IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 RSA.No. 758 of 2011() --------------------- AS.175/2003 of SUB COURT,NEYYATTINKARA OS.409/1992 of PRL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/ PLAINTIFFS -LEGAL HEIRS OF THE ORIGINAL PLAINTIFF: --------------------------------------------- 1. ROSAMMA SHEELA, JOSE VILASOM BUGLOW, VELIYAMCODE, MARANELLOOR DESOM MARANELLOOR VILLAG,E NEYYATTINKARA 2. DEVADASAN JOSE, JOSE VILASOM BUGLOW VELIYAMCODE, MARANELLOOR DESOM MARANELLOOR VILLAG,E NEYYATTINKARA 3. DEVADASAN BIJU DAS, JOSE VILASOM BUGLOW VELIYAMCODE, MARANELLOOR DESOM MARANELLOOR VILLAG,E NEYYATTINKARA BY ADV. SRI.T.N.MANOJ SRI.SUMAN CHAKRAVARTHY RESPONDENTS/RESPONDENTS/DEFENDANTS-LEGAL HEIRS OF 2ND DEFENDANT: --------------- 1. CHELLAPPAN NADAR RAJU, UNDUVELIYIL THEKKEKKARA VEEDU, MARANELLOOR DESOM, MARANELLOR VILLAGE, NEYYATTINKARA 2. SETHU DEVADASAN, CHIRATHALAKKAL VEEDU, MARANELLOOR DESOM,MARANELLOOR VILLAGE 3. SATHI BALAKRISHNAN VATTAVILA PUTHEN VEEDU, PALLICKAL,THIRUVANATHAPURAM 4. VASANTHAKUMARI, D/O.LAKSHMIKUTTY, CHADRODAYAM,MARANELLOOR VILLAGE VELIYANCODE DESOM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.758 OF 2011 --------------------------------------------- Dated 13th July, 2011 JUDGMENT Additional plaintiffs in O.S.409/1992 on the file of Munsiff court, Neyyattinkara who were impleaded on the death of original plaintiff as his legal heirs filed the appeal challenging the preliminary decree granted by the learned Munsiff, as confirmed by the first appellate court. Learned Munsiff passed a preliminary decree directing division of the plaint schedule property into four shares and allotment of one share to the legal heirs of the plaintiff, obtained by the plaintiff under Ext.A1, rejecting his claim for the share of fifth defendant. Argument of the learned counsel appearing for the appellants is that under Ext.A1, Rajan, brother of fifth RSA 758/11 2 defendant assigned his share as well as the share of his sister, the then minor fifth respondent and hence courts below should have granted two shares to the appellants instead of one share. Learned counsel relied on the decision of the Full Bench of this court in Ramadas Menon v. Sreedevi (2004 (1) KLT 323 (FB) and argued that as the alienation made by Rajan, the brother of the fifth respondent is only voidable at the option of fifth respondent, who received the amount subsequently and did not challenge the alienation, courts below should have granted her share also to the appellants. 2. Admittedly, plaint schedule property originally belonged to Balakrishnan Nadar, the fourth respondent, who settled it in favour of his four children Rajan, Sreekumar, Santhosh Kumar and fifth respondent. Respondents 1 to 3 RSA 758/11 3 are the assignees of Sreekumar and Santhosh Kumar. Appellants contended that under Ext.A1 Rajan transferred his share as well as the share of the fifth respondent as her guardian and brother, as fifth respondent was a minor at that time and appellants are entitled to the said two shares. Even when the suit was filed father of the fifth respondent namely, fourth respondent, was alive. When the father is alive, Rajan, the brother cannot be the natural guardian of the fifth respondent. Therefore, alienation by Rajan is not an alienation by a natural guardian. The question considered by the Full Bench in Ramadas Menon's case (supra) is the validity of alienation effected by a natural guardian and whether it is void or voidable and whether it is to be set aside or could be ignored. Relying on Sub Section 3 of Section 8 of Hindu RSA 758/11 4 Minority and Guardianship Act, it was held that the alienation could only be voidable at the option of the minor or any person claiming under him and therefore, it is necessary to set aside the alienation effected by the natural guardian without sanction of the court and the minor cannot ignore the alienation. That decision cannot be applied to the facts of the case. 3. Section 8 deals with the power of natural guardian. Sub Section 2 provides that a natural guardian without the previous permission of the court shall not transfer, alienate or mortgage or charge the property of the minor. Sub Section 3 provides that if a natural guardian has disposed any property in contravention of Sub Section 1 or Sub Section 2, such disposal would be voidable, at the option of the minor or any person claiming RSA 758/11 5 under him. It has no application with regard to an alienation made by a person who is not the natural guardian of the minor, as in the instant case. As Rajan was not the guardian much less the natural guardian, appellants cannot contend that alienation of the share of fifth respondent, a minor Ext.A1 is only voidable. It is void. When it is void, even if fifth respondent has received any amount later as claimed by the appellants, it cannot validate the void transaction. Hence courts below rightly found that appellants are not entitled to the share of fifth respondent under Ext.A1. No substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.