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2012 DIGILAW 398 (KER)

K. P. MANI v. MALU AMMA

2012-04-10

THOMAS P.JOSEPH

body2012
JUDGMENT Plaintiffs and the 6th defendant in O.S.No.84 of 2006 of the court of learned Additional Munsiff, Kozhikode-I are the appellants, aggrieved by that part of the judgment and decree of learned Additional Sub Judge-I, Kozhikode in A.S.No.185 of 2009 to the extent that claim of 2nd appellant/2nd plaintiff and 6th defendant for partition of the suit property was not allowed. 2. The suit property belonged to one Perachan as per kanam assignment deed No.2636 of 1927. On the death of Perachan, the lease hold right devolved on his sons, Lakshmanan and Raghavan. The said Raghavan died bachelor. Thus the entire property belonged to Lakshmanan. On the death of Lakshmanan, plaintiffs and other legal heirs acquired right over the property. Plaintiffs claimed that they have 2/6th shares in the suit property. While so, their sister, Syamala assigned her 1/6th share to Prabhakaran Nair and Sathiyamma as per document No. 595 of 1974. That was followed by the mother of appellants/plaintiffs and 6th defendant executing release deed No.819 of 1994 (Ext.B7) in favour of Prabhakaran Nair. Appellants/plaintiffs say that at the time Ext.B7 was executed, themselves and 6th defendant were minors and that apart, 1st appellant/1st plaintiff was insane. But, it is without getting permission of the court that the mother had executed Ext.B7, release deed and hence it is not valid RSA No.455 of 20122 or binding on plaintiffs and 6th defendant. Hence they claimed partition of the suit property ignoring Ext.B7. Defendants 1 to 5 contended that suit is barred by limitation. They also contended that Ext.B7, release deed was executed by the mother being the natural guardian and karanavathy of the Tarwad for the welfare of her minor children (appellants). 3. Trial court accepted that plea of defendants and dismissed the suit. In appeal, learned Sub Judge held that so far as 1st appellant/1st plaintiff is concerned, evidence revealed that she was insane and hence without getting permission of the court the mother was not competent to execute Ext.B7, release deed concerning the share of 1st appellant/1st plaintiff. Hence, notwithstanding Ext.B7, 1st appellant/1st plaintiff was found entitled to get partition and separate possession of her 1/6th share in the suit property. 4. Hence, notwithstanding Ext.B7, 1st appellant/1st plaintiff was found entitled to get partition and separate possession of her 1/6th share in the suit property. 4. Turning to the claim of appellants 2 and 3/2nd plaintiff and 6th defendant, first appellate court held that even if it is assumed that release of their share in the suit property as per Ext.B7 was not for their welfare or on account of any family necessity, appellants 2 and 3/2nd plaintiff and 6th defendants are not entitled to challenge that release deed to the extent it concerned their share for the reason that the suit is time barred. First appellate court pointed out that the 2nd appellant/2nd plaintiff and 3rd appellant/6th defendant ought to have filed the suit to set aside Ext.B7 to the extent it concerned them within three years of their attaining majority and that having not been done appellants 2 and 3 are not entitled to make any claim over the property. 5. Learned counsel has contended that the finding of first appellate court that the claim made by appellants 2 and 3 is barred by limitation cannot be sustained. 6. Though there was some cleavage of opinion in this Court as to whether a transaction in violation of Sec.8(3) of the Hindu Minority and Guardianship Act, 1956 (for short, "the Act") is void or voidable, that controversy is settled by the Full Bench in Ramadas Menon v. Sreedevi ( 2004 (1) KLT 323 ) relying on the decision of the Supreme Court in Viswambhar & others v. Laxminarayan ( (2001) 6 SCC 163 ). It is held that an alienation of immovable property by the natural guardian without obtaining permission of the Court is only voidable (and not void) and that there should be a prayer to set aside such alienation. 7. It is not disputed that Meenakshy, mother of appellants 2 and 3 was their natural guardian. Hence, assuming that she has alienated the share of appellants 2 and 3/2nd plaintiff and 6th defendant without getting permission of the court, the transaction (Ext.B7) to the extent it concerned appellants 2 and 3 is only voidable and not void and hence appellants 2 and 3 were bound to get Ext.B7 to the extent it concerned them set aside for which the period of limitation prescribed is three years from the date on which appellants 2 and 3 attained majority. Admittedly the present suit is filed much beyond the said period of three years in which case defendant 1 to 5 are justified in their contention that the suit to the extent it concerned appellants 2 and 3 is barred by limitation. The view taken by the first appellate court concerning appellants 2 and 3 is correct. 8. In that view of the matter I do not find any substantial question of law requiring admission of this Second Appeal. Second Appeal is dismissed. All pending interlocutory applications will stand dismissed.