IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 RFA.NO. 636 OF 2009() --------------------- {OS.459/2007 OF PRL.SUB COURT, THRISSUR} .................... APPELLANT/PLAINTIFF: --------------------------- LAKSHMI N.WARRIER AGED 20 YEARS, D/O. EDAKKUNNI WARRIATH RAMADAS WARRIER NADATHARA VILLAGE, DESOM, THRISSUR REPRESENTED BY POWER OF ATTORNEY HOLDER P.VOJAYARAGHAVAN, AGED 77 YEARS,S/O.KUMARAPURAM WARRIATH AMMINI WARRASIAR,ERAVIMANGALAM VILLAGE. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY SMT.NISHA G.THARAMAL RESPONDENT(S)/DEFENDANTS: ----------------------------------- 1. BALAKRISHNAN AGED 59 YEARS, S/O.MADHAVI WARASIAR RESIDING AT 'PRABHA' WARRIAM LANE THRISSUR VILLAGE, THRISSUR TALUK. 2. HEMA AGED 54 YEARS, D/O.MADHAVI WARASIAR RESIDING AT 'PRABHA' WARRIAM LANE THRISSUR VILLAGE, THRISSUR TALUK. 3. SUDHA AGED 43 YEARS,D/O. MADHAVI WARASIAR RESIDING AT PADAVARATTU WARRIATH ERAVIMANGALAM DESOM, NADATHARA VILLAGE THRISSUR TALUK. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- R.F.A.No.636 of 2009 & I.A.NO.4580 of 2009 --------------------------------------- Dated this the 25th day of May, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. The plaintiff is the appellant. She is the daughter of the 3rd defendant. Defendants 1 and 2 are the siblings of her late father. Alleging that the properties enured to the thavazhy of which the appellant's late father was a member, appellant sued for partition. The 3rd defendant, the mother of the plaintiff had transferred and executed documents in favour of the other defendants releasing the share of the 3rd defendant and also that of the plaintiff, who was then a minor. The 3rd defendant executed those documents as the natural guardian. Though those documents were executed, without obtaining leave of the court in terms of the Hindu Minority and Guardianship Act, 1956, the court below rightly applied the law laid down in Ramadas Menon v. Sreedevi {2004(1) KLT 323}, that no challenge to the transfer by the R.F.A.No.636 of 2009 :: 2 :: natural guardian is possible to set aside the alienation. Without seeking to set aside the alienation effected by the natural guardian sans court's sanction, the plaintiff cannot merely ignore the sale deed. That principle of law is fairly well settled by series of decisions including that laid down by the Division Bench in 2004 disentitlng the plaintiff to prosecute the suit filed in 2007. 2. Faced with this situation, an interlocutory application is filed along with this appeal seeking leave to amend the plaint by incorporating the relief to set aside the sale deed executed by the mother. The suit was filed in 2007. The plaintiff was 20 years old then. Now, when she seeks leave to amend the plaint, it is more than 6 years after her attaining majority. Obviously, the relief sought to be incorporated is time barred, can be granted. We are of the view that this is not a fit case where the application for R.F.A.No.636 of 2009 :: 3 :: amendment can be allowed ignoring the fact that the relief sought to be incorporated by amendment is time barred. We are also not impressed that the facts pleaded in the plaint forms the foundation for the plea that is now sought to be incorporated by amendment. For the aforesaid reasons, this appeal and the application for leave to amend the plaint are dismissed. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.