JUDGMENT N.K. Balakrishnan, J. 1. The legal representatives of the plaintiffs are the appellants. The suit was filed for prohibitory injunction, mandatory injunction and also to set aside documents. Recovery of possession of the two properties on the strength of title was also claimed. The trial court partly decreed the suit granting a prohibitory injunction restraining the defendants from entering into the plaint schedule property other than for ingress and egress to the respective properties allotted to them. The documents registered as 4240, 4241 and 4242 dated 11-12-1985 are found to be invalid and hence those documents were set aside. Though mandatory injunction was claimed pertaining to plaint B, C and D schedule property, that claim was disallowed. 2. In the appeal, the lower appellate court found that the plaintiffs have no right over the suit property. It was found that the eastern boundary of the plaint A schedule property is a river. Defendants 2 and 18 had put up a Chinese fishing net which is the plaint C schedule property. Plaint B and D schedule properties are the sheds alleged to have been put up by the 2nd defendant. It was found that the plaintiffs could not prove that they have got exclusive right over the suit property and so, it was held that the plaintiffs are not entitled to get the mandatory injunction as prayed for. It was held that "puduval pathivu" will be a part of the plaint A schedule property but in fact no claim was made by the plaintiff. The legal representatives of the plaintiffs have filed this Second Appeal. 3. The following substantial questions of law have been formulated in this Second Appeal:- 1) What is the law relating to guardianship of Minors among Christians in the erstwhile Cochin State ? 2) Is a document executed by the elder brother as guardian of the younger brother among Christians in the Cochin State in the absence of the any statute governing the subject void or voidable ? 3) Can the defendants 1 & 2 question the validity of Exts. B2 and A1 after such a long lapse of time when Acho and Bernad themselves during their lifetime had not chosen to challenge them during their lifetime ? 4. Should not they seek to set aside the documents within the period of limitation allowed by law ? 5. 3) Can the defendants 1 & 2 question the validity of Exts. B2 and A1 after such a long lapse of time when Acho and Bernad themselves during their lifetime had not chosen to challenge them during their lifetime ? 4. Should not they seek to set aside the documents within the period of limitation allowed by law ? 5. Are the courts below justified in law in non-suiting the plaintiffs as having no title in entirety when even defendants 1 & 2 have only contended that they are co-owners ? 4. The evidence would show that the property originally belonged to Bavu Pailoo. He has four sons Mersely, Grigory, Acho and Bernad. On the death of Bavu Pailoo the plaint schedule property devolved upon his four sons Mersely, Grigory, Acho and Bernad. The first defendant is the widow and defendants 2 and 3 are the children of Acho, one of the sons of Bavu Pailoo. The other three sons of Bavu Pailoo also died subsequently. It is contended by defendants 1 to 3 that they are the legal representatives of deceased Acho and so they are entitled to get ¼ share in the property left behind by Bavu Pailoo. 5. The plaintiffs are the daughters of Mersely, the eldest son of Bavu Pailoo. The first defendant contended that plaintiffs have no subsisting right over the plaint schedule property and even if they had any right that right was lost by ouster, adverse possession and limitation. It was also contended that the plaintiffs' father and Grigory the brother of Mersely had executed an assignment deed on 22-08-1089 M.E; in favour of one Varu Thomman. Varu Thomman later executed an assignment deed on 3-12- 1104 M.E. in favour of plaintiffs' mother. 6. The evidence would show that at the time of the assignment deed dated 22-08-1089 M.E. Bernad and Acho were minors but it was contended that they were represented by the elder brother Mersely. Mersely is the father of the plaintiffs. Defendants contend that Mersely had no legal right to create any document pertaining to the right of Acho and Bernad over the property which devolved upon them consequent to the death of their father Bavu Pailoo. It is also pointed out that Varu Thomman is the brother-in-law of Mersely and subsequently that property was obtained assignment from Varu Thomman. Defendants contend that Mersely had no legal right to create any document pertaining to the right of Acho and Bernad over the property which devolved upon them consequent to the death of their father Bavu Pailoo. It is also pointed out that Varu Thomman is the brother-in-law of Mersely and subsequently that property was obtained assignment from Varu Thomman. So according to the defendants, those two documents were fraudulently created by the plaintiffs' predecessor Mersely in order to defeat the claim of Acho and Bernad, the brothers of Mersely. Thus, the defendants contend that the assignment deed executed by the plaintiffs' predecessor Mersely in favour of Varu Thomman and the subsequent document obtained from Varu Thomman in favour of the plaintiffs' mother are invalid and inoperative. 7. The crucial point is whether Acho and Bernad could be represented by their elder brother Mersely. There is evidence to show that at the time of execution of assignment deed their father was not alive but their mother was alive. She was thus their natural guardian. The assignment deed executed by the brother in respect of the minors' share is void and as such the subsequent documents created based on that void document can have no legal effect, the respondents/defendants contend. 8. It is stated that the first defendant is residing in the house situated in the property. The second defendant had also put up separate residential building of his own and there is also a workshop in the plaint schedule property. It would appear that the legal representatives of the four sons Mersely, Grigory, Acho and Bernad were in possession of certain portions of the property. It is also in evidence that purchase certificates were obtained by some of the persons in occupation of respective plots from the Land Tribunal, but the purchase certificate so obtained by one of the co- owners will enure to the benefit of all the co-owners. In other words, one cannot claim absolute title in respect of those portions of property based on the purchase certificate since it is the admitted fact that the property originally belonged to Bavu Pailoo the father and on his death the property devolved upon the four brothers Mersely, Grigory, Acho and Bernad. 9. Much was argued on behalf of the appellants that since the assignment deed was executed on 1089 M.E., the present suit is hopelessly barred by limitation. 9. Much was argued on behalf of the appellants that since the assignment deed was executed on 1089 M.E., the present suit is hopelessly barred by limitation. But there is nothing on record to show that the minors were aware of the execution of the document at the relevant time or that they came to know of the execution of the document later so as to contend that period of limitation should not run from the date of knowledge of the execution of that document. That apart, when the document or assignment is null and void, no consequence would follow. If the document or assignment is treated as null and void then it has to be assumed that the legal representatives of Mersely, Grigory, Acho and Bernad were in joint possession of the property, though for the sake of convenience, they might be holding portions of the property and constructed houses in the respective plots. The fact remains that the entire property available for partition was actually jointly held by the legal representatives of the four sons mentioned above. It is also in evidence that defendants 1, 5 and 10 are the kudikidappukars of the property and they had purchased the kudikidappu right as per the orders of the Land Tribunal as evidenced by A6, A7 and A8. The four cents of property on the north-eastern corner was assigned to the 15th defendant and the remaining 69 cents is the plaint A schedule property. 10. As stated earlier, the first defendant is the wife of Acho, defendants 2 and 3 are their children. Fourth defendant is the wife of 2nd defendant and fifth defendant is the son of Grigory and 6th defendant is the wife of 5th defendant. 11. Appellants are claiming exclusive right over the property based on Ext.A1 assignment deed executed by Varu Thomman. Varu Thomman had obtained that property as per Ext. B2 assignment deed No. 1601/1089 M.E. Ext. B2 was executed by Mersely and Grigory the sons of Bavu Pailoo; Mersley representing the two minor brothers, Acho and Bernard. The question for consideration is whether brother was competent to act as the guardian of the two minors and execute the sale deed in respect of the minor's property. The evidence is clear on the point that Bavu Pailoo had four sons and also daughters. The question for consideration is whether brother was competent to act as the guardian of the two minors and execute the sale deed in respect of the minor's property. The evidence is clear on the point that Bavu Pailoo had four sons and also daughters. Daughters were given in marriage long ago after giving their share of property as 'Stridhanam' and hence as per Sec. 22 of Christian Successions Act, daughters were not entitled to inheritance. Thus on the death of Bavu Pailo his four sons Mersely, Grigory, Acho and Bernad were having equal right. Ext. B2, so far as it relates to the right of the executants, the major brothers are concerned, is valid to that extent. But so far as the right of Acho and Bernad, the document is null and void, the respondents contended. 12. The decision of the Division Bench of the Cochin High Court in Lona v. Raman Nambiar, XVIII CLR 656 has been referred to. That was a case where the minors' father was dead. The father died intestate. Hence it was held : "In the absence of evidence of any binding custom with regard to the guardianship of Christian minors in these circumstances, it is not possible to hold that any person can legally act as his guardian without an appointment by the court." The decision in Anna and Others v. Vakkao and Others - Vol. XXIV CLR 804 has also been referred to here. That was a case where the first defendant therein was not the guardian ad litem of the plaintiff who was a minor at the relevant time . It was held that in the absence of the father, if there are mother, brother or paternal uncle the mother alone is competent to act as the legal guardian and so the Full Bench recognized the right of the mother to act as the legal guardian and so the question as to whether others can act in her presence was not considered which was left open. 13. It is pointed out by the learned counsel for the respondents that in this case admittedly the mother was alive and so mother alone could act as the guardian of the minors. The decision in Sreekumaran Namboothiri v. Antony and Others - XXIV CLR 18 has also been cited by the learned counsel for the respondents. 13. It is pointed out by the learned counsel for the respondents that in this case admittedly the mother was alive and so mother alone could act as the guardian of the minors. The decision in Sreekumaran Namboothiri v. Antony and Others - XXIV CLR 18 has also been cited by the learned counsel for the respondents. In that case it was held that it is not uncommon where the community lives surrounded by Hindus that they absorb and adopt Hindu social ideals and look upon their customs in Hindu point of view. It was further held that the competency of a Christian brother to act as the guardian of his minor brother without special appointment in the presence of the mother is not a bare question of law only to be argued. It is a matter for definite pleading and the point should be decided after trying an issue raised regarding that question. 14. The learned counsel for the appellants would submit that it is not uncommon that an elder brother who was looking after the affairs of the minor acted as the guardian if that was the custom prevalent in that community and in that locality. But the learned counsel for the respondents would submit that there is absolutely no pleading nor is there any satisfactory evidence to show that there was any such custom prevalent in that community at the relevant time. When such a custom is not pleaded and no evidence is adduced, the argument at the belated stage cannot come to the rescue of the appellant. 15. Another Full Bench decision of the Cochin High Court Geeri Prabhu and Others v. Thomman and Others - XXI CLR 451 was also relied upon where the mother in the absence of the father was considered competent to act as the legal guardian of her minor children as regards their personal properties. The question as to whether the mother alone could act as a guardian and not the eldest brother or anybody else was expressly left open. Therefore, that also will not come to the help of the appellants to contend that the brother Mersely could act as the legal guardian of the minors Acho and Bernad so as to transfer their right in the property. Therefore, that also will not come to the help of the appellants to contend that the brother Mersely could act as the legal guardian of the minors Acho and Bernad so as to transfer their right in the property. In Sreekumaran Namboothiri's case (cited supra) it was observed that the Court has come across several documents in which the eldest brother acted as guardian of their minor brothers and so it was not an uncommon feature among the Christians in the State. The same was the view taken by the Calcutta High Court in Aminaddin and Others v. Tajaddin and Others - AIR 1932 Calcutta 538. In all the cases cited at the Bar it could be seen that whenever a plea was raised that it was not an uncommon feature among the Christians in the State in which the elder brother acted as the guardian of the minor brother, there was a plea regarding such a custom prevalent in that community in that locality. But here, no such custom was pleaded or proved. 16. The general principle is that the nearer excludes the remote. Therefore, when the mother was alive there was an exclusion so far as the brothers are concerned and hence the assignment deed executed by the brother in respect of the property of his minor brother is null and void. If the sale deed had been executed by the mother it should have been proved that it was for legal necessity in which case it would be a voidable document. Whereas in this case, the document was executed by the brother and as such it was null and void, especially, because no custom was proved or pleaded in this case. 17. In Geeri Prabhu's Case (supra), after the death of the father the mother acted as the guardian of the person and property of her minor children. Such a custom was in vogue for about 50 years. The custom so pleaded was accepted. So far as the case on hand is concerned, the aforesaid decision is not applicable since here it was the brother who acted as the guardian, that too, when the mother was alive. Such a custom was in vogue for about 50 years. The custom so pleaded was accepted. So far as the case on hand is concerned, the aforesaid decision is not applicable since here it was the brother who acted as the guardian, that too, when the mother was alive. The decision of the Full Bench in Oommen Punnoose and others v. Korathu Korathu and Others - 1951 KLT 223 also can have no application to the facts of this case since that was dealt with under the Cochin Guardianship Act, 1116 M.E. Ext. B2 transaction in this case was had long prior to the commencement of that Act. 18. Kanchi Kamamma and others v. Yerramsetti Appanna - AIR 1973 AP 201 ; Hari Satya Banerjee and others v. Mahadev Banerjee and Others - 1983 Calcutta 76 and Manu Pande and another v. Mt. Sukhlalia and Others - AIR 1958 Patna 79; were all cases in which Section 11 of the Hindu Minority and Guardianship Act was considered. However, in all the decisions cited supra including the decisions of the Cochin High Court pertaining to Christian Succession in the erstwhile state of Kochi it was held that the father is the natural guardian and in the absence of the father the mother alone can act as the guardian, and that too the alienation can be made only for necessity. In the case on hand no custom was pleaded nor was any satisfactory evidence adduced to show that there was a custom in vogue which entitled the brother to act as the guardian of the minor and to transfer the property of the minor. Therefore, I have no hesitation to hold that Ext. B2 sale deed executed by Mersely in favour of Varu Thomman is null and void and as such the assignment deed subsequently executed by Varu Thomman in favour of the plaintiffs' predecessor as per Ext. A1 is null and void and is of no consequence. If that be so , the plaintiffs are not entitled to claim exclusive right over the suit property. 19. It has already been found that all the four sons of Bavu Pailoo had ¼ share each in the said property. Since the plaintiffs are the legal heirs claiming under Mersely they are entitled to get ¼ share in the property. If that be so , the plaintiffs are not entitled to claim exclusive right over the suit property. 19. It has already been found that all the four sons of Bavu Pailoo had ¼ share each in the said property. Since the plaintiffs are the legal heirs claiming under Mersely they are entitled to get ¼ share in the property. Gregory's ¼ share, on change of hands came to vest in Mersely and thus his legal representatives are entitled to get a total of 2/4 share in the suit property. (Gregory who was then a major had assigned his ¼ share to Varu Thomman). The legal representatives of deceased Acho are to get ¼ share and the remaining ¼ share would go to the LRs of Bernad. 20. The suit was only for injunction and for recovery of possession on the strength of title. It was found that the plaintiffs are not exclusive owners of the property. Hence, the claim made by the plaintiffs was rightly disallowed by the lower appellate court reversing the finding to the contrary entered by the trial Court. I find no reason to differ from the view taken by the lower appellate court. 21. It was pointed out that the plaintiffs as well as the legal heirs of Acho and Bernad were in possession of portions of the property originally held by their predecessors. Hence to do complete justice to the parties, instead of driving the parties to another suit for partition I think that a preliminary decree for partition can be passed so as to give a quietus to the litigation. The learned counsel for the parties fairly conceded that if the court is so inclined, a preliminary decree can be passed. Hence, this Second Appeal is disposed of as follows:- The decree and judgment passed by the lower appellate court to the extent of denying injunction and recovery of possession are upheld. But a preliminary decree for partition is passed directing division of the suit property into four equal shares and to allot two such shares to the plaintiffs, one such share to the legal representatives of deceased Acho and the remaining ¼ share to the share of the legal representatives of Bernad. While effecting division, the plots shall be allotted, as far as possible, to the sharers as mentioned above taking into consideration the convenience of enjoyment. While effecting division, the plots shall be allotted, as far as possible, to the sharers as mentioned above taking into consideration the convenience of enjoyment. Any of the parties to whom share has been allotted can apply for passing the final decree.