IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 AS.No. 251 of 1996() -------------------- OS.202/1991 of SUB COURT, PAYYANNUR .................... APPELLANT/PLAINTIFF: ----------------- MANIMALAYIL ABRAHAM, SON OF ABRAHAM, AGED 33 YEARS, RESIDING AT PAYATTUCHAL, NIDIYENGA AMSOM, CHEPPARAMBA DESOM OF TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS/DEFENDANTS: --------------------- 1. ELAVANAPPARA ANNAMMA @ LISLSY, D/O. ANTHONY, 30 YEARS, RESIDING AT ERUVASSI AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 2. ELAVANAPPARA MARGRET, D/O.ANTHONY, 24 YEARS, RESIDING AT ;NADUVIL AMSOM DESOM, NADUVIL P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. ADV. SMT.ELAVANAPPARA ANNAMMA(PARTYIN PERSON FOR R1 SRI.M.SASINDRAN FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.1L619/1996 IN A.S.NO.251/1996 ----------------------- DISMISSED 9/12/2009 Sd/- HARUN-UL-RASHID, JUDGE. HARUN-UL-RASHID,J. -------------------------- A.S.NO.251 OF 1996 -------------------------- DATED THIS THE 9TH DAY OF DECEMBER, 2009 JUDGMENT Plaintiff in O.S.No.202/91 on the file of the Sub Court, Payyannur is the appellant. The suit was filed for realisation of money. The court below dismissed the suit. Hence this appeal. The parties hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The subject matter of the suit is 1/3 share in 2 acres and 2 ½ cents comprised in R.S.No.1/1 of Nidyanga Village. The said 2 acres and 2 ½ cents originally belonged to Sri Antony. He has gifted the property in favour of his children namely, defendants 1, 2, Thresayamma and Philomina as per the gift deed dated 19th August, 1981. At the time of execution of the gift deed the 2nd defendant was a minor. Subsequently, partition was effected between the sharers. The extent of 2 acres and 2 ½ -2- A.S.No.251/`1996 cents was allotted jointly to defendants 1, 2 and Philomina. At the time of partition, the 2nd defendant was under the care and protection of the lst defendant, who is her elder sister. The lst defendant and Philomina, who are the owners of 2/3 share, transferred their share to the plaintiff as per Ext.A2 sale deed dated 19/10/1985. Subsequently, on 3rd October, 1986 the lst defendant as guardian transferred the share of the 2nd defendant- minor in favour of the plaintiff. Thus, the plaintiff came into possession and enjoyment of the entire 2 acres and 2 ½ cents of property. 3. The 2nd defendant attained majority on 14th January, 1990. After attaining majority, the 2nd defendant filed O.S.No.291/91 for partition and separate possession of her share over 2 acres and 2 ½ cents of land. Ext.B1is the copy of the plaint. The same document was marked as Ext.A3 as well. The suit was filed for partition of 1/3 share ignoring Ext.A1 document. According to the 2nd defendant, Ext.A1 document -3- A.S.No.251/`1996 executed by the lst defendant for and on her behalf is void ab initio. Subsequently, the suit was dismissed as not pressed. Ext.B2 is the judgment. Before dismissal of the said suit, the 2nd defendant has executed a document in favour of PW3 transferring her share in the property. Ext.X2 is the sale deed. The present suit was filed by the plaintiff on the allegation that the 2nd defendant transferred her share to PW3 by Ext.X2 document and therefore she has lost title as well as possession over the property and therefore she is entitled to realise the consideration paid by him to the lst defendant namely, Rs.10,000/-. She also claimed the value of improvements. The claim amount is Rs.46,116/-. The trial court, after referring to the various provisions of the Guardian and Wards Act, held that the lst defendant is the guardian of the 2nd defendant and in that capacity the lst defendant transferred her property in favour of the plaintiff. 4. On the basis of Exts.A1 and A2 sale deeds, the -4- A.S.No.251/`1996 plaintiff acquired title and possession over the entire 2 acres and 2 ½ cents. The trial court held that the right of the 2nd defendant over the property was transferred by her guardian in 1986. Therefore, at the time of execution of Ext.X2 document, the 2nd defendant was not the title holder. So, Ext.X2 document is not capable of conveying any title over the property to PW3 on 9th October, 1991. In the said circumstances, the trial court declared that the plaintiff has title and possession over the entire property. Since the plaintiff is the title holder and is in possession and enjoyment of the entire 2 acres and 2 ½ cents, the present suit was dismissed finding that the plaintiff is not entitled to claim return of the amount paid as consideration from the defendants. The trial court held that Ext.X2 document executed by the 2nd defendant in favour of PW3 is a void document. Since Exts.A1 and A2 documents had taken effect, the 2nd defendant is not competent to transfer the right which she did not have at the time of execution of Ext.X2 document. The trial court held that since -5- A.S.No.251/`1996 the 2nd defendant did not choose to approach the court below to set aside the document, she is not competent to execute a deed of transfer in favour of PW3. 5. In the facts and circumstances discussed above, the view taken by the trial court that the plaintiff is not entitled to any reliefs claimed in the plaint is sustainable. The plaintiff continued to enjoy the property and therefore, the trial court rightly held that the plaintiff is not entitled to realise any amount from the defendants. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.