JUDGMENT : After the death of one Christhumony @ Rajendran, his two minor children came up with the suit in O.S.No.277 of 1999 before the Principal Munsiff's Court, Neyyattinkara through their next friend, the uncle, claiming 3/5th share over the property left out by their deceased father and for setting aside Ext.A1 sale deed executed by their mother representing the minor children in respect of 1 acre 24 cents in favour of defendant Nos.1 and 2. The mother was impleaded in the suit as defendant No.3. During the pendency of the suit, defendant No.1 passed away and the legal heirs were impleaded as additional defendant Nos.4 and 5. Defendant No.2 was recorded as one of the legal heir. The suit was decreed by the trial court and Ext.A1 document was set aside in so far as 3/5th fractional interest of the minor children over the property is concerned and granted a preliminary decree for partition. It was taken up in A.S.No.202 of 2003 before the Sub Court, Neyyattinkara wherein the decree was confirmed by its judgment and decree dated 7.11.2008. Aggrieved by the abovesaid decree and judgment, defendant Nos.2, 4 and 5 came up with this second appeal. Defendant No.3 remained exparte both in the trial court and in the first appellate court. 2. The following questions came up for consideration: a. What would be the status of a minor child, one of whose parent is a Hindu by profession, for the purpose of intestate succession? b. Whether the constructive notice under Section 3 of the Transfer of Property Act would operate against a minor when his next friend had opted to challenge a document of alienation of the assets of minor? c. When a document of alienation is put under challenge either by the minor or through his next friend, are they not bound to return the benefit, if any, obtained under the same transaction? d. What is the legal consequences of subsequent change in the benefit conferred on a minor under a transaction of document of alienation and whether the subsequent change over the benefit conferred on minor would make any difference in the legal position in the absence of exercise of option either to accept it or to reject it and within what time the option can be exercised? e. What would be the legal impact of non-preservation of benefit conferred on the minor under a transaction of document of alienation and what would be the legal effect, if the benefit became non-returnable due to the action or inaction either by the minor or by the guardian/next friend, while exercising the option to challenge the document of alienation? f. What would be the legal effect on acquisition of right, title or interest over immovable property, either fractional or in whole, on an earlier document of transfer asserting full right, title and interest over the property? 3. The dispute centers around execution of Ext.A1 sale deed pertaining to the plaint schedule property having an extent of 1 acre 24 cents. There is no much dispute that the said property originally belonged to and left out by deceased Christhumony @ Rajendran and that the plaintiffs are the two minor children born to him in the wedlock with defendant No.3. Their status as legal heirs of deceased Christhumony @ Rajendran is not in dispute. 4. The dispute is pertaining to the entitlement of plaintiffs to get a fractional interest over the said property and to set aside the said document of transfer Ext.A1 in so far as their fractional interest over the property is concerned. The suit was decreed by the trial court as well as the first appellate court by granting a preliminary decree of partition allowing the plaintiffs 3/5th share over the property. 5. The allotment of 3/5th share is under challenge mainly on the reason that Christhumony @ Rajendran was a Hindu at the time of his death and out of his three sons, Celin passed away. He was also a Hindu by profession at the time of his death. 6. Ext.B1 notification was produced to show that Christhumony @ Rajendran during his life time had relinquished his faith in Christianity and converted to Hinduism after complying with all the legal mandates and it was also notified under Ext.B1. Though a case of further conversion to Christianity was advanced by the minor children no document was produced in that behalf. Ext.B1 notification would sufficiently show that he had relinquished his faith in Christianity and converted to Hinduism in compliance with all the legal mandates and as such, there should be cogent evidence to show the further conversion, if any, for which no satisfactory evidence was adduced. Ext.B1 notification would sufficiently show that he had relinquished his faith in Christianity and converted to Hinduism in compliance with all the legal mandates and as such, there should be cogent evidence to show the further conversion, if any, for which no satisfactory evidence was adduced. So, it can be safely concluded that Christhumony @ Rajendran was a Hindu at the time of his death. Hence, he is governed by Section 8 of the Hindu Succession Act in so far as the properties which were left out by him are concerned. 7. At the time of his death his wife, defendant No.3, was alive and his mother was also alive besides his three sons. All of them would come under the purview of clause I heir to Section 8 of the Hindu Succession Act. So, his property would go to his mother, wife and three sons in equal shares by which they will get 1/5th share each. 8. In so far as his son Celin who passed away during his minority is concerned, it was alleged that he is the son born to Christhumony @ Rajendran in his wedlock with defendant No.3, Sumabhai alias Subhadra, who is admittedly a Christian by religion. It was also alleged that the marriage between Christhumony @ Rajendran and defendant No.3, Sumabhai alias Subhadra, was solemnized in accordance with the religious ceremonies and rites of Christian community, based on which, it was submitted that the children born in their wedlock should be and must be considered as belong to Christian religion. It is the further case of plaintiffs that he had baptized and hence belonged to Christian religion. Exts.A2, A3 and A4 documents were produced in support of the said contention. Ext.A2 is only a marriage certificate showing solemnization of marriage between Christhumony @ Rajendran and defendant No.3. Exts.A3 and A4 are the certificates issued in the letter-pad of C.S.I. Church, Moolakonam signed by the priest. In Ext.A3 it is stated that he is the child born to Smt. T. Sumabhai (defendant No.3) and that she is a regular baptized member of Moolakonam C.S.I. Church. Nothing mentioned with respect to the minor children or their status either as Christian or otherwise in the said certificate. In Ext.A3 it is stated that he is the child born to Smt. T. Sumabhai (defendant No.3) and that she is a regular baptized member of Moolakonam C.S.I. Church. Nothing mentioned with respect to the minor children or their status either as Christian or otherwise in the said certificate. Ext.A4 is another certificate issued by the priest in a letter-pad stating that R.S. Dilin and R.S. Praveen (plaintiffs 1 and 2) are the regular baptized members of Moolakonam C.S.I. Church. With respect to the status of Celin, nothing mentioned in the abovesaid certificate. No document was produced either to show any baptism conducted or observance of religious requirement in relation to Celin or his conversion to Christianity. By virtue of Explanation (b) to Section 2(1) of Hindu Succession Act, any child legitimate or illegitimate, one of whose parent is a Hindu, would be a Hindu for the purpose of application of the said Act and hence, Celin by virtue of Explanation (b) to Section 2(1) of Hindu Succession Act, 1956 is a Hindu governed by the provisions contained in the said Act. In any view of the matter, he can only be a Hindu by religion at the time of his death and hence, governed by Section 8 of the Hindu Succession Act. He died intestate, issue-less and unmarried and as such, the only legal heir who would come under clause I to Section 8 is none else his mother, the sole legal heir, to inherit his estate, more specifically, the 1/5th share obtained by devolution on the death of his father over the property left out. Thereby, defendant No.3 will get 2/5th share over the property left out by her husband Christhumony @ Rajendran. 9. Ext.A1 sale deed was executed by defendant No.3 along with Thankamma, the mother of Christhumony @ Rajendran, and as such, what is conveyed under Ext.A1 document would come to 3/5th share. 10. It was submitted that at the time of execution of Ext.A1 sale deed Celin was very much alive and as such what is conveyed under Ext.A1 document comes to only the share of two executants, 2/5th share over the property. But Ext.A1 sale deed was executed by the executants asserting that they had full right, title and interest over the property. But Ext.A1 sale deed was executed by the executants asserting that they had full right, title and interest over the property. If that be so, when they subsequently acquire fractional right over the property by succession or otherwise, the doctrine of feeding the grant by estoppel would come into play. As such, Ext.A1 document would stand as valid in so far as the extent of property, right, title and interest of the executants are concerned. Thus, Ext.A1 document would intake 3/5th share over the property. 11. The suit was instituted by the minor plaintiffs through the next friend, their uncle, before attaining majority. It was submitted by the appellants that the benefits which were acquired by the minors by virtue of the document under challenge, which was executed during minority, or under same transaction shall be relinquished while exercising option to challenge the document of alienation, otherwise, no suit can be maintained for setting aside the said document. It is true that the document of alienation of minor's interest over the property would stand as voidable at the option of minors. But, minor should relinquish all the rights and benefits obtained under the same document or transaction while exercising the option to challenge the document. Section 35 of the Transfer of Property Act is extracted below for reference:- “35. Election when necessary.- Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.” 12. The legal position was settled in Chacko v. Sreeja ( 1991 (1) KLT 191 ) wherein it was held that when a transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it and in the latter case, he shall relinquish the benefit so conferred and the benefit so relinquished shall revert to the transferor. Section 64 of the Contract Act provides that the party rescinding a voidable contract shall, if he has received any benefit thereunder from another party to such contract, restore such benefit so far as he may be, to the person for whom it was received. It was held in that decision that a combined reading of both these Sections would make the party liable to surrender whatever may be the benefit acquired under the document when he chooses to challenge it. 13. From the recital in Ext.A1 sale deed, it is clear that three other properties were purchased by utilizing the sale proceeds of document of alienation, Ext.A1, in the name of minors through defendant No.3, their mother, who represented the minors in the said document. Those documents were also produced and let in evidence as Exts.A11 and A12. Those documents and its contents would show that 12 cents+9 cents+19 cents were purchased under Exts.A11 and A12 documents for consideration of `12,000/-, `20,000/ and `18,000/-respectively. It is stated in the document that the sale proceeds under Ext.A1 document were utilized for purchasing the abovesaid three set of properties in the name of minors and that the said properties were purchased on the same day, that is on 5.9.1991. These properties were purchased in the name of minors, plaintiffs 1 and 2, through their mother, the defendant No.3. Exts.A11 and A12 were also executed on the same day on which Ext.A1 sale deed was executed, i.e. on 5.9.1991. On the other hand, it was submitted by the plaintiffs that no benefit was obtained by them under the abovesaid purchase of three items of properties and that the mother, defendant No.3, had sold the abovesaid properties subsequently, that too in a representative capacity under Ext.A9 document and purchased another property in the name of minors under Extr.A7 document on 28.10.1994. 14. 14. The subsequent alienation of three properties by the mother representing the minors and purchase of another property in the name of minors under Ext.A7 document has no much relevance in adjudging the benefit, if any, acquired by the minors under the transaction in Ext.A1 document. What is relevant is whether any benefit was acquired by the minors under the same transaction either on the date of transaction or subsequently and if any benefit was acquired it has to be relinquished while exercising the option to challenge the document of alienation, irrespective of whether the benefit acquired had been subsequently gone out of the hands of minors either by the action of next friend or guardian or any other person other than the person who had given the benefit. The sale consideration under the document of alienation was utilized for purchasing three other properties in the name of minors. Whether the abovesaid properties were subsequently alienated or not is not a matter of concern while adjudging the benefit if any obtained by the minors under the transaction in which a document of alienation was executed. The subsequent sale of three items of immovable properties purchased by utilizing the sale proceeds of the document of alienation has not been challenged by the minors by themselves or through their next friend who filed the present suit. The three set of properties which were purchased by utilizing the funds under Ext.A1 sale deed were also scheduled in Ext.A1 document as item Nos.2 to 4 for indemnifying the loss, if any, occasioned. When there is a registered document and when registration was completed as mandated under the law in force and duly entered in the register kept for that purpose, it would amount to notice to all beneficiaries under the document. Of course, as far as minors are concerned, there cannot be a constructive notice regarding purchase of three set of properties in their name due to minority even by virtue of Section 3 of the Transfer of Property Act. But the suit was instituted by their next friend and if that be so, a notice to the next friend would be sufficient notice to the minors when the next friend had opted to bring up the law in motion by instituting a suit. But the suit was instituted by their next friend and if that be so, a notice to the next friend would be sufficient notice to the minors when the next friend had opted to bring up the law in motion by instituting a suit. The authority of the next friend to act for and on behalf of the minors by virtue of Order XXXII of the Code of Civil Procedure and the binding nature of the action and inaction on the part of next friend, duly appointed with leave of court, on minors and their estate would give rise the necessary corollary that the minors cannot set aside the actions of the next friend except on the ground under Rule 3A of Order XXXII of the Code of Civil Procedure by causing prejudice in obtaining a decree adverse to the interest of minors wherein the next friend is having an interest on the subject matter. When the next friend, with leave of court, put the law in motion by instituting a suit for protecting the interest of minors on a specific cause of action, the actions taken by the next friend would be valid as if it were done by the minors after attaining majority except for the purpose of Rule 3A of Order XXXII of the Code of Civil Procedure. With respect to the specific cause of action wherein a suit was brought up by the next friend, the minors are bound by all actions and omissions and the omission on the part of the next friend to do a particular act and the consequences thereof cannot be avoided except under Rule 3A of Order XXXII CPC, the corollary is that the next friend is duty bound to protect the interest of minors in the litigation, cannot avoid notice of any acts or deeds adverse to the interest of minors if it forms an inseparable part of subject of litigation arising on the same cause of action. The subsequent alienation made by the mother in a representative capacity alienating the three set of properties obtained in the name of minors and acquisition of another property in the name of minors has not been challenged by the next friend who represents the minors though he is duty bound to relinquish the benefit obtained by the minors while maintaining a suit of this nature for and on behalf of the minors. 15. The benefit acquired by the minors over the immovable property covered by the last purchase was also not relinquished. In fact, it is not capable of relinquishing the right under the said document as the last sale deed in favour of the minors was executed by some third persons. Even no willingness or undertaking was expressed to give up that property to defendant Nos.1 and 2 in consideration of the benefit acquired by the minors under the transaction in which the document of alienation was effected. The non-challenge of subsequent alienation of three set of immovable properties acquired in the name of minors by the next friend who put the law in motion by instituting a suit, is so fatal to the present suit. In short, the subsequent sale of three set of properties purchased in the name of minors, offered as security for indemnifying any loss that may be occasioned due to failure of Ext.A1 sale deed, by the third defendant mother in a representative capacity was not brought under challenge by the next friend who is duty bound to protect the interest of minors as he had opted to act as next friend of minors by putting the law in motion by instituting a suit of this nature. It is not at all necessary that the next friend should take up and agitate all issues relating to the properties and interest of minors and to act as guardian in all respects pertaining to all the assets of minors once he had chosen to act as next friend by instituting a suit on a particular cause of action, but bound to take all actions and to protect the interest of minors in that specific cause of action. While exercising the option to challenge the document of alienation on a specific cause of action, namely the execution of deed of alienation of minors' interest over an immovable property, it would intake the liability to return the benefits, if any, acquired in the name of minors which is separable, otherwise the very basis of cause of action and entitlement would come to an end by the operation of Section 35 of the Transfer of Property Act. The minors are bound (through their next friend who had already initiated action) to relinquish all the benefits obtained under the same transaction in relation to the date on which the transaction took place by putting the parties in their original position as far as possible for which the minors, the guardian or the next friend, as the case may be, are bound to preserve the benefits acquired under the same transaction, failure of which would result in forfeiture of right of election under Section 35 of the Transfer of Property Act and extinguishment of right option. When there is a subsequent creation of any encumbrance, transfer of title or interest over the benefit acquired, they are duty bound to challenge and protect the interest of minors so as to exercise their option when available and to return the benefit obtained under the same transaction. The non-challenge of subsequent document of alienation in respect of the benefit obtained in the name of minors, hence, itself constitute exercise of option by inaction accepting the benefit acquired thereunder. The omission to consider the factual scenario in reference to the legal position settled has resulted in miscarriage of justice. The suit ought to have been dismissed by both the trial court and the first appellate court and as such the appeal is to be allowed. In the result, the appeal is allowed by setting aside the decree and judgment of both the trial court as well as the first appellate court and the suit is dismissed. But considering the nature of the dispute, the parties are directed to suffer their respective cost of suit and both the appeals.