Islamic Personal Law (Questions Paper)

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Islamic Personal Law (Paper) 

Note: Answer three questions from part-I and one question from part-II. Question No.1 is compulsory. All the questions carry equal marks.

Q # 1: Explain any four of the following:

1)       Shia Schools (A03)                                                                        30)          Sunni Schools (S03)

2)       Ahl-al-Raij (A03)                                                                           31)          Distant Kindred (A03-A04)

3)       Specified Dower (A03)                                                                 32)          Talaq (A06)

4)       Zihaar (A03-A05)                                                                          33)          Talaq a Badai (A05)

5)       Talaq-e-Masnoona  (A03)                                                           34)          Talaq-e-Ashan

6)       Talaq-e-Hassan (S03)                                                                   35)          Talaq-e-Slasah (A04)

7)       Khayar I Balugh (A06)                                                                 36)          Mubarat (A04)

8)       Difference between “Khula” and “Mubarat” (S07)            37)          Khula  (S03-A04-S05)

9)       Irregular Marriage (S03)                                                                              38)          Muta marriage (A04-A05-A08)

10)   Effect of apostasy on marriage (A07)                                      39)          Void Marriage (A03-A04-A08)     

11)   Iddat  (S03-A04-S04-A05-A07)

12)   Maintenance /maintenance of wife (A03-A04-S04-A07)

13)   Option of puberty (A03-A04-S05)                                            40)          Parentage (A03-A05)

14)   Shahadat Ala-al-Shahahdah (A03)                                         41)          Sharers (S03-S04-S05)

15)   Residuaries (S03-S04-A05)                                                         42)          Proper dower (S04-S05)

16)   Deferred Dower (S03-S04-S05-A08)

17)   Suit for dower and limitation (A07)

18)   Will (S04)                                                                                         43)          Death illness (A06)

19)   Musha (A03-A04-A06-A08)                                                       44)          Death Bed Gift (S03)

20)   Conditional gift (A04)                                                                  45)          Contingent gift (S04)

21)   Gift in future (S04)                                                                        46)          Waqf ala-al-aulad (S03)

22)   Paternity (S03)

23)   Essentials of acknowledgement of paternity (A07)

24)   Legitimacy (S03)                                                                            47)          Custody of child (S04)

25)   Defacto guardian (S04-S05-S07)                                                               48)          Mutawalli (S04-S07)

26)   Imprecation Lohan (A04)                                                           49)          Quran as source of law (A06)

27)   Minor (A06)

28)   Effect of Acknowledgement (S07)

29)   Arbitration counsel (A08)

 

Part-I

Q#1:       A Muslim dies having behind father, mother, daughter, 2 son’s daughters. Distribute the estate of the deceased according to Hanafi law of inheritance. (A03)

Q#2:       A Muslim dies leaving behind father, mother, two brothers, and one sister, distribute the estate of the deceased according to the Hanafi law of inheritance? (S03)

Q#3:       A Muslim dies leaving behind one widow, one daughter and one brother distribute the estate of the deceased according to the Hanafi law of inheritance? (A04)

Q#4:       A muslim dies leaving behind widow, mother, father’s father, distribute the estate of the deceased according to the Hanafi law of inheritance? (S04)

Q#5:       A Muslim dies leaving behind husband, mother and father‘s father; distribute the estate of the deceased according to the Hanfi law of inheritance? (S05)

Q#6:       A Muslim dies leaving behind mother, sister and father distribute the estate of the deceased according to the Hanfi law of Inheritance? (A05-A06)

Q#7:       A Muslim dies leaving behind one widow, mother, father’s father and a sister; distribute the estate of deceased according the Hanfi law of inheritance? (S07)

Q#8:       What is the difference b/w Shia and Sunni Law of inheritance? (A06-S07)

Q#9:       A Sunni Muslim dies leaving behind father, father’s mother, mother’s mother two daughters and a son’s daughter, distribute his estate amongst the heirs. (A08)

Q#10:    What do you mean by “Dissolution of Marriage”, write down the kinds of it in detail? (S07)

Q#11:    Enumerate various grounds for the dissolution of marriage under the dissolution of Muslim marriage act 1939? (A04-S05)

Q#12:    According to the dissolution of marriage Act 1939 under what circumstance a Muslim woman can get divorce discuss in detail. (A06-A08)

Q#13:    Define marriage and what are the essentials of a valid marriage, what is the legal effect of void and invalid marriage? (S04)

 

 

 

 

Q#14:    What are the essentials of a valid marriage? Describe in detail: Prohibition of marriage on the ground of fosterage? (A08)

Q#15:    What are the different kinds of marriages distinguish b/w them? (A03-A05)

Q#16:    What are the essential of a valid marriage? Differentiate b/w a valid, void and irregular’s marriage? (S03)

Q#17:    Discuss the different modes of Talaq according to Muhammadan law? (A03-S05)

Q#18:    What are the different modes of Talaq and when Talaq become irrevocable? (S04)

Q#19:    According to Muhammadan law what duties lie on a husband for the maintenance of his wife discuss in detail? (A05)

Q#20:    What is Doer? What are the kinds of Dower according to quantity and payment? (A06)

Q#21:    What is “Dower”, enumerate the various kinds of dower? Who is responsible to pay dower? (S07)

Q#21:    Define specified dower Distinguish between prompt and deferred dower? (S03-A04)

Q#22:    Define Waqf can a Muslim create Waqf in favor of his children and descendants? (A03)

Q#23:    What are essential of valid Waqf, who can appoint Mutawalli? (A04)

Q#24:    Enumerate the qualification and powers of a Mutawali under the Islamic law? (S03-)

Q#25:    What are the conditions of Waqf, describe the qualification of Mutawalli and his powers? (S05)

Q#26:    What kind of properties can be made subject of Waqf, when can Mutuwali be removed. Is the office of Mutawalli is hereditary? (S04)

Q#27:    What are the elements of Wakf? Distinguish between Islamic Wakf and English Trust. (A08)

Q#28:    Define Will in what circumstances can a will be revoked? (S05-A06)

Q#29:    How much of his/her estate a Muslim can dispose off by will? Does Quran lays down this limit of testamentary power? (A03)

Q#30:    In whose favor a will can be executed and how a bequest can be revoked? (S07)

Q#31:    What is the difference b/w Gift and will? Describe the necessary elements of each one? (S03-A04)

Q#32:    Define gift. What are the essentials of a valid gift? Also explain the circumstances under which delivery of possession is not necessary to complete a valid gift? (A08)

Q#33:    What is Gift whether a Gift can be revoked by the donor if so give reasons? (A05)

Q#34:    Discuss the law relating to death bed gift (Gift Marz-ul-Maut)? (S04)

Q#35:    What is option of puberty explain and how this right can be exercised? (A05)

Q#36:    Explain Khulla, illa and Zehar? Also distinguish between Khulla and Mubraat? (A08)

 

Part-II

Q#1:       Upto what age of her minor children is a mother entitled to their custody of their person and when does she lose the right of custody? (A03-A04-S05)

Q#2:       Under what circumstances a court may remove a guardian? (A03-A04-A05)

Q#3:       Enumerate the grounds under which a guardian can be revoked? (A06)

Q#4:       What matters shall a court consider in appointing a guardian discuss and in which cases the court is not authority to appoint the guardian of property of minor? (S07)

Q#5:       Which court will deal with the appointment of guardian of the person and property of a minor? (A05)

Q#6:       What are the obligations on the guardian of property of minor appointed by the court? Discuss. (S03)

Q#7:       Who is the person competent to file an application for the appointment of a guardian? (S03-A04)

Q#8:       Who are entitled to guardian ship of the person of a minor discuss in detail? (S04)

Q#9:       Describe the Qualification for the appointment of a guardian of a minor? (S05)

Q#10:    What are the rights, duties and liabilities of guardian under the Guardian and Ward Act? (A06)

Q#11:    What are the duties and limitations of the powers of guardian of property appointed or declared by the court? (S07)      

Q#12:    Define Hazawat and distinguish b/w legal and natural guardian? (S04)

Q#13:    a)What are the kinds of guardian under Guardian and Ward Act?

                b)Under what circumstances court can appoint a public servant as guardian of minor’s property (A08)

PRE-EMPTION LAW By Zulfiqar Ali Chandio

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PRE-EMPTION LAW

 1.       RIGHT OF PRE-EMPTION:

The technical Arabic term for its Anglo-Mohammedan equivalent “pre-emption” is “SHUFAA”, which literally means “adding” or “preference”

According to Section (2)(c) of the Punjab Pre-emption Act, 1991, the right of pre-emption means a right to acquire by purchase of immovable property in preference to other persons by reason of such right.

According to Justice Mehmood, the right of pre-emption is not a right of purchase either from the vendor or vendee involving any new contract of sale but is simply a right of substitution entitling the pre-emptor by reason of a legal incident, to which the sale itself was subject to stand in the shows of vendee, embracing all rights and obligations for sale in question.

 

DEFINITION: the right of pre-emption is a preferential right of a person already present in a locality in either manner like:

a.       Shafi Shareek

b.       Shafi Khaleet

c.       Shafi Jar

It is substitution of an owner to another by paying the market price of the property t the previous owner. Hence, it is said that it is not a sale but substitution of ownership.

 

INGREDIENTS: The following are the ingredients:

a.       It is primary or antecedent and secondary or remedial right

b.       It is a right of substitution and not of re-purchase

c.       It is a very weak right

d.       It is a personal right

e.       the Pre-emption must take the whole bargain

f.       It is preferential right

 

For Example: Anwar and Babar are co-wner of a certain property. Anwar without notice to Babar sells property to Khurshid. Babar can file a suit of pre-emption for the said land under law of pre-emption.

Saeed and Jamil have common boundaries in certain property. Sajid sells the property to an outsider Kalim without notice to Jamil. Jamil can file a suit of pre-emption to get the said land on payment of price.

 

OBJECT:

a.       PROTECT PRIVACY: the primary object of right of pre-emption is to protect the privacy of a specified area or locality.

b.       DISCOURAGE THE STRANGERS: The discourage the strangers to enter into a specified area.

CASE:

In case titled “Saeeduddin Ahmad Vs. Yusaf Wali” , the could held that the object of pre-emption law is to prevent possible vexation arising from a disagreeable neighbour.

c.       PREVENT THE INTRODUCTION OF STRANGER: Pre-emption  aims to prevent the introduction of a stranger among the c0-sharers and neighbours likely to cause inconvenience or vexation.

d.       MAINTENANCE OF SANCTITY: The object is to maintain the sanctity and piousness in a specified area.

CASE:

In case titled “Allah Bux Vs. Jano”, the court held that where no law of pre-emption is applicable to an area, Muslim law of pre-emption would apply to Muslim inhabitants of the area for maintenance of their sanctity.

e.       RESPECT NATIVE FEELING: It aims is to preserve respect to native feelings as regards caste exclusiveness, the seclusion of family life and so forth.

f.       PRESERVING PREVAILING VALUES AND ATMOSPHERE: It aims to maintain and uplift the prevailing values and atmosphere of a specified area.

CASE:

In case titled “Hussain Ilahi Vs. Ch. Hanif” the court held that the law of pre-emption does not aim to spoil the atmosphere of a particular area.

g.       PRESERVING INTEGRITY OF VILLAGES: the paramount object of pre-emption in village communities is the preservation of integrity of a village.

h.       ADVANTAGEOUS POSITION TO PRE-EMPTORS: It aims to give an advantageous position to the person already present in a specified area to uplift their financial status.

i.        PRESERVATION OF COMPACTNESS: the right of pre-emption aims to protect the compactness of village communities and through its agency the total disintegration of community checked.

 

CONCLUSION: the right of pre-emption is a right to acquire agricultural land or village or urban immovable property in preference to other persons. It is a statutory right and cannot be claimed unless a distinct right is given by act.

 

2.       WHO HAVE RIGHT OF PRE-EMPTION:

Persons entitled to Right of Pre-emption: According to Section 6 of the Punjab Pre-emption Act, 1991, following are the persons in whom the right of pre-emption vests:

a.       Firstly, in Shafi Sharik

b.       Secondly, in Shafi Khalit

c.       thirdly, in Shafi Jar

 

a.       SHAFI SHARIK: Shafi Sharik means a person who is a co-owner in the corpus of the undivided immovable property sold, i.e, a co-sharer in property.

For Example: Akbar and Babar are co-owners of certain property. Akbar without notice to Babar sells property to Kabi. Babar can file a suit of pre-emption for the said land under law of pre-emption.

Zahid and Nadeem are co-owners of a certain plaza. Zahid sells the upper floor of plaza to Kabir without notice to Nadeem. Nadeem can file a suit of pre-emption for the said floor under law of pre-emption.

CASE:

In case titled” Atif Ali Vs. Haji Yar Mohammad”, the court held that the defendant was liable to pay damages as he sold the property which was jointly owned by him and the plaintiff.

In another case titled “Allah Bux Vs. Jano”, the court held that the object underlying pre-emption law is a right which vests in pre-emption by reason of ownership of property and it exists prior to the date of sale although it can be enforced only after sale has taken place.

 

b.       SHAFI KHALIT: Shafi Khalit means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.

FOR EXAMPLE: Munir and Nadir are co-owners of certain property having common source of water. Munir transfers the property to Asghar without notice to Nadir. Nadir can file a suit of pre-emption to get the property on payment of sale price through court of law.

 

Aftab and Barkat are co-owners of property having common passage. Aftab transfers the property to Mumtaz without notice to Barkat. Barkat can file a suit of pre-emption to get the property on payment of sale price.

CASE:

In the case titled “Ch. Akram Mehmood Vs. Saeed Ali” the court held that Saeed was entitled to the property after payment of sale price as they had a common source of irrigation.

In another case titled “ Sakina Bibi Vs. dilawar cheema”, the court held that the plaintiff succeeded in the suit of pre-emption as he had a common passage with that of defendant.

                  

c.       SHAFI JAR: Shafi Jar means a person who has a right of pre-emption because of owing an immovable property adjacent to the immovable property sold.

FOR EXAMPLE: Amir and Bashir have common boundaries in a certain property and sell the same to an outsider Kashif without notice to Bashir. Bashir can file a suit of pre-emption to get the said land on payment of sale price.

CASE:

In case titled “Amin Daultana Vs Qayyum Haider”, the court held that as both plaintiff and defendant had common boundaries regarding the property hence defendant had no right to sell the property to a third party.

 

EXERCISE OF RIGHT OF PRE-EMPTION: The right of pre-emption can only be exercised in case of zaroorat or to avoid zarar.

According to Section 7, priorities in the right of pre-emption, where there are more than one participators in the special rights attached to immovable property sold, the person having a special right shall have a precedence over a person having a general right.

FOR EXAMPLE: A garden is irrigated by a water course which opens from a small canal. If this garden is sold, the person having right of irrigation from the water course shall have precedence over a person having right of irrigation from the canal.

 

                   CASE:

          In case titled “Shahzad Bajwa Vs. Arif Cheema”. The court held where one pre-emptor has a right of passage and other has a right of passage of water regarding immovable property sold, the person having right of passage shall have precedence over person having right of passage of water.

         

          EQUAL ENTITLEMENT: According to Section 9, where more than one persons are equally entitled to the right of pre-emption, the property shall be distributed among them in equal shares.

          JOINT RIGHT OF PRE-EMPTION: According to Section 8, where a right of pre-emption vests in a group of persons, the right may be exercised by all members jointly.

          CONCLUSION: Under the law of pre-emption, the right of pre-emption can only be exercised by a co-sharer/co-owner in immovable property, a person who has special rights attached to property sold and a person who has right of pre-emption because of owning property adjacent to immovable property sold.

          3.       ZAR-E-SU-AM:

DEFINITION: Zar-e-Su-Am is the one-third amount in cash of the total sale price under a suit of pre-emption, which the pre-emptor must deposit with the filing of suit in the court.

In case of winning the suit of pre-emption, the pre-emptor must also give a bank guarantee for the deposit of balance of three-fourth of the total price in the court in case of winning the suit of pre-emption.

LIMITATION FOR DEPOSITING ZAR-E-SU-AM: According to Section 24 of the Punjab Pre-emption Act, in every suit for pre-emption, the court shall require the plaintiff to deposit in such court, one-third of the sale price of property in cash within such period as the court may fix.

INGREDIENTS: The following are the ingredients of zar-e-su-am:

a.                  One-third amount in cash

b.                 One the total sale price

c.                  Under a suit of pre-emption

d.                  Which the pre-emptor must deposit

e.                  With the filing of suit in the court of law.

EXAMPLE: Anwar files a suit of pre-emption against Bashir, for certain property but does not deposit Zar-e-Su-am in the court. The suit is dismissed for want of Zare-e-Su-am.

 

OBJECT: The object of depositing money as Zar-e-Su-am, is to prevent and defeat the relaxation and speculative litigation.

MODE OF PAYMENT: It must be deposited in cash with the court or with any person appointed by the court for this purpose.

CASE: In case titled “Khawar Janjua vs. Yasir Ahmad”, the court held that as the plaintiff did not pay the one-third amount of total sale price, hence the suit of pre-emption is dismissed.

In another case titled “Yaqoob Khilji vs. Farooq Ali, the court held that in order to succeed in a suit of pre-emption, the amount of Zar-e-Su-am must be paid by the application.

 

CONDITIONS FOR DEPOSITING ZAR-E-US-AM: the following are the conditions to depositing zar-e-su-am;-

1.                   The time period fixed by the court for depositing zar-e-su-am shall not extend beyond 30 days of the filing of suit.

2.                 If no sale price is mentioned in the sale deed or in mutation or the price so mentioned appears to be inflated, the court shall require deposit of probable value of the property.

3.                 Where the plaintiff fails to make a deposit under sub-section (1), within period fixed by the court or withdraws the sum so deposited by him, his suit shall be dismissed.

4.                 Every sum deposited under said sub-section shall be available for discharge of costs.

5.                 the probable value fixed under said sub-section shall not affect the final determination of price payable by the pre-emptor.

 

DEPOSIT OF BALANCE PRICE: According to Section 25, where a court passes a decree in favour of pre-emptor on payment of excess price, the could shall require the pre-emptor to deposit remaining amount within thirty days of passing of decree.

EFFECT OF NON-DEPOSIT OF ZAR-E-SU-AM: If the pre-emptor does not deposit the one-third amount of total price in cash, in a suit of pre-emption in the court on the date fixed by the court or with the filing of suit, the suit of pre-emption shall be dismissed. Hence, in order to succeed in a suit of pre-emption in a court of law, the pre-emptor must deposit the zar-e-su-am on the date fixed by court or with the filing of suit.

FOR EXAMPLE: Zaheer files a suit against Kamal for certain property. The court orders to deposit the zar-e-su-am on a certain date. Zaheer does not deposit the said amount in the court on the date fixed. The suit will be dismissed.

THE PROVISIONS OF ISLAM: the law of pre-emption was made under the decision of Federal Shariat court of Pakistan in 1990 under the cannons of injunctions of Islam.

CONCLUSION: In order to succeed in a suit of pre-emption, the pre-emptor must deposit the one-third amount of total sale price in cash, otherwise, the suit would be dismissed by the court.

4.       TIME LIMITATION FOR FILING SUIT OF PRE-EMPTION:

LIMITATION: According to Section 30 of the Punjab Pre-emption Act, the time period for filing a suit of pre-emption is four months, i.e., 120 days from the date:

1.                   Of the registration of the sale deed

2.                 Of the attestation of the mutation if the sale is made otherwise than through a registered sale deed

3.                 On which the wendee takes physical possession of the property if the sale is made otherwise than though a registered sale deed or a mutation

4.                 Of knowledge by the pre-emptor, if the sale is made otherwise than through a registered sale deed or a mutation or when the possession was delivered.

EXAMPLES:

1.                   Zubair and Munir are co-owners of certain property having common source of irrigation. Zubair transfers the property without notice. Munir can file a suit of per-emption within four months and not afterwards.

2.                 Sajid and Javed are coowners of certain property. Sajid without notice to Javed, sells property to Nadeem. Javed can file a suit of pre-emption for said land within four months, i.e, 120 days, otherwise suit should be dismissed.

 

CASE:

In case titled “Noor Khan vs. Jehanzeb Khan”, the court held that the plaintiff could not exercise his suit of pre-emption as he filed the suit after expiry of stipulated time period, i,e, 120 days.

In Mst. Fatima Bibi’s case, the court held that the suit of pre-emption by plaintiff was dismissed as he filed the suit after five moths.

CONCLUSION: Hence, in order to succeed in a suit of pre-emption the pre-emptor must file the suit within four months, i.e, 120 days, otherwise his suit would be dismissed by court of law.

IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q 7    Upto What Age of her Minor Children is a Mother Entitled to the Custody of their Person and when does she lose the right of Custody.

 

A:                The Mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father.

                   Failing the mother, the custody of a boy under the age of seven years, and a girl who has not attained puberty, belongs to the following female relatives in the order given below:

1.                   Mother’s mother, howhighsoever

2.                 Father’s mother, howhighsoever

3.                 Full sister

4.                 Uterine sister

5.                 Consanguine sister

6.                 Full sister’s daughter

7.                 Uterine sister’s daughter

8.                  consanguine sister’s daughter

9.                 Maternal aunt, in like order as  sister

10.              Paternal aunt, also in like order as sister

 

A female including the mother, who is otherwise entitled to the custody of a child, loses the right of custody:

1.       If she marries a person not related to the child within the prohibited degrees, but the right revives on the dissolution of the marriage, by death or divorce

2.       If she goes and resides, during the subsistence of the marriage at a distance from the father’s place of residence.

3.       If she is leading an immoral life, as where she is a prostitute

4.       If she neglects to take proper care of the child.

 

 

IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q: 6   Who are the Persons Competent to file an APPLICATION for the Appointment of Guardian?

 

A:                Section 8 of the Guardians and Wards Act lays down that:

“ An order shall not be made under the last foregoing section 7 except on the application of:

1.                   The person desirous of being or claiming to be, the guardian of the minor.

2.                 Any relative or friend of the minor.

3.                 The Collector of the District or other local area within which the minor ordinarily resides or in which he has property.

4.                 The Collector having authority with respect to the class to which the minor belongs.”

An application for the appointment of a guardian can be made either by the person who wishes to be appointed or by any relative or friend of the minor, or by the Collector. Clause (b) gives wide scope for all interested in the minor to apply. Ties of blood are not necessary. It is competent to any friend of minor to approach the Court in case of the minor being ill-treated and to invoke the protection of the court on behalf of the minor. Thus, where a Hindu father was going to marry his daughter at the young age of four years, and the Guru of the community to which the father belonged applied to be appointed guardian of the person of the minor on the ground of her early marriage of which would expose her to the risk of premature widowhood, it was held that any friend of a minor may approach the court in the case of the minor being ill-treated and invoke the protection of the court on behalf of the minor. But it is not competent for a friend of the minor who is an outsider and not a relative to invoke the protection of the court for a minor who is in the lawful custody of her father, unless the applicant can satisfy the court that it is for the welfare of the minor that an order should be made against the father.

APPLICATION BY DEBTOR: Where a debtor offered to deposit in the court the amount alleged by him to be in deposit with him on behalf of the minor and asked the court to appoint a guardian for minor in respect of that amount, it was held that the debtor could be regarded as a friend of the minor and, therefore, he had locus standi to file the application.

AN INSTITUION CANNOT APPLY: under clause (a) the person who is desirous of being appointed can apply for being appointed. The duties and qualifications of a guardian do not permit any institution coming under this clause for being appointed a guardian of a minor.

AN OFFICIAL TURSTEE CANNOT BE APPOINTED: Excepting the Collector there is no other office who can be appointed a guardian of the property of minor.

MINOR CANNOT APPLY: Under the English Law, an infant possessed of property, whose father and mother are dead, and for whom there is not testamentary guardian has, after attaining the age of 14 (in the case of female, 12) the power of applying to the court for appointment of a guardian for himself, or herself. But the law gives the minor no such power. The persons who can make an application for the appointment of a guardian have been enumerated in the various clauses. A minor is not covered by any of the clauses and hence he cannot make an application himself for the appointment of a guardian for his person or property. This is also because a minor not being sui juris is incapable of making an application in a court For the same reason a minor cannot make an application as a fried or relation under clause (b) for the appointment of guardian of an other minor.

APPLICATION ESSENTIAL: From the language of Section 8 it is clear that a guardian cannot be appointed without an application under this Act. It is not open to a court to appoint a guardian at its own initiative. But once an application has been made in accordance with the provisions of Section 8 the jurisdiction of the court under the Act comes into play and it is open to it, as a result of the enquiry initiated on the application to appoint any other person as guardian of the minor provided the former has expressed his willingness to act as a guardian. But the court is competent to appoint only such person as guardian who either claims by his own application to be appointed guardian, or is proposed for appointment by some relative or friend of the minor. But a third person (i.e. one who neither applies himself nor is proposed by anybody else) cannot be appointed guardian. 

SECOND APPLICATION AFTER REFUSLA OF THE FIRST: Where an application has been dismissed on merits a second application for the appointment of the same person is not competent. But if the same person files the second application proposing the name of another person than himself for the appointment of a guardian the application is competent. Nor is a court precluded from entertaining a second application for appointment of guardian to the same minor, where the first was made by another person nor notwithstanding that a previous application by the same person has been dismissed in default. But where an order appointing guardian has been made no attempt to set aside at the instance of the party who opposed the appointment should be countenanced.

LIMITATION: there is no limitation for presenting an application for guardianship. It could be presented at any time within two limits namely:

1.       The date of the birth of the minor

2.       The date of the completion of 18 years at the time of the appointment and not at the time of the application.

IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q 5    What are the OBLIGATIONS on the Guardian of Property of Minor Appointed by the Court?

 

A:                Once a person, whether natural guardian or a stranger, is appointed guardian of a minor by order of the Court passed in accordance with the provisions of the Act, as contained in Sections 28 to 31, he is clothed with all the obligations imposed with the ward’s property. It is not in his power to throw off those obligations by the exercise of his own volition and pose as a natural guardian and act in that status.

                   PRECEDENCE OF RIGHT FOR GUARDIANSHIP OF PROEPRTY: According to Islamic Law, the following person s are entitled to be guardians of the property of a minor. They have the following order of precedence:

1.                   the father,

2.                 The executor appointed by the father’s will.

3.                 the father’s father.

4.                 The executor appointed by the will of the father’s father.

In default of these guardians the court may appoint a guardian for the protection and preservation of the minor’s property:

1.       MOTHER: She as such, is not the legal guardian of her minor son. She is only a de factor guardian and is therefore not competent to transfer the property of the minor.

2.       BROTHER: He is not a legal guardian of his minor sisters.

3.       UNCLE: Paternal uncle is not a legal guardian under Muslim Law.

4.       OTHER PERSONS: Only the persons mentioned above can act as guardians of the property of the minor. Failing such persons, the court may appoint a proper guardian. Persons not so appointed but acting as de facto guardians cannot bind the minors by their acts.

STATUS OF TESTAMENTARY GUARDIAN: The father or grandfather of the minor may appoint a guardian of his minor children by his will, and such guardian will have the power of a legal guardian.

STATUS OF DE FACTO GUARDIAN: A de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely viodable but void.

MAJOR DUTIES OF GUARDIAN OF THE PROPERTY OF A MINOR: section 27 enjoins upon a guardian to deal with the minor’s property as carefully as it were his own. In case, the guardian has been negligent he is liable for the profits which could have been received but for his gross and willful default.

STANDARD OF CARE: the standard of care required is that by which he has to be judged is that of a prudent man who is acting carefully with his own money. If the guardian is proved to have used ward’s money in his personal business, the ward will be entitled to receive principle sum, as well as the profits guardian has made out of the use of that money.

BREACH OF TRUST: It  is cardinal principle of law that every plain neglect of duty amounts to a breach of trust, and the guardian must compensate his ward for any loss occasioned to ward’s money.

GENERAL POINT OF VIEW OF THE COURT: It is normal practice that no court will uphold a transaction which it considers that a man of ordinary prudence would not have made, in respect of his own property; but where the transaction is sanctioned by the court no court would set aside it.

RECOVERY OF THE POSSESSION OF THE MINOR’S PROEPRTY: A guardian who has been appointed must make all attempts to obtain possession of the property of the minor. A certificated guardian, who has accepted the position of a trustee by virtue of an order passed by a court of law, cannot be say that he did not do his duty but let the properties remain under the management of somebody else. If he does not take any step to reduce into possession the properties of the minor, there is undoubtedly willful default and neglect of duty on the part of the guardian and the court will be entitled to pass a decree for accounts on the basis of default and neglect. 

If through his negligence he has lost some of the property of the ward, and has subsequently spent his own money for recovery of such properties, he will not entitled to recover the money thus spent from the minor but the money spent on recovery of possession from somebody at the time of his accepting office, will be payable to him.

LEGAL PROCEEDINGS: A guardian is under obligation to deal with the property of his ward as if it were his own and to do every thing which is reasonable and proper for the protection and benefit of the property entrusted to him. A guardian may, as such, bring a suit to preserve and protect the rights of the ward.

INVESTMENTS: It is well-settled rule that a guardian while making an investment of the property of the minor, is legally bound to act honestly and faithfully and exercise his own sound discretion like a man of ordinary prudence and intelligence use in their own affairs. He has no power to start an entirely new business unless compelled by necessity and for protection and benefit of the minor.

COMPROMISE: The natural guardian is competent to protect his interests and enter into a compromise provided it is for the benefit of the minor. This is question of fact and must be decided meticulously and jealously in each and every case depending upon its own circumstances.

DEBTS INCURRED FOR NECESSITIES: No doubt, a guardian cannot make covenants in the name of his ward so as to create personal liability on the minor, yet it does not mean that the minor is necessarily exempt from all liabilities in respect of simple contracts entered into by the guardian. If the debts were incurred for necessaries, the ward would be bound to pay them on the general principle embodied in Section 68 of the Contract Act.

NATURE OF NECESSARIES: Necessaries are those suited to minor’s condition in life and include such things as are reasonably required for the nourishment, clothing, lodging, education, health and decent behavour, and appearance of the minor according to his standard in life and fortune. The personal law of minor also plays an important part in the determination of his necessities.