IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 RSA.No. 587 of 2010() -------------------------------- AS.125/2006 of III ADDL. DISTRICT COURT, KOZHIKODE. OS.123/2003 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------------------ 1. AMINABI, AGED 52, D/O.LATE UTHANKUTTY, NADUVATTOM, NORTH BEYPORE, NADUVATTOM AMSOM AND DESOM, KOZHIKODE. 2. KADEESABI (DECEASED). 3. P.P. SAMEENA, AGED 36, D/O.KADEESABI, `NIYAS MANZIL', THODUKAPADAM PARAMBA, BEYPORE, KOZHIKODE. 4. P.P. SAHIDA, AGED 33, D/O.KADEESABI, `NIYAS MANZIL', THODUKAPADAM PARAMBA, BEYPORE, KOZHIKODE. BY ADV. SRI.SRINATH GIRISH, SRI.E.NARAYANAN. RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. PATHEYI UMMA, W/O.LATE ITHAMKOYA, RESIDING AT `NAVAS NIVAS' THARAYANGAL, PUTHIYAPALAM, CALICUT-2. 2. MUSTHAFA, S/O.LATE ITHAMKOYA, RESIDING AT DO. 3. HAMEED, S/O.LATE ITHAMKOYA, RESIDING AT DO. RSA.No. 587 of 2010 4. LATHEEF, S/O.LATE ITHAMKOYA, RESIDING AT DO. 5. HASSAN KOYA, S/O.LATE ITHAMKOYA, RESIDING AT DO. 6. LAILA, D/O.LATE ITHAMKOYA, RESIDING AT DO. 7. ALIKOYA, S/O.LATE ITHAMKOYA, RESIDING AT DO. 8. SULAIKHA, D/O.LATE ITHAMKOYA, RESIDING AT DO. 9. RAHIYANATH, D/O.LATE ITHAMKOYA, RESIDING AT DO. 10. SHANAVAS, S/O.LATE ITHAMKOYA, RESIDING AT DO. 11. NASEER, S/O.LATE ITHAMKOYA, RESIDING AT DO. BY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2010, THE COURT ON 14/06/2010 DELIVERED THE FOLLOWING: RSA.No. 587 of 2010 ORDER ON I.A. NO.1262/2010 IN R.S.A. NO.587/2010 DISMISSED 14/06/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 587 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of June, 2010. JUDGMENT Plaintiffs are the appellants. The suit was one for partition. 2. According to the plaintiffs, the plaint schedule property originally belonged to Kallungal Alikoya and consequent on his death the plaint schedule property devolved on his legal heirs and the plaintiffs are the co-owners of the plaint schedule property. While the plaintiffs were minors, their brother Imbichikoya executed a relinquishment of their shares in favour of another son on his own behalf and also acting as the guardian of the minor plaintiffs. The plaintiffs characterized the document as void and therefore according to them no rights flow from such a document. The suit was laid claiming 14/152 shares in the plaint schedule property. RSA.587/2010. 2 3. The defendants resisted the suit. It was admitted that the property originally belonged to late Kallungal Alikoya. But they disputed that the plaintiffs are the co-owners of the disputed property. All the legal heirs including the plaintiffs had released their rights to the predecessor in interest of the defendants and the plaintiffs were properly represented by a guardian. They were under the guardianship of the eldest son of Alikoya, namely, Imbichikoya and he was competent to execute the deed on their behalf. The consideration received was utilised for the benefit of the minors. At any rate, they contended that the claim made by the plaintiffs is barred by limitation. On the basis of these contentions they prayed for a dismissal of the suit. 4. Both the courts below have found that even assuming that the brother of the plaintiffs, namely, Imbichikoya was incompetent to execute the release deed for and on behalf of the then minor plaintiffs, still the RSA.587/2010. 3 plaintiffs could not succeed. The courts below have found that the so-called deed was executed in the year 1960 and the suit was filed in the year 2003, ie., 43 years after the execution of the deed by Imbichikoya. The trial court found that if as a matter of fact the plaintiffs are of the opinion that the deed is a void one, they would have taken adequate steps known to law and having not done so, the claim is barred. The appellate court had also considered this issue and found that even if the document is void, since it is executed by the defacto guardian, the plaintiffs cannot simply ignore the same. The lower appellate court has rightly observed that there is nothing which prevents the minors from ratifying such a deed after attaining majority and viewed from that angle, it is necessary for the plaintiffs to have the document set aside. The lower appellate court also noticed that they cannot simply ignore the deed and sue for partition alone. Accordingly both the courts below found that the plaintiff is not entitled to any relief. RSA.587/2010. 4 5. Learned counsel appearing for the appellants pointed out that the courts below have erred in law in holding that the plaintiffs are not co-owners. Having found that the documents executed in favour of the defendants is void in law, the plaintiffs are entitled to the reliefs as claimed in the plaint. 6. It is difficult to accept the plea of the learned counsel for the appellants. As rightly noticed by the lower appellate court, though generally it could be said that the deed executed by the defacto guardian is a void document, it is the option of the minor that he may ratify the deed after attaining majority. It is not in dispute that the both the plaintiffs have attained majority long ago. For the reasons best known to them, they have not taken any steps to have the deed set aside. In fact they stood by and let the time to pass. In the meanwhile, the defendants have effected improvements in the property. It cannot be disputed that the defendants have been asserting independent rights over the suit property in derogation of the rights of all other RSA.587/2010. 5 persons including the plaintiffs. At no point of time, the plaintiffs asserted any manner of right over the suit property. Both the courts below have found the claim of the plaintiffs that they had shared profits from the property is without basis and there is no evidence in that regard at all. On the other hand, the finding of the courts below is that the defendants have been treating the property as their own to the exclusion of all others. One cannot omit to note that the suit has been laid 43 years after the deed. One cannot also omit to note that the plaintiffs had attained majority long ago. One fails to understand what prevented them from taking steps for setting aside of the document soon after attaining majority. The suit was instituted only in the year 2003. At any rate, they had not sought for cancellation of the document executed by the defacto guardian in favour of the defendants. These are the facts which persuaded the courts below to hold against the plaintiffs. There is nothing to show that the finding of the courts below are perverse or not warranted on the basis of the materials on record. RSA.587/2010. 6 The result is that this Second appeal is without merits and it is liable to be dismissed. Accordingly this Second Appeal is dismissed in limine. P. BHAVADASAN, JUDGE sb.