Is a Muslim mother who is not her child’s property guardian by right barred from being appointed one? The Orissa High Court says no: a court can appoint her, though personal law does not make her the guardian as of right.
Cuttack: Setting aside a District Judge’s order that had refused a mother’s plea, the Orissa High Court has held that a Muslim mother, though not the legal guardian of a minor’s property as of right under Muslim law, can be appointed to that role by a competent court under the Guardians and Wards Act, 1890, where the appointment is required for the minor’s welfare and evident advantage [Shamina Naaz and Another v. Rimsha Taashfeen and Another].
The appeal under Section 47 of the 1890 Act (GUAP No. 04 of 2024) was heard on August 12, 2026 and allowed by Justice Sanjay Kumar Mishra in a judgment dated October 7, 2026.
Status under personal law is one thing, appointment by a court another
Drawing on a Kerala High Court ruling and the Privy Council authority cited in it, the Court accepted that Mahomedan law does not give the mother the status of guardian of the minor’s property. That, it held, does not stop a court from appointing her under Sections 7 and 17 of the 1890 Act, where the welfare of the minor is the governing test.
A separate question is whether the minor’s property may be alienated. That is governed by Sections 29 and 31 of the Act, which call for necessity or evident advantage to the minor. The trial court, the High Court held, went wrong by rejecting the petition without asking whether the mother could be appointed guardian and whether a controlled sale was necessary or of evident advantage.
A plot in Bhubaneswar and a refused plea
The property lies at Mouza Kalarahanga, Bhubaneswar, and was bought under a registered sale deed of 1993. After the father died on May 22, 2021, a legal heir certificate dated December 26, 2021 named three heirs: the widow, an elder daughter and a minor daughter.
The mother went to the District Judge, Ganjam (Berhampur), saying she had no independent income. She asked to be appointed guardian of the minor’s property and to be allowed to sell the minor’s share for the child’s education and maintenance. In Guardian Petition No. 3 of 2023, the District Judge rejected the plea by an order dated October 20, 2023, on the ground that the statutory requirements had not been proved. The mother then appealed. The elder daughter is the first respondent.
Working out who gets what
Applying Sunni law as stated in Mulla’s Principles of Mahomedan Law, the Court fixed the widow’s share at one-eighth. The two daughters take seven-eighths between them, which, after the doctrine of Return (Radd), is seven-sixteenths each.
Seven conditions attached to the guardianship
The order of October 20, 2023 is set aside and the appeal is allowed. Shamina Naaz, the mother, now stands appointed guardian of the minor’s property for the limited purposes stated in the judgment, on seven conditions. Among them are a verified valuation, no sale for less than the value attributable to the minor’s share, prior compliance before the guardianship court, a bond and surety under Section 34 of the Act, deposit of the net sale proceeds in a court-approved instrument, and filing of the sale deed and an account within about six weeks. The guardianship court has been asked to issue the necessary order and take consequential steps.
What the ruling clarifies
Who is a guardian by status under personal law and who a court may appoint under the 1890 Act are often run together. The judgment keeps them apart, so a Muslim mother who is not a natural guardian of property can still be appointed on the welfare test.
The Court also tied its permission to sell to protective conditions, so that the minor’s share is not sold cheaply and the proceeds remain under the court’s supervision.
Case Title: Shamina Naaz and Another v. Rimsha Taashfeen and Another [GUAP No. 04 of 2024]
Bench: Justice Sanjay Kumar Mishra, Orissa High Court
Date of Judgment: October 7, 2026
Appearances: Mr. T.K. Mishra for the appellants; Mr. J. Pal and Mr. L. Senapati for the first respondent; Mr. M.K. Dash, Additional Standing Counsel, for the second respondent