Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 552 (KER)

Girish v. Sankaran Nair

2000-10-23

S.MARIMUTHU

body2000
Judgment :- S. Marimuthu, J. Both these appeals have arisen against the common judgment in A.S. Nos. 99 and 100 of 1986 respectively on the file of the Additional District Judge, Trichur. A:S. No. 99 and 100 of 1986 had arisen against the common judgment in A.S. Nos. 1086/79 and 500/82 on the file of the Munsiff Court, Trichur. 2. The appellants in both the second appeals are brothers who had separately filed the above said two suits. The suits are filed for a declaration that the document executed by the mother and other major members of the joint family is null and void and also for partition. The trial court passed a preliminary decree petitioning 1/17th share to each plaintiff (each appellant herein) in the suit property measuring 82 and odd cents. The above said common decree was reversed by the District Judge in the above said two appeals. The first respondent (first defendant) is the uncle (mother's brother) of the appellants and the second respondent (second defendant) is the mother of the appellants and the other respondents are the members of the tavazhi. The suit property is situate at Chathukudam desom, which is away from Puthenchira, where the parties are residing and it is a joint family property. Apart from the above admitted facts, the case of the appellants would be that all the joint family member designed in conspiracy, colluded and executed Ext. B1 Ozhimuri on 20.3.1964 in favour of the first respondent for a low price, viz. Rs.1,600/- detrimental to the interest of the appellants, who were minors then and though their father was hale and healthy at that time, being the natural guardian of the appellants, he has not signed the document representing them. On the other hand, their mother, the second respondent has signed on their behalf and in fact their mother has also acted against their interest in the execution of the said document and hence it is to be declared that the document is null and void and each appellant is entitled to 1/17th share in the suit property. 3. Per contra, the averments of the first respondent would be that since the suit property is lying far away from their residence (family house) where all of them were residing, they could not maintain that property nor could they get any income from the property. 3. Per contra, the averments of the first respondent would be that since the suit property is lying far away from their residence (family house) where all of them were residing, they could not maintain that property nor could they get any income from the property. And further, the elder brother of the first respondent was committing waste in the property and even if a partition is effected among the members of the joint family they will get only a small extent for their share which could not be useful for any purpose and in such circumstances, all the major members of the family requested him to purchase the property by way of an ozhimuri and in fact he was compelled by all the members and therefore he purchased the property by paying Rs. 1,600/- which he had saved from his salary, being a personnel in the defence service and the price of the property at Rs. 1.600/- at that time was reasonable. The above contentions of the first respondent are supported by the other respondents 4 to 14 (defendants 4 to 14). 4. The second respondent, the mother of the appellant, has taken a different stand in her written statement by saying that there was no conspiracy or collusion among the family members in depriving the rights of the appellants over the suit property. On the other hand, her mother, Kunhukutty Amma compelled her to execute the said deed by using undue influence and the first respondent-her brother also exercised threat on her to execute such a document and in that circumstance, she was forced to sign the document on her behalf and also on behalf of her minor children, the appellants herein. 5. The trial court, on trying both the suits, jointly decreed the suits and the lower appellate court reversed the judgment and decree as pointed out above. 6. The only point that is urged before me for consideration is whether the appellants are entitled to challenge the validity of the ozhimuri document marked as Ext. B1 (Ext. Al copy). 7. The first contention raised by the learned counsel for the appellants, Mrs. Parvathi A. Menon, is that the father of the appellants who was hale and healthy was the natural guardian of the appellants and he alone was competent to sign Ext. B1 (Ext. Al copy). 7. The first contention raised by the learned counsel for the appellants, Mrs. Parvathi A. Menon, is that the father of the appellants who was hale and healthy was the natural guardian of the appellants and he alone was competent to sign Ext. BI document representing the minor appellants and therefore the representation of the second respondent, the mother of the minor appellants in the said document is incorrect and as against the provisions of law. Therefore the said document would not bind the respective shares of the appellants in the suit property. Per contra, the submission of the learned counsel for the respondents, Mr. Samuel, would be that a comparative reading of the statutory provisions in the Guardians and Wards Act, 1890, Hindu Minority Act, 1956, the Cochin Nayar Act (Act 29/1113 M.E.) and also the settled position of law would make it clear that the mother can represent the minors in the execution of the said document. So on account of the above rival submissions of both the learned counsel, let me first decide whether the mother the second respondent is a competent person to sign Ext. B1 on behalf of her minor children-the appellants. 8. Before examining that aspect, one more finding can be recorded herein with reference to the character of Ext. BI document. In fact as is seen in the pleadings, evidence and findings of both the courts, it is patently clear that both the sides have advanced their respective contentions on the footing that Ext. B1 is an ozhimuri (release deed). In this context, it is pertinent to look into Full Bench decision of the Madras High Court reported in AIR 1968 Madras 159 (Chief Controlling Revenue Authority v. Pale!) where it is held as follows: "Where the property is owned by two co-owners each having an undivided half share in the property and one of them by a deed effaces himself in respect of his title and right to possession in favour of the other, the document is a release and not a conveyance". In this decision, the judgment of the Supreme Court reported in AIR 1967 SC 1395 (Kuppuswami Chettiar v. Arumuga Chettiar) is relied upon. On account of the above contentions and settled law, it is recorded that Ext. BI is a release deed. Now I will take up the competency of the mother in signing Ext. In this decision, the judgment of the Supreme Court reported in AIR 1967 SC 1395 (Kuppuswami Chettiar v. Arumuga Chettiar) is relied upon. On account of the above contentions and settled law, it is recorded that Ext. BI is a release deed. Now I will take up the competency of the mother in signing Ext. Bl. 9. Admittedly, the parties to the proceedings are Nairs residing in Cochin State. Ss.23 and 24 of the Cochin Nayar Act of 1113 M.E. are as follows: S.23. "The husband shall be the guardian of his minor wife in respect of her person and property and, subject to the provisions of S.24, the father shall be the guardian of his minor children, other than married minor daughters under the guardianship of their husbands, in respect of their person and property.S.24. The mother shall be the guardian of the person and property of her minor children if their father is dead or the marriage of their parents is dissolved." S.60 of the same Act provides as follows: "Every female member who claims to get her share of the tarwad properties shall also claim and shall also be entitled to get the shares of her minor children in such properties." The above said S.60 comes under Chapter 7 (relating to partition). In S.4(2) of the Guardians and Wards Act, 1890, guardian is defined as follows: "guardian" means a person having the care of the person of a minor or of his property, or of both his person and property". In S.4(b) of the Hindu Minority and Guardianship Act, 1956, guardian is defined as follows: "guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes (i) a natural guardian, (ii) a guardian appointed by the will of the minor's father or mother, (iii) a guardian appointed or declared by Court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards". S.6 of the said Act is relating to natural guardian of a Hindu minor, which is as follows: "The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minors property excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother". 10. The above provisions in the Hindu Minority and Guardianship Act, 1956, are so clear that excluding the undivided interest in the joint family property, the father can be the natural guardian of the minor's person as well as the minors property. When that provision is applied to the present case on hand, the mother, viz. the second respondent can rightly represent her children, the appellants herein in the-execution of Ext. Bl. 11. The next aspect would be whether such provision which appears to be counter to the provisions of Ss.23 and 24 of the Cochin Nayar Act extracted above can be acted upon. When such a doubt has erupted, it leads to the necessity of examining the settled law relating to the provisions in the Guardians and Wards Act, 1890 as well as the Cochin Nayar Act. In this context, I feel that it is also essential to look into the statutory provisions in the Kerala Joint Hindu Family System (Abolition) Act, 1975. That Act came into force on 1.12.1976. As per the above said Abolition Act of 1976, most of the Acts have been repealed including the Cochin Nayar Act, XXIX of 1113. And it is pertinent here to look into S.5 of the Hindu Minority and Guardianship Act, 1956 which reads as follows: "Save as otherwise expressly provided in this Act. (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:" 12. One more factual aspect has also to be examined here. It is an admitted case of both the sides that at the time of execution of Ext. One more factual aspect has also to be examined here. It is an admitted case of both the sides that at the time of execution of Ext. B J, the appellants' mother, the second respondent and their father were residing permanently under the same roof and of course when the father was away for his employment, the mother had to sign the document on behalf of their minor children. There is no evidence to accept the contentions of the appellants that all the major members of the tarwad designed a conspiracy or colluded together in order to deprive of their rights over the suit property. Their mother, the second respondent, as pointed above, has taken a different stand in her written statement that she was compelled and threatened by her mother and brother, first respondent to execute Ext. BI on her behalf and on behalf of the minor children. That stand in my view, is unnatural and cannot be accepted even for a moment. While she was residing happily with her husband, who was hale and healthy, no threat or compulsion could have been put on her. In this context, it is essential to look into the evidence of the first respondent as D.W. 1. It is his case throughout that since the property is lying away from the family house, they could not maintain the property properly and his elder brother was committing waste in the property and even, if a partition had been effected, each member would get a fractional share, which would not serve any purpose for their enjoyment and therefore, he was requested by all the members to purchase the same. The above case in fact is so reasonable and acceptable and the oral testimony of DW.1 in this regard is corroborated by the testimony of other witnesses examined on his side. 13. Now, I will look into the settled proposition of law with reference to the guardianship of the minors. This Court in an earlier case, reported in AIR 1964 Kerala 269 (Ramachandra. Annapurni ammal) has held that in an application under S.25 of the Hindu Minority and Guardianship Act, the mother could not be appointed as guardian of the child who was then seven years old against the father. This Court in an earlier case, reported in AIR 1964 Kerala 269 (Ramachandra. Annapurni ammal) has held that in an application under S.25 of the Hindu Minority and Guardianship Act, the mother could not be appointed as guardian of the child who was then seven years old against the father. Now, once again I will look into the provisions in S.6 of the Hindu Minority and Guardianship Act extracted above where it is provided that in the case of a boy and an unmarried girl, the father is the first guardian and only after him the mother will be the guardian (excluding his and his undivided property). In the instant case on hand, as noted above, the dispute is with reference to the undivided joint family property measuring 82 1/2 cents. Therefore, the principle in the above decision is not squarely applicable to the present case. 14. The Delhi High Court in Madhu Bala v. Arim Khanna (AIR 1987 Delhi 81) has held thus: "No person other than a natural mother, whether she works for a living or does not, or merely is a house wife, is in any case a better person for bringing up the child, in case of a male child atleast up till such time as he attains puberty. Both the maternal love and maternal discipline are required for bringing up the child. But it did not mean that paternal love and discipline is not required. That may be equally required but the mother is preferable to the relations of husband". The Orissa High Court in Abdul Kalam v. Akhtari Bibi (AIR 1988 Orissa 279) has-laid down the principle that in an application filed under S.25 of the Guardians and Wards Act, 1890, though the names of the near relations of the minor are not mentioned by the mother, that application is maintainable. What is meant in the above said judgment would be that for both the Muslims and Hindus, the mother can entertain an application under S.25 of the above said Act. 15. Yet another point to be borne in mind is that the contention of the mother-the second respondent appears to be that the release in respect of her share is correct and it need not be disturbed. On the other hand, the release in respect of her son's shares, is not correct and that contention does not appear to be reasonable. Yet another point to be borne in mind is that the contention of the mother-the second respondent appears to be that the release in respect of her share is correct and it need not be disturbed. On the other hand, the release in respect of her son's shares, is not correct and that contention does not appear to be reasonable. On account of the above factual and legal aspects, I am fully satisfied to hold that the mother can rightly represent her minor children in the said document, Ext. Bl. 16. The next point advanced by both the learned counsel would be with reference to the family necessity. Ss.54 and 55 of the Cochin Nayar Act are as follows: "S.54. No sale, mortgage, pledge or other alienation of tarwad property or debt shall bind the tarwad unless it is executed or made or contracted for tarwad necessity or it is executed or made or contracted by or with the written consent of all the major members of the tarwad, when there are only major members in the tarwad. S.55. The burden of proving tarwad necessity shall be on the purchaser, mortgagee, pledge or other alienee or creditor, as the case may be. But the Court may presume such necessity where all the major members of the tarwad are parties to it or have given their written consent to the transaction." The first limb of S.54 is so clear that for tarwad necessity a sale or mortgage etc. can be executed and the second limb of the said section would indicate that with the written consent of all the major members (where there are only major members in the tarwad) such document can be executed. In the instant case on hand, the first part of S.54 is applicable. For, the contention of the learned counsel for the respondents would be that on account of the necessity, viz., that the property was not profitable since it is lying away from the family house, waste was committed in the property by the elder brother of the first respondent and even if it had been partitioned, the parties would not get substantial extent of the property for their enjoyment, such document was necessitated to be executed. The above contention of the learned counsel is fortified by the evidence let in by both the sides. The above contention of the learned counsel is fortified by the evidence let in by both the sides. On the other hand, the case of the appellants is not established. And their mother, as noted above, has taken a different stand in the written statement, viz., threat, coercion or undue influence and that too was not even probabilised by her by examining herself as a witness. The non-appearance of the mother as a witness is also a circumstance to show that the appellants have not come forward with a true case. S.55 of the Cochin Nayar Act extracted above would provide that the burden of proving the necessity always lies on the purchaser, mortgagee etc. In the instant case, as I have pointed out above, the first respondent has established the same. The second limb of S.55 is relating to the presumption as per which the court can presume the family necessity, when all the major members of the tarwad are parties or they have given their written consent to the transaction. Admittedly, all the major members are parties to Ext. B1. So, it can be rightly presumed as provided in the second limb of S.55 that Ext. B1 was executed for family necessity. Such presumption is also not rebutted by the appellants. In this juncture, it is worthwhile to look into the principle laid down by this Court in Sreedharan Pillai v. Narayana Filial (1959 KLT 775) where this Court has held as follows: "The consent of all the adult members of the Tarwad will give rise to a reasonable presumption of Tarwad necessity which if unrebutted will favour the creditor though consent and Tarwad necessity are not synonymous terms nor are they interchangeable. In a case where the sale deed was executed by all adult members of the Tarwad and attested by the father of the plaintiff and all the defendants there is a strong presumption of tarwad necessity in favour of the defendant". 17. The next submission of the learned counsel for the appellants would be that the value of the land of 82 and odd cents fixed at Rs. 1,600/- even in the year 1964 is unreasonable and that also is a strong circumstance to hold that the document is not supported by proper consideration and it is liable to be set aside. The next submission of the learned counsel for the appellants would be that the value of the land of 82 and odd cents fixed at Rs. 1,600/- even in the year 1964 is unreasonable and that also is a strong circumstance to hold that the document is not supported by proper consideration and it is liable to be set aside. Per contra, the learned counsel for the respondents would contend that a perusal of the evidence let in by DVV.1, DW.4 and also Ext. A2 sale deed executed on 20.7.1962 would go to show that the price of the land fixed at Rs. 1,600/- is fair and reasonable. So regarding this aspect, let me look into the evidence. The property purchased in Ext. A2 is measuring 211/4 odd cents with some three buildings and other improvements thereon for a total consideration of Rs. 6700/-. To speak of the contents in Ext. A2, the first respondent has examined one Govindan as DW.4. He would depose that at the time of the purchase of this property by the Co-operative Society, he was a member of the Director Board of the said Co-operative Society and that property in Ext. A2 situates at Vallachira Centre having roads on the eastern and southern sides and Panchayat Office, Village Office and Hospitals are located near that property. In that property itself, there was a two storied building and there were another two single storied buildings at the time of execution of Ext. A2. When I examine the above oral evidence of DW.4 with the recitals in Ext. A2, it is so clear that Ext. A2 property could be rightly valued at Rs. 6700/- since it has got improvements like buildings etc. in the year 1962 as pointed out above. Hence the fixation of the value of the present property at Rs. 1,600/- in my view appears to be so reasonable. Further it is to be noted that the first respondent was employed in the Defence as a Commissioned Officer and therefore naturally he could have saved money and easily paid the sale consideration. 18. Hence the fixation of the value of the present property at Rs. 1,600/- in my view appears to be so reasonable. Further it is to be noted that the first respondent was employed in the Defence as a Commissioned Officer and therefore naturally he could have saved money and easily paid the sale consideration. 18. Another argument was advanced pointing out to S.65 of the Cochin Nayar Act which is as follows: "If any property or right divisible under this Chapter is incapable of actual division or cannot be divided without seriously lessening its value of utility, the court shall have power to direct the sale or enjoyment in common or by turns of such property or right as the circumstances of the particular case would permit." This Section comes under the Chapter Partition. It is crystal clear from the section that during .the partition in the tarwad, if any difficulty arises in respect of dividing the property, that is to say, which is as a matter of fact, incapable of actual division, it cannot be divided without seriously lessening its value of utility, the court can exercise its power directing the parties to sell or enjoyment in common by turns etc. But that provision does not apply to the present case on hand. As I have pointed out above, Ss.65 can be invoked only during the course of partition in the joint family property. Here it is not so. In the instant case only on account of the family necessity which is contemplated in S.54 of the Nayar Act, the deed had to be executed. Therefore, the court's powers conferred in S.65 of the Act have no say in the present controversy on hand. On account of the forgoing discussions, I am satisfied to hold that the appellants are not competent to challenge the ozhimuri document, Ext. B1. In the result, both the appeals stand dismissed confirming the common document delivered by the learned Additional District Judge in A.S. Nos. 99 and 100 of 1986. Consequently both the suits, O.S. Nos. 1086 of 1979 and 500 of 1982 on the file of the Munsiff Court, Trichur stand dismissed. No order as to costs.