IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 SA.No. 480 of 1998(F) ------------------------------ [AS.NO.6/1992 OF DISTRICT COURT, PATHANAMTHITTA, OS.NO.99/1990 OF SUB COURT, THIRUVALLA] .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- PREMKUMAR, AGED 26, S/O. RAMAN NAIR, RESIDING AT PARAKKATTU VEETTIL, VALLAMKULAM PADINJARE MURI, ERAVIPEROOR VILLAGE, FROM KUZHEEPARAMBIL VEETTIL,, MATHIL BHAGOM MURI, THIRUVALLA. BY ADV. SRI.R.RAJASEKHARAN PILLAI. RESPONDENTS/RESPONDENTS/DEFENDANTS 1, 2 & 4 TO 6: --------------------------------------------------------------------------------------- 1. CULTURAL DEVELOPMENT AND CHARITABLE SOCIETY NO.38, REPRESENTED BY GENERAL SECRETARY – PRAKASANDAPURI, RESIDING AT PARVATHI MANDIARAM, THIRUVALLA, MATHILBHAGOM MURI. *2. PARVATHIAMMA PADMAVATHI AMMA, RESIDING AT 87/181, ACHARYA NAGAR, NEAR ANVERGENCHU POST OFFICE, CONPURE-208003, UTTAR PRADESH FROM KUZHEEPARAMPILAYA PARATHI MANDIRATHIL, THIRUVALLA MATHILBHAGOM MURI. *(DIED). *THE DEATH OF 2ND RESPONDENT AND THE FACT THAT SHE IS SURVIVED BY THE APPELLANT AND THE RESPONDENT 3 TO 5 WHO ARE ALREADY ON RECORD, IS RECORDED VIDE ORDER DATED 27/07/10 IN MEMO DATED 21/08/08 BEARING OF 4910/08. 3. SUBASH, S/O. LATE RAMAN NAIR, DO. DO. 4. VIJAYAN, S/O. LATE RAMAN NAIR, DO. DO. S.A. NO.480/1998: 5. PADMAVATHIAMMA VALSALA, AGED 34, OF VADAYIRETHU VEEDU, PELA MURI, KANNAMANGALOM VILLAGE, MAVELIKARA TALUK FROM KUZHEEPARAMBIL, PARATHI MANDIRATHIL, THIRUVALLA MATHILBHAGOM MURI. R1 BY SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE, ADVS. SMT.L.P.ANITHA, SMT.S.USHA SAI. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 480 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of March, 2011. JUDGMENT Plaintiff is the appellant. 2. The plaintiff laid a suit seeking to have Exts.A1 and A2 set aside on behalf of the tarwad of which he claims to be a member. The plaint schedule property belonged to a Nair family of which the plaintiff's grandmother Parvathy Pillai and her sister Gouriamma were members. Gouriamma had a son by name Pratap and Parvathy Pillai had a daughter by name Padmvathy Amma. In 1952 as per Ext.B1 dated 16.8.1952 Gouriamma executed an Avakasa Ozhukuri in favour of Padmavathy Amma relinquishing her and her minor son's half right in the suit property, i.e,, 35 cents on the northern side and the building therein. The entire property was outstanding on a mortgage. It is claimed that the mortgage was later redeemed. In the year 1973, defendants 2, 4 and 6 and the third defendant acting as the S.A.480/1998. 2 guardian of the minor fifth defendant and the plaintiff executed Ext.A2 sale deed in favour of the first defendant. The said deed is assailed by the plaintiff saying that the executants had no authority to execute such a document and they were not competent to do so. The share belonged to the minors. The third defendant could not act as the guardian of the minors and that there was no sanction of law as required under law. On the basis of these grounds, the sale deed was sought to be set aside. 3. Except the first defendant, others remained ex- parte. In the written statement filed by the first defendant, he pointed out that the suit was not maintainable. As on the date of institution of the suit there was neither a tarwad nor a sakha existed and the plaintiff could not sue on that basis. It is pointed out that only 35 cents belonged to the sakha-tarwad and that property was in the possession of strangers under mortgage. That was redeemed by utilizing the funds of the first defendant. Various other transactions are made mention of in the written statement, which are not S.A.480/1998. 3 very relevant. However, the main contention seems to be that after the commencement of the Kerala Joint Hindu Family System (Abolition) Act, the plaintiff cannot maintain a suit as instituted by him. It is pointed out that at best the plaintiff can seek only 1/5th share in the property and on the basis of these contentions the first defendant prayed for a dismissal of the suit. 4. On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 and A2 from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B3 marked. Exts. C1 and C2 are the commission report and plan. 5. The trial court, as contended by the first defendant, found that the suit is not maintainable on behalf of a sakha after the commencement of the Kerala Joint Hindu Family System (Abolition) Act, Act 30 of 1976. It was also found that at best what the plaintiff would claim was S.A.480/1998. 4 only 1/5th share and not more. On the basis of these findings, the suit was dismissed. 6. The plaintiff carries the matter in appeal as A.S.6 of 1992. The lower appellate court concurred with the findings of the trial court and confirmed the decree. That brings the plaintiff before this court. 7. Notice is seen issued on the following questions of law: “i) Is not the decree and judgment of the courts below opposed to the legal principles enunciated by the Division Bench of this Hon'ble Court in 1997(2) K.L.T.5? ii) Is not Exts.A1 and A2 hit by section 8 of the Hindu Minority and Guardianship Act? iii) Does Ext.B1 enure to the benefit of the tharwad or would it confer exclusive right on the 2nd defendant? iv) Can the 2nd defendant and her mother convey the property by Ext.A2 to the exclusion of all other members? S.A.480/1998. 5 v) Does the Joint Hindu Family System (Abolition) Act have any bearing in the adjudication of the case?” 8. Learned counsel appearing for the appellant pointed out that since Ext.A2 is hit by Section 8 of the Hindu Minority and Guardianship Act, the document is ab initio void and the same is not binding on the plaintiff. According to learned counsel the court below ought to have set aside Ext.A1 sale deed and grant a decree to the plaintiff. 9. The contention is without any merits whatsoever. As rightly noticed by both the courts below after the commencement of the Kerala Joint Hindu Family System (Abolition) Act, Act 30 of 1976, there is no occasion to institute the suit on behalf of the sakha or tarwad as none exist thereafter. As rightly noticed by the trial court by the coming into force of the Kerala Joint Hindu Family System (Abolition) Act no joint family exists and at best the plaintiff is entitled to sue only with respect to his share in the S.A.480/1998. 6 property. The plaintiff may be justified in saying that there is violation of Section 8 of the Hindu Minority and Guardianship Act as far as his share is concerned. But he cannot sue on behalf of others, who are entitled to assign their shares. Leaving open the liberty of the plaintiff to claim his share in appropriate proceedings, this appeal is dismissed confirming the judgment and decree of the lower appellate court. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.