Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 513 (KER)

Illathkandy Deepak v. Illathkandy Viswanathan

2001-09-24

K.A.MOHAMED SHAFI, P.K.IYER BALASUBRAMANYAN

body2001
JUDGMENT P.K. Balasubramanyan, J. 1. The plaintiff in O.S. 556 of 1984 on the file of the Munsiff's Court, Calicut is the appellant. A suit for partition filed by him claiming one out of four shares was dismissed by the trial court and that dismissal was confirmed in appeal. This second appeal under S.100 of the Code of Civil Procedure challenges the dismissal of the suit. 2. The parties are Thiyyas of Calicut governed by Hindu Mitakshara Law. The plaint schedule property alongwith Other properties belonged to the family of the plaintiffs and defendants 1 to 3. As per a partition of the year 1945 the properties of the family were divided and the plaint schedule property was set apart to the share of the branch consisting of defendants 1 and 2, the plaintiff and defendant No.3. The plaintiff and defendant No.3 are the children of defendant No.1 in the suit. Defendant No.2 is the brother of defendant No.1. Defendant No.1 for himself and acting as the guardian of the plaintiff and defendant No.3 and defendant No.2 together sold the plaint schedule property to defendant No.4 in the suit for a consideration of Rs.4,000 on 23rd May 1971 under Ext. B-1. Defendant No.4 sold a portion of the property to defendant No.6, wife of defendant No.5 under Ext. B-2, dated 6th March 1972. the suit for partition was filed by the plaintiff on 1st October 1984, twelve years after Exts. B-2 and B-1. The plaintiff contended that the plaintiff had a right by birth in the plaint schedule property and sale executed by defendant No.1 his father in the year 1971 was not binding on him since it was not for the benefit of the minor or for necessity of the minor and no permission was also obtained from the court before the sale in terms of S.8(2) of the Hindu Minority and Guardianship Act. the plaintiff was hence entitled to ignore the sale deed executed by his father and entitled to claim his share on partition. Defendant No.3 supported the claim of the plaintiff. But defendant No.4 challenged the right of the plaintiff to claim a partition. He contended that the legal guardian of the plaintiff who was a minor at the relevant time was the first defendant his father. The property was sold for consideration and it was supported by bona fides. Defendant No.3 supported the claim of the plaintiff. But defendant No.4 challenged the right of the plaintiff to claim a partition. He contended that the legal guardian of the plaintiff who was a minor at the relevant time was the first defendant his father. The property was sold for consideration and it was supported by bona fides. The suit is filed without bona fides and the plaintiff is not entitled to a share as claimed. Defendant No.6 contended that the plaintiff not having taken steps to get the sale deed executed by the guardian set aside, the suit was not maintainable. She had effected improvements in the property and the suit was filed with a view to try and grab the property. The suit was not bona fide. The trial court held that plaintiff being the son of the first defendant and the parties being Thiyyas of Calicut governed by Hindi Mitakshara Law, the plaintiff was entitled to a share in the property that was set apart in partition to the share of the branch of the first defendant. The trial court further held that Ext.,B-1 assignment executed by the father as guardian of the minor plaintiff was only voidable and since the same was not sought to be got set aside, the plaintiff was not entitled to claim a share in that property by ignoring the sale. The trial court thus dismissed the suit. On appeal by the plaintiff, the lower appellate court held that sanction under S.8 (2) of the Hindu Minority and Guardianship Act was not necessary for the sale of the property. After referring to some relevant decisions the Appellate Court held that alienations effected by the legal guardian father of the plaintiff was only voidable and it required to be set aside. Since there was no prayer for setting aside the deed, the plaintiff was not entitled to relief and the trial court was justified in dismissing the suit. It is this decree that is challenged in this second appeal. 3. The substantial questions of law formulated in the memorandum second appeal were the following: "(1) Whether sanction of the court is necessary for alienating the propertyof the minor by his natural guardian father under the Hindu Minority and Guardianship Act and whether such alienation under Exhibit B-1 is void under the aforesaid Act. 3. The substantial questions of law formulated in the memorandum second appeal were the following: "(1) Whether sanction of the court is necessary for alienating the propertyof the minor by his natural guardian father under the Hindu Minority and Guardianship Act and whether such alienation under Exhibit B-1 is void under the aforesaid Act. (2) Whether Exhibit B-1assignment deed is void or voidable and whether it is binding on the plaintiff under law. (3) Whether, in the absence of any legal necessity or any benefit to plaintiff, the father of the plaintiff was competent and right to sell the right of the minor over the property. (4) Whether the plaintiff can seek for partition of his share in the property after avoiding Exhibit B-l assignment under law. (5) Whether the Defendants have proved any legal necessity or benefit to the plaintiff under Exhibit B -1 assignment as required under law. (6) Whether the suit is maintainable without a prayer for setting aside Exhibit B-1assignment deed under law. (7) Whether the suit for partition itself takes in and implicit in itself the prayer for setting aside Exhibit B-l assignment under law. (8) Is the court below committed illegality in dismissing the appeal of the of the plaintiff." This Court issued notice on the above substantial questions of law formulated while admitting the Second Appeal in terms of S.100 of the Code Civil Procedure The questions that have therefore to be answered in this Second 4. The first question is whether sanction of the court is necessary under the Hindu Minority and Guardianship Act for the alienation of the property of the minor by his father. Though S.5 of the Act provides for overriding 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 the Act. S.6 of the Act makes it clear that that Act applies only in respect of minor's property excluding his or her undivided interest in joint family property. The case of the plaintiff is that the property belongs to the joint family consisting of his father and his descendants and the property allotted to the share of the father under Exhibit A-l partition enured to the undivided family. The case of the plaintiff is that the property belongs to the joint family consisting of his father and his descendants and the property allotted to the share of the father under Exhibit A-l partition enured to the undivided family. Going by this case, it is clear that S.8 of the Hindu Minority and Guardianship Act does not have application in the case on hand. The lower appellate court has also held that the property being an undivided share of the minor, S.8(2) of the Act has no application. The appellate court has relied on the decision of this Court in Sandeep v. Sarojini Nossiar 1990 (1) KLJ 625 LR 33 in support. We find that the position adopted by the lower appellate court is justified and substantial question of law No. 1 has to be answered in the negative and against the plaintiff, to the effect that no sanction under S.8(2) of the Hindu Minority and Guardianship Act is necessary for execution of the deed. 5. The logical consequence of_the finding as above is to hold that the assignment deed Exhibit B-l executed by the legal guardian of the minor, namely, his father, is voidable and not void. It would have been open to the minor plaintiff to establish that the sale was not binding on him by establishing the elements required in that behalf. But the substantial question of law No. 2, in the circumstances only to be answered against the plaintiff to the effect that the deed Exhibit B-1 is only voidable and not void. 6. This takes to substantial question of law No.6 formulated.That -question relates to whether the suit is maintainable without a prayer for setting aside the assignment deed. The plaintiff has proceeded on the basis that a prayer for setting aside the transaction is not necessary. Since we have held that the transaction is only voidable, the lower appellate court has, in our rightly relied on the Full Bench decision in Sankaranarayana Pillai v. Kandasamia Pillai AIR 1956 Madras 674 and the decisions of this Court in Beeyyathumma v. Moideen Haji 1958 KLT 602 and Mathew v. Ayyappankntty 1962 KLT 61 in support of his conclusion as above. The recent decision of the Supreme Court in Viswambar v. Laxminarayan 2000 (6) SCC 163 also supports this position. The recent decision of the Supreme Court in Viswambar v. Laxminarayan 2000 (6) SCC 163 also supports this position. In the light of the position that the transaction is only voidable and it is open to the plaintiff to show that it is not binding to him and have it set aside, we find that the legal position adopted by the lower appellate court is the correct one. This question is answered against the appellant. 7. Substantial question of law No. 7 as to whether the suit for partition itself could be said to take in a prayer for setting aside the assignment deed, has also to be answered against the plaintiff in view of our finding that the transaction can be treated only as voidable and not void. Once a transaction is held to be voidable, a mere suit for partition or an act of avoidance by the plaintiff may not be sufficient. The observations of Dr. Justice V. R. Krishna Iyer (as he then was) in Santha v. Cherukutty 1972 KLT 1051 cannot be of help to the plaintiff in view of the fact that the transaction impugned here was one entered into by his legal guardian, a Hindu Mitakshara father in respect of the undivided share of his minor son and the Hindu Minority and Guardianship Act does not have application. 8. Substantial questions of law Nos. 3 and 5 relate to the question whether the transaction of sale entered into by the father is valid and supportable to the extent of the share of the minor son. The lower appellate court has found on an appreciation of the evidence in the case that in the totality of circumstances, the sale is beneficial. It was found that the major portion of the properly covered by the sale deed, was outstanding with the tenants and that it was only fetching a meagre income. The plaintiff and his parents were residing in Kannur and the property is situated in Kozhikode and the income from the property was not sufficient to make it worthwhile for the family residing in Kannur, to come over to Kozhikode for cultivating the property or for taking income therefrom which itself was not shown to be substantial. The plaintiff and his parents were residing in Kannur and the property is situated in Kozhikode and the income from the property was not sufficient to make it worthwhile for the family residing in Kannur, to come over to Kozhikode for cultivating the property or for taking income therefrom which itself was not shown to be substantial. On an over all assessment of the situation, though the sale could not be supported on the ground of necessity as such, it could not be termed to be not for the benefit of the family. Since another property was intended to be purchased in the circumstances, it could be considered that the transaction was for the benefit of the minor. 9. But one aspect has not be noticed here an amount of Rs. 1,987 was due to the minor plaintiff and defendant No.3 in the suit who was also a minor at that time payable with interest at the rate of 6 per cent per annum when another item of property was to be purchased in the name of minors. The amount was not tendered by the purchaser at all. According to the purchaser, the contesting defendant, this was because the father of the plaintiff never intimated them that he was going to purchase a property and that the amount may be paid. Even then, the purchaser could have deposited the money or tendered the same. But the fact that the amount has not been paid so far, is by itself not a ground to enable the plaintiff to ignore the transaction altogether. We think that it would be appropriate and in the interests of justice to make a provision for payment of that amount to the plaintiff and defendant No. 3 in the circumstances of the case Based on that fact alone a decree for partition cannot be granted. 10. Substantial question of law Nos. 4 and 8, general in nature, have also to be answered against the plaintiff - appellant in view of our answers as above. 11. Thus, we find that no substantial error has been committed by the lower court warranting our interference in the Second Appeal in exercise of our jurisdiction under S.100 of the Code of Civil Procedure. But we do find that a sum of Rs. 11. Thus, we find that no substantial error has been committed by the lower court warranting our interference in the Second Appeal in exercise of our jurisdiction under S.100 of the Code of Civil Procedure. But we do find that a sum of Rs. l, 987 due to the plaintiff and defendant No. 3 was never tendered by the purchaser though reserved with him for payment to the plaintiff and defendant No. 3. Of course, on the strict terms of Exhibit B-l, the purchaser may have a good answer when he stated that the father of the plaintiff never intimated him that he had entered into an agreement to purchase another property for the minor and did not call upon him to pay the money. But taking note of the circumstances as a whole, we think that the trial court and the lower appellate court were not justified in dismissing the suit even without providing for payment of the sum reserved in deed with interest. Since essentially the plaintiff is failing on a technical ground, we feel that, all the attendant circumstances should be taken note of to give an equitable relief in the present suit itself regarding the amount reserved with the vendee Exhibit B-1. In that situation, we think that in equity, a decree, ought to be granted to the plaintiff and defendant No. 3 for the recovery of a sum of Rs.10,000 from defendant Nos. 4 to 6 charged on the property and providing for interest thereon in case defendant No. 4 or defendant No. 6, the assignee of a portion from defendant No. 4, do not deposit the amount in the trial court within a period of four months from this date. 1 12. While therefore, substantially dismissing the Second Appeal in. confirmation of the Judgments and decrees of the courts below, we grant the plaintiff and defendant No. 3 a decree for recovery of a sum of Rs. 10,000 from defendant Nos, 4 and 6 charged on the entire property. The liability of defendants 4 and 6 inter se will be proportional to the extents held by them. If defendant No. 4 or defendant No.6 deposits the amount of Rs. 10,000 four months form today in the trial court, for payment equally to the plaintiff and defendant No. 3, the said amount will not carry any interest. The liability of defendants 4 and 6 inter se will be proportional to the extents held by them. If defendant No. 4 or defendant No.6 deposits the amount of Rs. 10,000 four months form today in the trial court, for payment equally to the plaintiff and defendant No. 3, the said amount will not carry any interest. But in case defendant No.4 or 6 fails to deposit the said amount in the trial court within four months from this date, the said amount will carry interest at the rate of 10 per cent per annum from the expiry of four months form today until its recovery charged on the property. The parties are directed to suffer their respective costs.