IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 SA.No. 776 of 1995() -------------------- AS.107/1989 of PRINCIPAL SUB COURT,TRIVANDRUM OS.1279/1984 of II ADDITIONAL.MUNSIFF COURT,TRIVANDRUM .................... APPELLANT/4TH RESPONDENT/4TH DEFENDANT: ----------------------------------------------------- PADMAVATHY, D/O.CHEMPAKUTTY, AGED ABOUT 61, RESIDING AT CHERUVATTYKONATHY VEEDU, CHEMPAZHANTHY MURI, ULIYAZHATHURA VILLAGE, TRIVANDRUM TALUK. BY ADV. SRI. K.SUDHAKARAN, SENIOR ADVOCATE SRI.V.JAYAKUMAR SRI.S.PRAKASH RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 3: ------------------------------------------------------- 1. SARADA, AGED 39, D/O.RAJAMMA RESIDING AT LEKSHMI VILAKAM VEEDU, POOJAPPURA, ARAMADA VILLAGE, TRIVANDRUM TALUK. 2. RAJAMMA, D/O.KARTHIYANI, AGED ABOUT 53, RESIDING AT PUTHUVAL PUTHENVEEDU, VATTAKARIKKAKOM, ULIYAZHATHURA VILLAGE, TRIVANDRUM TALUK. 3. GOPI, S/O.KUNJUKRISHNAN, AGED ABOUT 35, RESIDING AT PUTHYVAL PUTHEN VEEDU, -DO- -DO- 4. LALITHA, D/O.RAJAMMA, AGED ABOUT 30, RESIDING AT PUTHUVAL PUTHEN VEEDU, -DO- -DO- R1 & R3 BY ADV. SRI.G.S.REGHUNATH SRI.M.RAMASWAMY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 776 of 1995 ORDER ON C.M.P.NO.1887/1995 DISMISSED. 17.8.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.S TO JUDGE. HARUN-UL-RASHID,J. ------------------------------ S.A.NO.776 OF 1995 ------------------------------- DATED THIS THE 17TH DAY OF AUGUST, 2010 JUDGMENT The 4th defendant in O.S.No.1279/84 on the file of the Munsiff's Court, Thiruvananthapuram is the appellant. The appeal is directed against the judgment and decree in A.S.No.107/89 on the file of the Sub Court, Thiruvananthapuram. The suit was filed for partition. The trial court dismissed the suit. The Appellate Court set aside the decree and judgment passed by the trial court and granted a decree declaring that the plaintiff is entitled to partition and separate possession of ½ share of the plaint schedule property by metes and bounds, ignoring Ext.B1 sale deed, copy of which was marked as Ext.A1. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The plaint schedule property admittedly was jointly owned by the plaintiff and her mother, the lst defendant as per -2- S.A.No.776/95 partition deed No.1823/1950. The plaint schedule property is A schedule in the said partition deed. As per the partition deed, the plaintiff and the lst defendant had equal right over the property. The lst defendant mother had executed a sale deed in respect of the plaint schedule property in favour of the 4th defendant as per document No.3036 dated 4/11/1957. At the time of execution of the said sale deed, the plaintiff was a minor. Ext.B1 sale deed copy of which was marked as Ext.A1, was executed by the mother in her individual capacity and in respect of other ½ share as the guardian of the minor (plaintiff) in respect of minor's share. 3. According to the plaintiff, so far as the plaintiff's ½ share over the plaint schedule property is concerned, the sale deed (Ext.A1) is ab initio void and the plaintiff is entitled to get her share of the property ignoring the sale deed in favour of the 4th defendant. It is the plaintiff's case that at the time of execution of Ext.A1 sale deed in 1957 the plaintiff's father was her natural guardian and that the sale deed executed by the mother is -3- S.A.No.776/95 therefore void. The plaintiff filed the suit for partition and separate possession of her ½ share over the plaint schedule property. The suit was filed on the allegation that the cause of action arose on 2/1/1142, the date of attaining majority and on 13/2/1984, the date of knowledge of the document. 4. The 4th defendant alone contested the suit. It is contended that the suit is barred by limitation, that the lst defendant (mother of the plaintiff) has been in possession and enjoyment of the plaintiff's share for and on behalf of the plaintiff as the guardian. While so, the plaintiff's mother and father jointly executed the sale deed in respect of the property in favour of the 4th defendant in 1957, that the lst defendant-mother had executed sale deed for herself and on behalf of the then minor (plaintiff), that a portion of the sale consideration was utilised for obtaining a mortgage in respect of another property in favour of the plaintiff and defendants 1 to 3 and accordingly they are in possession and enjoyment of their property. It is also contended that the plaintiff on attaining majority had full knowledge about -4- S.A.No.776/95 the execution of the sale deed and utilisation of the sale consideration for the benefit of the plaintiff and that the plaintiff has not cared to question the document for the last 25 years, even after her attaining majority. Therefore, it is contended that the plaintiff cannot question the document at this stage. It is also stated in the written statement that 20 cents of land within the plaint schedule was conveyed by the 4th defendant in favour of his daughter and pursuant to the conveyance, his daughter is in possession and enjoyment of the said extent. 5. Ext.A1 sale deed was executed in the year 1957. During that period the plaintiff was a minor. The suit property stands in the name of the plaintiff and her mother. The lst defendant-mother executed a sale deed in her individual capacity and also for and on behalf of her minor daughter. The plaintiff got married in the year 1970. When examined as PW1, she testified before the court below that she had knowledge about the execution of the sale deed before her marriage. According to the plaintiff, she attained majority on 21st Chingam 1142, i.e. -5- S.A.No.776/95 prior to her marriage. The suit was filed after more than 14 years of the plaintiff attaining majority. In the plaint it is pleaded that her father was the natural guardian at the time of execution of Ext.A1 sale deed and therefore the sale deed executed by the mother is void. This is the only pleading challenging the sale deed executed in favour of the 4th defendant. In the plaint it is not even stated that the mother is not competent to execute the sale deed nor she had right to execute the sale deed. The defendant contended that the sale deed was executed by the mother with the consent and knowledge of the father. Such a case set up by the defendant is true, since the father is an attester to Ext.A1 sale deed. 6. The only question raised in the suit apart from limitation is as to whether the mother can execute the sale deed, when father is alive. PW1, when examined, testified before the court below that the pleadings in the plaint were stated as per the instructions of her mother, who is the lst defendant in the suit. She testified that her mother will not do any act against her -6- S.A.No.776/95 interest and that the father and mother resided together with the plaintiff before her marriage. 7. The sale deed was executed by the mother conveying not only the share of the minor but also her share as well . The sale deed was executed in the year 1957. Father acted as an attester to the sale deed. The sale deed was executed by the mother with full knowledge and consent of the father, that the execution of the document by the mother and the testimony of PW1 show that the mother was taking interest in the affairs of the minor and that the mother was protecting the interest of the minor during the relevant period. Plaintiff herself testified before the court below that her mother never acted against her interest. In the circumstances, it can be assumed that the sale deed was executed by the mother in the interest of her minor daughter, who was during the relevant time under the protection and interest of the mother. 8. The Supreme Court in the decision reported in Githa Hariharan v. Reserve Bank of India (AIR 1999 SC -7- S.A.No.776/95 1149) considered the question as to whether the mother can act as natural guardian of minor even when father is alive. The Apex Court held as follows: “While both the parents are duty bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father, who would be deemed to be 'absent' for the purpose of Section 6(a) of HMG Act and Section 19(b) of GW Act. In our opinion the word 'father' shall have to be given a meaning which would sub- serve the need of the situation viz. welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word 'after' does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as 'in the absence of' -- be it temporary or otherwise or total apathy of the -8- S.A.No.776/95 father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word 'after' as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.” 9. The Apex Court held that even when the father is alive, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father who would deemed to be absent for the purpose of Section 6(a) of the Hindu Minority and Guardianship Act and Section 19 (a) of the Guardians and Wards Act. 10. The Apex Court held that the definitions of 'guardian' and 'natural guardian' do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4(c), that the only provision to which exception is taken is found in Section 6(a) which reads “ the father, and after him, the mother” and that phrase, on a cursory reading, does given an -9- S.A.No.776/95 impression that the mother can be considered to be natural guardian of the minor only after the life time of the father. 11. The plaintiff has no case that the mother alienated the property without the previous permission of the court or that the alienation is not for the benefit of the minor. The property was sold to the 4th defendant in the year 1957 and the suit was filed in the year 1984, i.e. after the period of 27 years. It is testified by the plaintiff that the suit itself was filed with the support and at the instigation of the mother and that the mother briefed the lawyer in the matter of preparation of the plaint. Ext.A1 sale deed was executed by the mother alienating her share and the plaintiff's share. Being a natural guardian alienation of the property on behalf of the minor is a valid action. Going by the Apex Court's decision cited above, the mother being a natural guardian is competent to execute the sale deed for and on behalf of the minor. The only question raised by the plaintiff in the plaint is that the mother is not a natural guardian and therefore Ext.A1 sale deed is void. She has no case that -10- S.A.No.776/95 Ext.A1 is invalid, since it was executed without any legal necessity and without obtaining permission of the court or for the benefit of the minor. 12. The next question is whether Ext.A1 is void or voidable. I am of the view that the mother being a natural guardian is entitled to execute Ext.A1 sale deed for and on behalf of the minor. In the plaint there is no prayer to get the alienation set aside. Even with out a prayer for setting aside Ext.A1 sale deed, the suit was filed for partition and separate possession of the plaintiff's share. Since the mother being the natural guardian is competent to execute the sale deed, the suit itself is not maintainable. In the decision reported in Vishwambhar and others v. Laxminarayana (AIR 2001 SC 2607) the Apex Court held that the plaintiffs were required to get a voidable alienation set aside, if they wanted to avoid the transfers and regain the properties from the purchasers. The Full Bench of this Court in the decision reported in Ramadas Menon v. Sreedevi (AIR 2004 Kerala 126) following the Apex Court's decision cited -11- S.A.No.776/95 supra, held that voidable transactions have to be challenged and without a prayer for setting aside the alienation, no relief can be obtained. Following the aforesaid decision I hold that Ext.A1 transaction is a voidable one and that the suit is not maintainable without a prayer for setting aside the alienation. 13. It is admitted in the plaint itself that the plaintiff has attained majority on 21/1/1142 M.E. i.e. at the time of filing of the suit she was aged 34 or 35. It is stated in the plaint that the plaintiff has got knowledge about the document only on 13/2/1984 and the suit was filed on 1/9/1984. The period of limitation for the institution of the suit for declaration is 3 years from the date when the minor attained majority. Plaintiff when examined as PW1 admitted in cross-examination that she had been residing with her father and mother till March 1970 and she has got information about Ext.A1 sale deed from her father just before her marriage. Thus it is clear that the plaintiff has got knowledge about the execution of Ext.A1 sale deed as early as in 1970. Even after getting information about the execution of -12- S.A.No.776/95 Ext.A1 sale deed, the plaintiff has let so many years to pass by and she has not filed the suit within three years from the date of attaining majority and therefore the suit is barred by limitation. For all these reasons the plaintiff is not entitled to any relief in the suit. In the result, the appeal is allowed. The judgment and decree passed by the Appellate Court in A.S.No.107/89 is set aside and the judgment and decree passed by the trial court dismissing the suit is restored. No order as to costs. Sd/- HARUN-UL-RASHID, JUDGE. kcv.