A father dies leaving a widow and three children, two of them under eighteen. The family wants to sell the house and divide the proceeds.
They cannot — not without the court's involvement — and a sale done without it is liable to be set aside years later, at the instance of the child who was a minor at the time.
A parent is not automatically able to deal with a child's property
Under the Guardians and Wards Act 1890 the court appoints guardians, and the law distinguishes two roles:
Guardian of the person — care and custody of the child.
Guardian of the property — dealing with the child's assets.
A surviving mother having custody does not, by that fact alone, have authority to sell the child's inherited share. The father is generally the natural guardian, and on his death the position must be regularised through the court if the child's property is to be dealt with.
This is the point families most often get wrong, usually with good intentions.
Getting appointed
An application is made to the Guardian Court having jurisdiction where the minor ordinarily resides. Broadly:
- Application identifying the minor, the property, and the proposed guardian
- Notice to relatives and other interested persons
- Inquiry into the welfare of the minor and the suitability of the applicant
- Order appointing the guardian, frequently on conditions
- Security, where the court requires it, and an obligation to file accounts
The court's governing consideration is the welfare of the minor, exactly as in custody proceedings.
Selling a minor's property needs permission
A guardian of property cannot sell, mortgage, gift or exchange the minor's immovable property without the court's prior permission.
That permission is not a formality. The court examines whether the transaction is necessary or for the evident advantage of the minor — not merely convenient for the family — and will want to see:
- Why the sale is needed at all
- An independent view of the value, so the price is demonstrably fair
- What happens to the proceeds — how the minor's share will be secured, frequently by deposit or investment until majority
- Whether an alternative exists
Sales at an undervalue to a relative are examined closely, and rightly.
What happens if you skip it
A disposal of a minor's property without permission is voidable, and the child may challenge it after attaining majority — with the limitation period generally running from then rather than from the sale.
That means a house sold "for the family" in 2010 can be litigated in 2030 by the person who was nine at the time. The purchaser is then drawn in as well, which is why competent buyers ask.
For buyers: where any seller is or was a minor, or where the property came through an estate involving minors, ask to see the guardian order and the permission to sell. A transaction lacking them carries a risk that does not go away. See checking title before buying property in Karachi.
The guardian's continuing duties
Appointment is not a one-off. A guardian of property is accountable:
- Keep the minor's property and money separate from your own
- Maintain records of income and expenditure
- File accounts with the court where required
- Obtain permission before any dealing that requires it
- Hand over the property and account on the minor attaining majority
Guardians who treat the child's share as family money — using rent to run the household, for instance — are storing up a claim.
Where it usually arises
On a parent's death, where the estate includes property and some heirs are minors. This should be dealt with as part of the succession process rather than after. See transferring property into the heirs' names after a death and who inherits what in Pakistan.
On partition, where co-owners include minors. See dividing jointly owned property.
Where a minor receives a gift of property, and it later needs to be dealt with.
On a marriage breaking down, where a child's assets need protecting from a parent's creditors or from being dissipated.
For families abroad
Where the minor or the guardian lives outside Pakistan, the process can generally be conducted through an attested power of attorney, though the Guardian Courts — like the Family Courts — are more likely than other forums to want a party present at some stage.
Overseas families frequently discover the problem at the point of sale, having assumed the surviving parent could simply sign. Establish the position early. See selling inherited property from abroad.
How the firm can help
We apply for appointment as guardian of property, obtain the court's permission for sales and other dealings, advise on how the minor's proceeds should be secured, and prepare the accounts a guardian must maintain.
For purchasers, we check whether a guardian order and permission exist as part of title investigation — and advise against transactions where they do not.
If an estate includes minors, contact the firm before anything is sold. Regularising it now is straightforward; unwinding it later is not.