ORDER

The petitioners are before this Court calling in question order dated 30-06-2020 passed by the IX Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru in G & W.C No.25 of 2019 and have sought for a consequent permission to sell the property scheduled in the petition belonging to their daughter Ms.Jahaan Ara Shadab.

2. Heard Sri. Jayakumar S.Patil, learned senior counsel appearing for petitioners and Sri Sridhar Prabhu, learned Amicus Curiae.

3. Brief facts that lead the petitioners to this court in the subject petition, as borne out from the pleadings, are as follows:-

The petitioners are husband and wife, parents of a minor daughter Ms.Jahaan Ara Shadab who on the date of filing the petition was aged about 9 years and is now 11 years old. The daughter was born from the wedlock on 7-01-2010. The 1st petitioner/father had purchased subject schedule property from several vendors in terms of deed of sale dated 15.11.2006. The father, after the purchase of schedule property, gifts the same to his daughter on 25-11-2011 who was by then a year old child and declaring the 2nd petitioner as guardian of the minor. The gift was executed with the sole intention that the rental income that would be derived in future from the schedule property would be used for the welfare of the minor daughter, more particularly, for her education purpose and for betterment of the minor child. It is contended that from 2016 no income is derived from the property as there are no tenants in the said property due to which the father makes up his mind to sell the property as it had become non- yielding asset. It is also averred that from 01-01-2019 several intending buyers approached the father for purchase of the property for a sale consideration. Since the property had been gifted to the minor daughter it was necessary to take permission of the Court to sell the property in terms of The Guardians and Wards Act, 1890 (‘the Act’ for short) and, therefore, filed an application before the concerned Court in G & W.C. No.25 of 2019 under Sections 10 and 12 of the Act.

4. The learned Judge considering the said application seeking permission to sell the property, by his order dated 30-06-2020 declines to accede to the said request holding that there is no acceptable evidence as averred before the Court that presently they cannot afford to give education to the daughter and it can be done only by selling the property. This order was called in question before a Division Bench of this Court in M.F.A.No.27 of 2021 which comes to be disposed of on a submission made by the learned counsel for the appellants therein that he would seek the remedy available in law. The remedy available, according to the appellants, was filing a writ petition challenging the order passed by the concerned Court and not a miscellaneous first appeal as was filed. It is, therefore, the present petition comes up raising a challenge to the order passed by the concerned Court in G & W.C. 25 of 2019.

5. The learned senior counsel Sri Jayakumar S.Patil appearing for the petitioners would submit that the evidence brought on record before the concerned Court should have resulted in findings that are in favour of selling the property and not against it. The concerned Court has failed to understand the pleadings of the petitioners and failed to consider the fact that the petitioners are not in a condition and only the sale of the property can educate the child.

6. This Court, in terms of its order dated 22-08-2022, appointed learned counsel Sri Shridhar Prabhu to be the Amicus Curiae, since the respondent column was showing as nil and the interest of the ward that is involved. The learned Amicus Curiae has made elaborate submissions apart from filing the same before Court. The threshold bar that was doubted by this Court at the time when the matter was taken up was, whether an appeal remedy was available to the petitioner under the Act or the writ petition would become maintainable.