Practically, no distinction is maintained between the natural guardian’s powers and testamentary guardian’s power over minor’s property under Muslim law. It seems that the Muslim law-givers first lay down the powers of an executor or testamentary guardian and then state that the natural guardian has the same powers.
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The Muslim law-givers also approach the subject from the point of view of the needs of the minor; what acts are necessary which should be done on behalf of the minor. After classifying the acts, they state which acts can be performed on behalf of the minor, and by whom. The Hedaya classifies these acts under the following three heads:
ADVERTISEMENTS:
(a) Acts of guardianship, such as contracting a child in marriage, or selling and buying goods for him. These acts can be done solely by the Wali or the natural guardian, whom the law “constitutes the minor’s substitute in those points”;
(b) Acts arising from the want of the child, such as buying or selling for him to satisfy his needs, such as food, clothing, shelter or hiring a nurse for him. These acts can be done by the maintainer of the child, whether he be brother, uncle or the mooltakit (in case of a foundling), or the mother, provided she be the maintainer of the child. Since these persons are entitled to do these acts, the wali as well as the natural guardian, is also empowered to do so. In the case of the guardian, it is not necessary that the child should be under immediate protection;
(c) Acts which are advantageous to the minor such as accepting presents or gifts and keeping them for him may be done by a mooltakit, brother, uncle, and also by the minor himself, if he is of the age of discretion. Since these acts are entirely of a beneficial character, the child himself, or any person under whose protection the child is, can perform them.
Some authorities divide the acts in respect of the minor under the following three heads:
ADVERTISEMENTS:
(i) Acts which are beneficial or advantageous to the minor;
(ii) Acts which are absolutely injurious to the minor; and
(iii) Acts which are mid-way between the first two.
As to the acts falling under the first category, any person, whether a guardian or not, in whose care the child is, can perform those acts. Under this category fall such acts as are, acceptance of gifts and alms. If the minor is of the age of discretion, he himself can perform them.
ADVERTISEMENTS:
The acts which are absolutely injurious to the minor, such as emancipating a slave, or divorcing a wife, no person are empowered to do them on behalf of the minor. As to the acts under the third category, such as sale or hiring of property for profit, they can be done only by the father, grandfather, or the executor, irrespective of the fact whether the child in his custody or not, it is because the power is invested in him by virtue of his being the guardian of the minor.