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Ayisha vs Nil on 25 November, 2019

WP.44700/2018
1

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.
WP.44700/2018
2

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

SectionWards 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 Section10 and Section27 to Section29 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
WP.44700/2018
3

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 Section16 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.

WP.44700/2018
4

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.

WP.44700/2018
5

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 Section16 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
WP.44700/2018
6

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 Section31 of the Act, it is clear that the guardian is bound
WP.44700/2018
7

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

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