29 and 31 of the Act, 1890.

12.2. The present facts disclose more than a bare

desire to liquidate the minor's property. The father, who

was stated to be the bread earner, is no longer alive; the

mother states that she has no independent and sufficient

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income; the minor is of school-going age; the property is

situated at a substantial distance from the family's place

of residence; and the mother proposes to apply the

consideration for education, maintenance and

acquisition/investment of property for the minor. The

major daughter supports the application and there is no

opposing evidence. The cumulative circumstances,

viewed in the protective framework of Section 31 of the

Act, 1890, establish a case of necessity and, at the least,

an evident advantage to the ward.

12.3. The fact that the mother could not state the

precise market value in cross-examination cannot, by

itself, be treated as conclusive against the minor. The

statutory scheme itself supplies the answer. The Court

can protect the minor by obtaining an independent

valuation and by making the permission conditional

upon the property not being sold below the value so

ascertained and upon preservation/investment of the

minor's proceeds. The absence of an exact valuation in

the oral testimony is therefore a matter requiring a

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safeguard, not a reason to reject the application

altogether.

12.4. The apprehension stated by the Appellants

that the distant property may be exposed to neglect or

interference should not be treated as a proved allegation

of land grabbing unless supported by material.

Nevertheless, the distance of the property and the

absence of a person presently available to supervise it are

relevant practical circumstances when considered

together with the admitted need to secure the minor's

education, maintenance and future interests. Hence, this

Court is of the view that, while dealing with such kind of

issues, the learned Court below ought to have based the

order principally on the proved financial and welfare

circumstances, while treating the remaining

apprehensions with due caution. Point No.(iii) is

answered accordingly in favour of the Appellants.

13. Point (iv): Extent of share and safeguards:

So far as share of minor daughter-Appellant

No.2, before dealing with the said issue, it would be apt

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to mention here that the property (both movable as well

as immovable) left by a deceased Muslim is called

“Matruka”, as held in Jamil Ahmad Vs. Vth ADJ,

Moradabad, (2001) 8 SCC 599, in Trinity

Infraventures Ltd. Vs. M.S. Murthy, 2023 SCC OnLine

SC 738 and in Zoharbee & Another Vs. Imam Khan (D)

Thr. LRs. & Others, 2025 SCC OnLine SC 2252.

13.1. So far as the present lis is concerned, the

relevant principles under Mahomedan Law (updated 20th

Edition) are Section 41, Section 51, Section 56, Section

61, Section 63, Section 65 and Section 66.

13.2. Section 41 deals with the estate of deceased

Muslim which devolves upon his heirs at the moment of

his death and the heirs succeed as tenants-in-common in

specific shares. As per Section 51 , there is no distinction

in Muslim inheritance between movable and immovable

property or between ancestral and self-acquired property.

Section 56 mandates that “vested inheritance” is the

share which vests in an heir at the moment of the

ancestor‟s death. If the heir dies before distribution, the

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share of inheritance, which has vested in him, will pass

to such person as are his heirs at the time of his death.

The shares, therefore, are to be determined at each

death.

13.3. So far as Sunni Law, in Section 61, heirs are

classified as “Sharers”, “Residuaries” and “Distant

Kindred”. The same is reproduced below for ready

reference.

“61. Classes of heirs: There are there classes

of heirs, namely, (1) Sharers, (2) Residuaries,

and (3) Distant Kindred:

(1) “Sharers” are those who are entitled to a

prescribed share of the inheritance;

(2) “Residuaries” are those who take no

prescribed share, but succeed to the “residue”

after the claims of the sharers are satisfied;

(3) “Distant Kindred” are all those relations

by blood who are neither Sharers nor

Residuaries.”

13.4. As to extent of share, Section 63 mandates

that , after funeral expenses, debts and legacies, the first

step is to identify the sharers and assign their prescribed

shares. Section 63, so also table of shares in Sunni Law,

being relevant, are reproduced below:

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“63. Sharers: After payment of funeral

expenses, debts, and legacies, the first step in

the distribution of the estate, of a deceased

Mahomedan is to ascertain which of the

surviving relations belong to the class of

sharers, and which again of these are entitled

to a share of the inheritance, and, after this is

done, to proceed to assign their respective

shares to such of the sharers as are, under

the circumstances of the case, entitled to

succeed to a share. The first column in the

accompanying table contains a list of

sharers; the second column specifies the

normal share of each sharer; the third

column specifies the conditions which

determine the right of each sharer to a

share, and the fourth column sets out the

shares as varied by special

circumstances.”

“TABLE OF SHARES-Sunni Law

(1)

Shares

(2)

Normal Share

(3) Conditions under which

the normal share is

inherited

(4)

This column sets out-

(A) Shares of Sharers Nos.3,

4,5,8 and 12 as varied by

special circumstances:

(B) Conditions under which

shares Nos.1, 2, 7, 8, 11 and

12 succeed as Residuaries.

of one of two or

more

collec-

tively(b)

1. FATHER 1/6

.. When there is a child or child

of a son h.l.s.

[When there is no child or child of a

son h.l.s., the father

inherits as a residuary: see

Tab. of Res., No.3]

2. TRUE

GRANDFATHER

[sec 62 cl.(a)]

1/6

.. When there is a child or child

of a son h.l.s. and no father or

nearer True grandfather

[When there is no child or child of a

son h.l.s., the Tr.G.F.

inherits as a residuary,

provided there is no father

or nearer Tr. G.F.: see Tab.

of Res., No.4]

3. HUSBAND 1/4

.. When there is a child or child

of a son h.l.s

1/2 when no child or child of a son

h.l.s.

4. WIFE 1/8 1/8 When there is a child or

child of a son h.l.s

1/4 when no child or child of a son

h.l.s.

5. MOTHER 1/6

.. (a) When there is a child or

child of a son h.l.s., or

(b) when there are two or

more brothers or sisters,

or even one brother and

one sister, whether full

consanguine or uterine.

1/3 when no child or child of a son

h.l.s. and not more than one

brother or sister (if any), but if

there is also a wife or husband

and the father, then only 1/3 of

what remains after deducting

the wife's or husband's share.

Page 23 of 31

6. TRUE

GRANDFATHER

[sec 62 cl.(a)]

1/6

1/6

A. Maternal - when no

mother and no nearer true

grandmother either

paternal or maternal.

B. Paternal - when no

mother, no father, no

nearer true grandmother

either paternal or

maternal, and no

intermediate true grand-

father.

7. DAUGHTER 1/2

2/3

When no son

[With the son she becomes a

residuary, see Tab, of Res.,

No. 1.]

8. SON’S

DAUFHTER h.l.s.

[sec 62. Cl. (f)

e.g.

1/2

2/3

When no (1) son, (2),

daughter, (3) higher

son's son, (4) higher

son's daughter. or (5)

equal son's son. (d)

When there is only one daughter, or

higher son’s daughter but no

(1) son, (2) higher son’s son,

or (3) equal son’s son, the

daughter or higher son’s

daughter will take ½ and the

son’s daughter h.1.s.

(whether one or more) will

take 1/6 i.e, 2/3 – ½ [With

an equal son’s son she

becomes a residuary; she

Tab. of Res., No.2].

(i) Son’s Daughter 1/2

2/3

When no (1) son, (2) daughter,

or (3) son's son.

When there is only one daughter,

the son's daughter (whether

one or more) will take 1/6, if

there be no son, or son's son.

[With the son's. son she

becomes a residuary: see

Tab. of Res., No. 2.]

(ii) Son’s Son’s

Daughter

1/2

2/3

When no (1) son, (2) daughter,

(3) son's son, (4) son's

daughter, or (5) son's

son's.

When there is only one daughter or

son's daughter, the son’s

son’s daughter (whether one

or more) will take 1/6, if

there be no (1) son, (2) son’s

son or (3) son’s son’s son.

[With the son's son’s son she

becomes residuary: see Tab.

of Res., No. 2.]

9. UTERINE

BROTHER

10. or SISTER

1/6

1/3

When no (1) child, (2) child of

a son h.l.s, (3) father of

(4) true grandfather.

11. FULL SISTER 1/2

2/3

When no (1) child, (2) child of

a son h.l.s., (3) father (4)

true grandfather, or (5)

full brother.

[With the full brother she becomes a

residuary: see Tab. of Res.,

No.5.]

Page 24 of 31

12. CONSANGUINE

SISTER

1/2

2/3

When no (1) child, (2) child of

a son h.l.s., (3) father,

(4) true grandfather, (5)

full brother, (6) full

sister, or (7)

consanguine brother.

But if there is only one full sister

and she succeeds as a sharer,

the consanguine sister

(whether one or more) will take

1/6, provided she is not

otherwise excluded from

inheritance. [With the

consanguine brother she

becomes a residuary: see Tab.

of Res., No. 7.]

(b) The collective share is always divided equally among those to whom it is allotted.

(c) A Mahomedan can have as many as four wives at a time.

(d) If there be son’s son and son’s son’s daughter, the former is a higher son’s son in relation to

the latter. If there be a son’s son and son’s daughter the former is a lower son’s son in

relation to the latter. And if there be a son’s son and son’s daughter or a son’s son’s

daughter, the former is in equal son’s son in relation to the latter, both being equally removed

from the deceased.”

(Emphasis supplied)

13.5. Section 65 mandates, after satisfaction of the

Sharers, any residue ordinarily devolves upon the

Residuaries in the prescribed order. Section 66

commands that where there is a residue after satisfying

the Sharers but there is no Residuary, the residue to the

Sharers in proportion to their shares, i.e., “Return” or

“Radd”. The husband and wife do not take Return so long

as there is another heir.

13.6. The legal heir certificate establishes the stated

relationship of the heirs, but it should not be treated by

itself as a conclusive adjudication of the fractional shares

under Mahomedan Succession Law. The permission shall

therefore operate only in respect of the minor's lawful

Page 25 of 31

undivided share, as established from the succession/title

material on record.

13.7. In the instant case, on the stated facts as

detailed above, pertaining to the suit property, no other

objection was filed despite publication of notice, opposing

to such prayer, or disputing the share of the legal heirs.

Hence, as per the materials on record, the widow

(Appellant No.1) would be entitled to 1/8

th share. The two

daughters, including the Appellant No.2, together

therefore take 7/8

th of the estate of the deceased father.

The reason is that the widow first takes her fixed Qur‟an

share of 1/8

th

,

because the deceased left children. The

two daughters together take their fixed share of 2/3

rd

because there is no son. The fixed shares therefore total

19/24

th

,

leaving 5/24

th as residue. Since, on the assumed

facts, there is no residuary heir, the doctrine of Return

(Radd) applies. The widow does not participate in “Radd”

while another heir exists; the 5/24

th residue therefore

return to the two daughters in proportion to their shares.

Page 26 of 31

Their aggregate entitlement consequently becomes 7/8

th,

divided equally between them, i.e., 7/16

th each.

13.8. As to safeguards of the share of the minor in

the property, Section 31(2) and (3) of the Guardians and

Wards Act, 1890 expressly permit the Court to attach

conditions. Having regard to the protective purpose of the

Act,1890 and the fact that the proposed guardian is also

the beneficiary's mother, it would be appropriate to

impose the following safeguards: (a) an up-to-date

independent valuation of the property by the competent

revenue/valuation authority shall be obtained; (b) the

minor's share shall not be sold below the verified market

value attributable to that share, subject to any higher

price obtained; (c) the sale shall be effected only after

prior permission/confirmation in the manner directed by

the guardianship Court; (d) the mother shall furnish the

bond and surety required by Section 34; (e) the entire net

sale consideration attributable to the minor shall be

deposited in a fixed deposit or other Court-approved

secure investment in the minor's name under the

Page 27 of 31

guardianship of Appellant No.1, except such portion as

the Court, on a specific application, permits to be used

for the minor's education, maintenance or other

demonstrable welfare need; and (f) the guardian shall file

the sale deed, proof of receipt of consideration and an

account statement before the guardianship Court within

a fixed period. Point No.(iv) is answered accordingly.

Result

14. On a cumulative consideration of the

pleadings, the uncontroverted evidence, the statutory

Scheme and the authorities referred to above, this Court

is satisfied that the approach of the learned Court below

was too narrow to reject the application without

examining whether she ought to be appointed by the

Court as guardian and whether a controlled sale would

amount to necessity or evident advantage to the minor.

15. The impugned judgment dated 20.10.2023

passed in Guardian Petition No.3 of 2023 is therefore set

aside. The Appeal is allowed and stands disposed of.

Page 28 of 31

16. Appellant No.1, Shamina Naaz, is appointed as

guardian of the property of minor Appellant No.2, Rida

Alia, for the limited purposes of protection, management

and the transaction authorised by this judgment

pertaining to the property, which was the subject matter

in Guardian Petition No.3 of 2023, subject to the

Guardians and Wards Act, 1890 and the following

conditions:-

(i) The minor's exact lawful undivided share, as

detailed above, shall first be verified from the

title and succession material. Permission shall

be extended only to that share and not to any

larger interest.

(ii) The learned guardianship Court shall obtain or

verify an independent current valuation of the

property. The minor's share shall not be sold

for less than the value attributable to that

share in the verified valuation, unless the

Court, for recorded reasons, approves a higher

or otherwise legally permissible price.

Page 29 of 31

(iii) The sale shall be effected only with prior

compliance before the learned guardianship

Court, including execution of the requisite

bond/surety and completion of such notice or

confirmation procedure as the Court considers

necessary.

(iv) The net consideration attributable to the minor

shall be deposited/invested in a secure fixed

deposit or other Court approved instrument in

the minor's name under the guardianship of

Appellant No.1. Withdrawal of the principal

shall require further order of the competent

Court, except to the extent expressly permitted

under this judgment or subsequent order by

the competent Court for the minor's

demonstrable education, maintenance, health,

residence or other welfare.

(v) Appellant No.1 shall submit to the learned

guardianship Court, within the period fixed by

that Court, preferably, within six weeks of

Page 30 of 31

receipt of the sale consideration, a certified

copy of the sale deed, proof of the sale

consideration actually received, the

deposit/investment receipt relating to the

minor's share and a statement of account.

(vi) The guardian shall act as a person of ordinary

prudence and shall not utilise the minor's

money for her personal purposes or for the

benefit of any third person.

(vii) The permission granted by this Judgment is

confined to the minor's lawful share and does

not enlarge the title of any other co-sharer.

17. It is clarified that this Court has not treated

the mother as the natural or legal guardian of the minor's

property under Mahomedan Law. The authority to

manage and alienate the minor's property flows from her

appointment by the competent Court and from the

conditional permission granted under the Guardians and

Wards Act, 1890.

Page 31 of 31

18. The learned guardianship Court shall issue the

necessary guardianship certificate/order and take

consequential steps for valuation, bond/surety, deposit of

sale proceeds and accounting in accordance with law, as

detailed above.

19. This Court is hopeful that the Appellant No.1

shall cooperate with the learned guardianship Court, who

shall do the needful at the earliest, as directed/observed

above.

20. Office is directed to send a copy of this

Judgment urgently to the learned Court below for

information and necessary action, as detailed above.

…….……………………

S.K. MISHRA, J.

Orissa High Court, Cuttack.

Dated, the 7

th

October, 2026 /Prasant