IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION No.44700/2018 (GM-RES) BETWEEN:
1. AYISHA, AGED ABOUT 15 YEARS, 2. FATHIMA, AGED ABOUT 12 YEARS, 3. SAMAYYA, AGED ABOUT 9 YEARS, PETITIONERS 1 TO 3 ARE REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER MRS. NASEEMA, AGED ABOUT 35 YEARS, W/O LATE YUSUF HYDER, R/O MUNDKOOR HOUSE, S.S ROAD, HEJAMADY VILLAGE & POST, UDUPI TALUK. … PETITIONERS (BY SRI CHIDANANDA .S. ADV.,) AND:
NIL … RESPONDENT THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUION OF INDIA, PRAYING TO QUASH THE ORDER DATED 7TH APRIL, 2018 - ANNEXURE – A PASSED IN G AND W CASE No.01/2017 PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AT UDUPI AND GRANT PERMISSION TO SELL THE PROPERTIES MOREFULLY DESCRIBED IN THE (G AND W CASE No.1/17) ANNEXURE – C PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Mother – Smt.Naseema filed the present writ petition against the order dated 07.04.2018 passed dismissing the application filed under Section 29 of the Guardian and Wards Act, 1890 (for short, referred to as ‘the Act’) in G & W Case No.1/2017 on the file of the Principal Senior Civil Judge, Udupi, 2. It appears that earlier petitioner filed G & W Case No.23/2012 under Sections 7 to 10 and 27 to 29 of the Act to appoint her as guardian for the person and property of her minor children namely Ayisha, Fathima and Samayya, aged about 11, 8 and 5 years respectively and permit her to manage and look after and to sell the petition ‘A’ schedule immovable properties and to grant guardian certificate in her name for the said purpose. The Court below appointed the petitioner/Mrs.Naseema wife of late Yusuf Hyder as guardian of the person and property of her minor children till the expiry of three years after the said minors attain the age of majority and also directed the petitioner to execute a security bond for twice the amount or value of the petition ‘A’ schedule property within 30 days from the said order and that the bond shall not be cancelled till the expiry of three years after the said minors attaining the age of majority as per Sections 14(1) and 16 of the Act, reserving liberty to the petitioner to apply as and when required under Section 29 of the Act for sale of petition ‘A’ schedule immovable properties for the benefit of said minor children. It is thereafter the petitioner filed G & W Case No.1/2017 under Section 29 of the Act seeking permission to sell the schedule properties for the benefit of minor children namely Ayisha, Samayya and Fathima. The Court below considering the provisions of Sub-section (3) of Section 31 of the Act, by the impugned order dated 07.04.2018, dismissed the application as not maintainable. Hence, the present writ petition.
3. I have heard the learned counsel for the petitioners.
4. Sri Chidananda, learned counsel for the petitioners vehemently contends that the impugned order passed by the Court below rejecting the application filed by the mother – Naseema as not maintainable is erroneous and contrary to law. He would further contend that the reasons assigned by the Court below to reject the application are without any basis. He would also contend that though the Court below referred to some Agreements of Sale, petitioner has not at all produced any such agreements executed by the third parties and that it is only a typographical error committed by the learned counsel appearing for the petitioners in the Court below. He also contends that the impugned order is not a speaking order and that the Court below has proceeded purely on the basis of technical reasons. Therefore, he sought to allow the writ petition.
5. Having heard the learned counsel for the petitioner and on perusal of the materials on record, it is seen that when the Court below in G & W Case No.23/2012 vide order dated 30.11.2012 has specifically stated that the petitioner – Naseema shall execute a security bond for twice the amount or value of the petition ‘A’ schedule properties within 30 days of the said order and that bond shall not be cancelled till the expiry of three years after the minor children attain the majority as per Section 14(1) and 16 of the Act, it is not forthcoming either in G & W Case No.1/2017 or before this Court as to whether the said order has been complied with or implemented by the petitioners. In the absence of compliance of the said order, question of filing an application under Section 29 of the Act would not arise. The Court below, by the impugned order, considering the entire material on record, has recorded that the petitioner has produced Ex.P1 paper publication and Ex.P2 certified copy of the order passed in G & W Case No.23/2012, whereby the petitioner was appointed as guardian of minor children and that though the petitioner has stated in the petition that she has entered into Agreements of Sale dated 08.12.2005, 21.05.2009 and 06.08.2008, copy of the said agreements are not produced. As per Sub-Section (3) of Section 31 of the Act, there is a condition to be satisfied before ordering for permission and as per clause (b) of Sub-section (3) of Section 31 of the Act, the sale shall be made to the highest bidder by public auction before the Court. However, in the instant case, it appears that petitioner has already entered into Agreement of Sale before she being appointed as guardian as per order dated 30.11.2012. Therefore, the Court below was of the opinion that application itself is not maintainable as the petitioner has entered into an agreement before she being appointed as guardian and that the properties standing in the name of minors, should only be sold in public auction before the Court. Accordingly, the Court below rejected the application.
6. On plain reading of the provisions of Sections 29 and 31 of the Act, it is clear that the guardian is bound by the order of the Court and he/she is under obligation to retain the property of minor for whom he/she is appointed as guardian and that the guardian should act in the interest of minor. The guardian cannot part with the property of the minor without the permission of the Court and he/she is not authorized to sell the property to his/her detriment. Admittedly, in the present case, the the application is filed by the mother who is natural guardian of minors who are aged 15, 12 and 9 years. The Court below, considering the paramount interest of the minor children, was of the opinion that the petitioner has not made out a case for permitting her to sell the petition schedule properties and the same is in accordance with law. Petitioner/mother has not made out any grounds to interfere with the impugned order under Articles 226 and 227 of the Constitution of India. Accordingly, the writ petition is dismissed.
Sd/- JUDGE PKS