IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 SA.No. 246 of 1998(D) ---------------------------- AS.26/1992 of PRL.SUB COURT, KOZHIKODE OS.1087/1988 of PRL.M.C.KOZHIKODE-II .................... APPELLANT(S): RESPONDENT/ 1TO 7/PLAINTIFFS -------------------------------------------------------------------------- 1. THAIKKALATHU SHEEBA, D/O.ASOKAN, KUNNANGALAM AMSOM, KARANTHUR DESOM, KOZHIKODE TALUK AND DISTRICT. 2. BROTHER BINNY, DO. DO. 3. BROTHER MANI, DO. DO. 4. SISTER MINI, DO. DO. 5. BROTHER BIJU, DO. DO. 6. SISTER BABY, DO. DO. 7. THAIKKALATHU SATHYAVATHY, W/O. ASOKAN VYDIAR,KUNNAMANGALAM AMSOM, KARANTHUR DESOM, KOZHIKODE TALUK AND DISTRICT BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): APPELLANT & R9 --------------------------------------------------- 1. VADAKKE THALASSERI MUHAMMED, S/O. ASSAN KOYA, KUNNAMANGALAM AMSOM AND DEOSM, KOZHIKODE TALUK AND DISTRICT. 2. THAIKKALATHU JAYACHANDRAN, S/O. ASOKAN VYDIAR BY ADVS. SRI.V.V.SURENDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2011, ALONG WITH SA NO. 260 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. --------------------------------------------------- SA Nos.246 & 260 of 1998 --------------------------------------------------- Dated this the 7th day of January 2011 Judgment The plaintiffs in OS No.1087/88 before the Munsiff's Court, Kozhikode, are the appellants before this court. 2. They instituted the suit for setting aside Ext.A9 sale deed and for partition. The plaintiffs received the property as per Ext.A2 gift deed from their grandfather. The allegation in the plaint was that their father, who was the second defendant in the suit, without any necessity, has assigned the property to the first defendant without obtaining permission of the court as required under Section 8 of the Hindu Minority and Guardians Act and therefore, the assignment is liable to be set aside. Consequentially, they also sought for partition. 3. The first defendant resisted the suit by pointing out that the property was sold for family necessity SA Nos.246 & 260/98 2 and it was supported by consideration. The amount so realised was utilised for discharging the debt due under Ext.A2 and therefore, the sale in his favour, evidenced by Ext.A9 is valid. He also contended that the valuation of the suit is incorrect. According to him, the plaintiffs are not in joint possession of the property. He, therefore, prayed for dismissal of the suit. 4. On the basis of the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A12 from the side of the plaintiffs. The defendants had DW1 examined. No documents were marked from the side of the defendants. 5. The trial court, on an evaluation of the materials before it, found that the assignment as evidenced by Ext.A9 is invalid in law and has to be set aside. It was also found that since there are other properties also covered by the gift deed, the relief for partition cannot be granted and therefore, the suit was dismissed. SA Nos.246 & 260/98 3 6. The first defendant as well as the plaintiffs went up in appeal. The first defendant filed AS No.26/92 (shown as AS 65/92) whereas the plaintiff filed AS No.32/92 (shown as 82/92) before the Sub Court, Kozhikode. The lower appellate court dismissed both the appeals. Hence these second appeals. 7. Notice is issued on the questions of law raised in the second appeals, which read as follows : 1.Whether in the facts and circumstances of the case, having found that the appellants are entitled to share and the assignment deed was executed only by R2 at a time when the appellants were minors, the lower appellate court could have disallowed the prayer to set aside the alienation ? 2.Whether in the facts and circumstances of the case, the court was legally correct in finding that 'if the gift in favour of unborn person is a valid gift Ext.A9 cannot be set aside' especially when it had found that 'I have no hesitation to hold that a gift in favour of unborn person SA Nos.246 & 260/98 4 cannot be made invalid simply on the ground that an unborn person is incapable of accepting the gift.' 3.Whether in the facts and circumstances of the case, in so far as the courts have omitted to take note of the documentary and oral evidence that no portion of the plaint schedule property remained to be included and that all the other properties gifted excepting the house and its appurtenant area were assigned away by the second respondent, the judgments and decrees are legal and correct, as they are not based on the evidence in the case, but only on surmises. 4.Whether in the facts and circumstances of the case, the lower courts were legally correct in refusing partition after finding that the appellants are entitled to share. 5.Whether in the facts and circumstances of the case, as the parties were co-owners and as the plaint schedule property is one of the items belonging to them in its entirety, the courts could have found that the suit is bad for partial partition especially when there is no specific SA Nos.246 & 260/98 5 plea of partition but only stated that the first respondent can claim in equity to get this property allotted to the share of the second respondent, only if all the properties gifted are included in this suit. 6.Whether in the facts and circumstances of the case, when some of the properties gifted have already been ordered to be partitioned, after setting aside the assignments in respect of them, by decrees of civil courts which have become final can the court find that all the properties gifted should be included in this suit ? 8. To say the least, both the judgment and decree are unsustainable in law. Going by any stretch of imagination, having found that the assignment in favour of the first defendant evidenced by Ext.A9 is bad in law and having set it aside, the relief of partition could not have been denied. The reasoning given by the trial court for declining the relief of partition is clearly unsustainable in law. The lower appellate court finds that the finding of the trial court is bad in law and unjustified. Obviously, the lower SA Nos.246 & 260/98 6 appellate court should have decreed suit. Instead, it dismissed both the appeals. 9. The learned counsel for the respondents tried to sustain the assignment in favour of the first defendant by pointing out that even going by the terms of Ext.A2, there was a liability to be discharged and that liability was discharged utilising the sale consideration obtained under Ext.A9. Therefore, it was a family necessity. 10. To say the least, the contention is the least attractive. Both the courts below have found that the said contention is not acceptable for various reasons. There is no reason to take a different view. After having found that the assignment under Ext.A9 is valid, preliminary decree for partition should have followed. Of course, what at best, the first defendant can have is to seek the shares of defendants 2 and 3 set apart in such a manner so as to cover the properties sold to him. The total extent is 1 acre 11 cents. The learned counsel for the appellant pointed out that there are two other suits which have been decreed SA Nos.246 & 260/98 7 for similar reliefs and there is no objection in observing that that as far as possible, the shares set apart to defendants 2 and 3 in the suit may cover the property sold to the first defendant. In the result, both these appeals are allowed. The judgment and decree of both the courts below are set aside and the following decree is passed : 1.The finding of the trial court that Ext.A9 is invalid, is sustained. 2.The plaint schedule property shall be partitioned into eight shares and six of the shares shall be allotted to the plaintiffs. 3.As far as possible and if it is equitable to do so, if the entire properties covered by Ext.A2 is sought to be partitioned, then the shares due to defendants 2 and 3 shall be so set apart as to take in the property covered by the sale in favour of the first defendant. SA Nos.246 & 260/98 8 4.If no other property, as of now, is available for partition except the suit property, then clause (3) mentioned above will have no effect. P.Bhavadasan, Judge sta SA Nos.246 & 260/98 9