IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 RSA.No. 608 of 2007() --------------------- AS.19/1996 of SUB COURT, OTTAPPALAM OS.16/1985 of MUNI-MAGI.COURT,MANNARKAD .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------------------ 1. MOHANADASAN, S/O. ATTASSERI LATE DAKSHAYANI AMMA. 2. NIRMALA, D/O. ATTASSERI LATE DAKSHAYANI AMMA. 3. CHINTHAMANI, D/O. ATTASSERI LATE DAKSHAYANI AMMA. ALL ARE RESIDING AT POTTASSERI AMSOM, DESOM, PALAMATTA IN MANNARKKAD TALUK. BY ADV. SRI.R.SREEHARI ADV. SRI.E.R. VENKITESWARAN RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------ LEELAVATHY AMMA, D/O. ATTASSERI KUNHILAKSHMI AMMA, VIYA KURUSSI AMSOM, DESOM IN MANNARKKAD TALUK. ADV. SRI.SANTHEEP ANKARATH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 608 of 2007() 2 ORDER IN I.A No.1269/2007 DISMISSED. 13/01/2011 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A To Judge S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.608 OF 2007 -------------------------------- Dated this the 13th day of January 2011 JUDGMENT The defendants in a suit for partition are the appellants. Preliminary decree and judgment passed in the suit accepting and upholding the contention of the present appellants/defendants was modified in appeal by the lower appellate court. To the extent the appellants are aggrieved thereby, the defendants have filed the present appeal. 2. Short facts necessary for disposal of the appeal can be summed up thus. Kunhilakshmi Amma and her two daughters, the plaintiff and also Dakshayani Amma, under Ext.B1 deed, obtained title over 18 ¼ cents of property. The defendants in the suit are the children of Dakshayani Amma, who predeceased Kunhilakshmi Amma. After the death of Dakshayani Amma, Kunhilakshmi Amma and the plaintiff, both of them together, and the former, representing the defendants, who were then minors, as their guardian, executed Ext.A1 gift deed covering an extent of four cents in Ext.B1, in favour of the husband of the plaintiff. Kunhilakshmi Amma and the plaintiff, both of them together, had also alienated five cents of property in Ext.B1 deed. Plaintiff claimed partition and separate possession of 13/24 share in the remaining property, ie, 9.14 cents with mesne profits and cost. So far as the five cents of R.S.A No.608 OF 2007 - 2 - property conveyed to a third party, the defendants had no challenge, but, in respect of Ext.A1 gift deed executed in favour of the husband of the plaintiff by the plaintiff and her mother Kunhilakshmi Amma representing the defendants who were minors then as their guardian by the latter, they contended, it was inoperative and void as the grand mother was not their natural guardian. The trial court, impressed with the challenge so canvassed by the defendants, forming a conclusion that Ext.A1 gift deed was void, passed a preliminary decree for partition of 13 ¼ cents in accordance with the shares due to the parties. With respect to the determination of the shares applicable for division, as the defendants had some grievance, they preferred an appeal impeaching the correctness of the preliminary decree and judgment seeking revision. In such appeal, the plaintiff preferred cross objections contending that the suit property constituted a joint family property and as such, the grand mother of the defendants, Kunhilakshmi Amma, was competent to represent them as their guardian and execute Ext.A1 gift deed. The cross objections so filed by the plaintiff being upheld by the lower appellate court with the appeal of the defendants dismissed as meritless, resulted in modification of the preliminary decree passed by the trial court limiting the extent of the land to be partitioned as 9 ¼ cents, as R.S.A No.608 OF 2007 - 3 - canvassed for by the plaintiff in the suit. Impeaching the correctness of the decision so rendered by the lower appellate court, and contending that Ext.A1 gift deed executed by late Kunhilakshmi Amma representing the defendants, who were then minors, as their guardian, was void, the present Second Appeal has been preferred by them. 3. Substantial questions of law raised for hearing in the appeal are the following: i) Whether on the facts and circumstances of the case is the appellate court justified in holding that Ext.A1 gift deed is binding on the defendants overlooking the law contemplated under Section 8 of Hindu Minority and Guardianship Act? ii)Whether on the facts and circumstances of the case is the court below justified in holding that Section 17 of Hindu Succession Act will apply instead of Section 15 of Hindu Succession Act? iii)Whether the suit is bad for partial partition? 4. I heard the counsel on both sides. Irrespective of the question whether Section 8 or 12 of the Hindu Minority and Guardianship Act applies in the present case to determine the validity of Ext.A1 gift deed, which is impeached by the defendants as void, a larger question of much more significance as to how far the defendants are entitled to impeach that gift deed emerge for R.S.A No.608 OF 2007 - 4 - consideration. This court, in “Ramadas Menon v Sreedevi” (2004(1) KLT 323 FB) has held without setting aside the alienation by challenging the same, no relief can be canvassed for impeaching the alienation effected by the guardian without sanction as such transfers are only voidable and not void. On the fact situation presented in the case, it remains undisputed that the defendants who were represented by their maternal grand mother as their guardian in Ext.A1 gift deed have not challenged the alienation and moved for setting it aside within the time fixed under law after attaining of their majority. Such being the position, the challenge now canvassed by them in the suit to contend that Ext.A1 gift deed is void imputing that Kunhilakshmi Amma, their grand mother, was incompetent to represent them as their guardian, has no legal force or merit at all. So much so, the challenge pressed into service to impeach the correctness of the decision rendered by the lower appellate court, modifying the preliminary decree passed in the case, has no merit, and in fact, no substantial question of law as framed arise for consideration. The appeal is dismissed directing both sides to suffer their costs. Sd/- S.S.SATHEESACHANDRAN, JUDGE vdv //True Copy// P.A to Judge